J-S52042-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
MUHAMMAD H. QUDOOS, :
:
Appellant : No. 1983 EDA 2015
Appeal from the Judgment of Sentence June 9, 2015,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No: CP-51-CR-000497-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 24, 2016
Muhammad H. Qudoos (Appellant) appeals from the judgment of
sentence imposed following his conviction for disorderly conduct. Upon
review, we affirm.
The trial court summarized the background underlying this case as
follows.
On August 23, 2014, [Appellant] was arrested and charged
with disorderly conduct in connection with events that occurred
at or near 5616 Walnut Street in the City and County of
Philadelphia.
[On that date,] Philadelphia Police Officer Eugene Roher
and his partner, Officer Olesik (first name not given) were on
routine patrol, in full uniform, in a marked vehicle, when they
encountered [Appellant] (and other unidentified individuals) on
the corner of 56th and Walnut Streets. Officer Roher and his
partner attempted to disperse the crowd from the corner by
asking everyone to move off the corner. Everyone left the
corner except for [Appellant] who told the officers that he was
not on the corner. According to Officer Roher, [Appellant] was
directly on the corner and refused to move. Since he did not
*Retired Senior Judge assigned to the Superior Court.
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move from the corner as directed, Officer Roher and his partner
exited their patrol car to do a pedestrian stop of [Appellant]. As
the officers approached, [Appellant] started yelling and cursing
at them. People started to come out of their houses, his friend
(who had been on the corner with him) returned, [Appellant]
yelled “record this” to no one in particular, and screamed more
profanities. At this point, Officer Roher decided to arrest
[Appellant] for disorderly conduct. As Officer Roher attempted
to place him under arrest, [Appellant] began flaring his
shoulders, tensed his body, and would[ not] allow either officer
to place the handcuffs on him. [Appellant] continued to yell
profanities and for someone to record the encounter.[1]
Eventually [Appellant] allowed the officers to place handcuffs on
him. [Appellant] did not testify or present additional evidence
[at trial].
[Appellant] was convicted of disorderly conduct and was
sentenced to twelve (12) months of probation. The Defenders
Association of Philadelphia represented [Appellant] at trial and
sentencing.
[Appellant] filed a notice of appeal to the Superior Court.
On August 21, 2015, this court filed an order requesting
[Appellant] to file a statement of matters complained of on
appeal pursuant to Pa. R.A.P. Rule 1925(b). On September 11,
2015, a statement of errors complained of on appeal was filed on
behalf of [Appellant]. [The trial court issued its opinion pursuant
to Pa.R.A.P. 1925(a) on October 7, 2015.]
Trial Court Opinion, 10/7/2015, at 1-2 (footnote and unnecessary
capitalization omitted).
On appeal, Appellant argues that the evidence is insufficient to sustain
his conviction as well as its grading as a third degree misdemeanor as
opposed to a summary offense.
1
In addition to yelling “record this,” Appellant yelled “Don’t come near me”
and profanities including “Don’t fucking touch me” during the course of the
interaction. N.T., 6/9/2015, at 13-14.
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Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to
the Commonwealth as verdict-winner, are sufficient to establish
all elements of the offense beyond a reasonable doubt. We may
not weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant’s guilt unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. When evaluating the credibility and weight of the
evidence, the fact-finder is free to believe all, part or none of the
evidence. For purposes of our review under these principles, we
must review the entire record and consider all of the evidence
introduced.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(citation omitted).
Appellant was convicted of violating subsection 5503(a)(1) of the
Crimes Code.
[That subsection] provides: A person is guilty of disorderly
conduct if, with intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof, he: (1) engages in
fighting or threatening, or in violent or tumultuous behavior.
“Tumultuous” is not defined in Section 5503 or elsewhere in the
Crimes Code. Commonly, “tumultuous” is defined as “marked by
tumult”; “tending or disposed to cause or incite a tumult”; or
“marked by violent or overwhelming turbulence or upheaval.”
“Tumult” is relevantly defined as “a disorderly agitation ... of a
crowd usu. [sic] with uproar and confusion of voices,” or “a
violent outburst.”
Commonwealth v. Love, 896 A.2d 1276, 1285 (Pa. Super. 2006) (citations
and some quotation marks omitted).
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“[W]hether a defendant’s words or acts rise to the level of disorderly
conduct hinges upon whether they cause or unjustifiably risk a public
disturbance. The cardinal feature of the crime of disorderly conduct is public
unruliness which can or does lead to tumult and disorder.” Commonwealth
v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (quoting Commonwealth v.
Hock, 728 A.2d 943, 946 (Pa. 1999)) (emphasis omitted).
The mens rea requirement of [section 5503] demands proof that
appellant by his actions intentionally or recklessly created a risk
or caused a public inconvenience, annoyance or alarm. The
specific intent requirement of this statute may be met by a
showing of a reckless disregard of the risk of public
inconvenience, annoyance, or alarm, even if the appellant’s
intent was to send a message to a certain individual, rather than
to cause public inconvenience, annoyance, or alarm.
Commonwealth v. Troy, 832 A.2d 1089, 1094 (Pa. Super. 2003) (internal
quotations and citations omitted).
Appellant argues that the evidence is insufficient to sustain his
conviction because he did not act with the requisite intent, nor did he
engage in fighting, threatening, or violent or tumultuous behavior.
Appellant’s Brief at 9. He maintains that his “statements occurred during a
single, police-initiated interaction, during which [he] walked away from the
police,” and that under the law one may disagree with law enforcement even
when it is through the use of loud, objectionable language that causes a
crowd to form. Id. at 13, 15. Appellant also points out that he did not
threaten to harm the police, nor did his statements aid anyone breaking the
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law, and argues that this case constitutes an example of the impermissible
use of the disorderly conduct statute as a “dragnet to punish critical
statements that might breed ferment in the community.” Appellant’s Brief
at 12, 15, 17-18 (relying upon Hock, 728 A.2d at 947).
The testimony offered at trial demonstrates that during the incident in
question, Appellant refused to listen to the officers’ command to leave the
corner and then proceeded to yell and curse at the officers. N.T., 6/9/2015,
at 11-14. As a result of Appellant’s actions, approximately 10-15 people
came out of their houses and another individual, who previously had left the
scene in response to the officers’ command “without any problems,”
returned and started to “yell at [Officer Roher] and [his] partner” as well.
Id. at 11-12, 14. As the people were coming out of their houses, Appellant
started to yell “record this” and was cursing at the officers. Id. at 14. As
the officers then attempted to place him into custody, he began to flare his
shoulders, tensed his body up, would not allow the officers to cuff him, and
“kept screaming … trying to get his friends to record what was going on.”
Id. at 15. Eventually, Appellant said that he was “going to let [the officers]
cuff [him]” and “put his hands behind his back.”2 Id.
2
Officer Roher further testified that he “just wanted to leave the scene. It
was already -- it was already too much going on because that’s where
[Appellant] -- he hangs out and all of his friend are there. So just to get out
of the situation, after we got him into the vehicle, we left.” N.T., 6/9/2015,
at 19.
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This evidence, viewed in the light most favorable to the
Commonwealth, is sufficient to support Appellant’s conviction for disorderly
conduct in that, at the least, he recklessly created a risk of public
inconvenience, annoyance, or alarm by engaging in tumultuous behavior.3
See Commonwealth v. DeLuca, 597 A.2d 1121 (Pa. 1991) (evidence was
sufficient to establish defendant created a risk of causing public alarm,
annoyance, or inconvenience where DeLuca shouted “Get out of my
f[ucking] way” at an officer after officer requested that he not leave the
scene of a stabbing, where a crowd of 30 to 50 people had gathered, and
then pushed the officer’s hands off his shoulders and stated “Yes I’m
leaving. Get the f[uck] out of my way” when officer repeated the
instruction); Love, 896 A.2d at 1285 (defining “tumultuous behavior”). Cf.
3
Appellant contends that the officers’ command to leave the corner was
“unlawful” and that their subsequent interaction with Appellant constituted
an “unlawful[] stop[].” Appellant’s Brief at 9, 12. He cites no authority in
support of those claims. Even assuming the officers’ conduct was unlawful,
however, we agree with the Commonwealth that it is “irrelevant in assessing
his behavior upon reacting to the officers’ presence.” Commonwealth’s Brief
at 12 n.3. See Commonwealth v. Weiss, 490 A.2d 853, 856 n.3 (Pa.
Super. 1985) (“We do note, however, that appellant’s belief (mistaken or
otherwise) in her justification in taunting the police would not vitiate her
recklessness with regard to annoyance or alarm of members of the public in
the vicinity.”); Commonwealth v. Hughes, 410 A.2d 1272, 1274 (Pa.
Super. 1979) (“Appellant’s challenge to the Commonwealth’s proof of intent,
based on her assertion that ‘appellant used obscene language because she
thought she and co-defendant were arrested without cause’ is likewise
without merit. Appellant’s mistaken belief in her justification in taunting the
police does not vitiate her recklessness with regard to annoyance of the
other members of the public in the vicinity.”) (citation omitted).
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Hock, 728 A.2d at 946-47 (concluding that there was no violation of
subsection 5503(a)(1) giving officer probable cause to arrest where “Hock’s
single epithet, uttered in a normal tone of voice while walking away from the
officer, did not alarm or frighten him, and there were no bystanders”).
Appellant next contends that the evidence was insufficient to support
the grading of the crime as a third-degree misdemeanor as opposed to a
summary offense. Specifically, Appellant alleges that the trial court’s
justification for grading the offense as a third-degree misdemeanor was that
Appellant had yelled for someone to record the interaction,4 which Appellant
argues was improper because his pleas were protected speech, not said with
the intent to cause substantial harm or serious inconvenience, and part of a
constitutionally protected national “political discussion encouraging citizens
to record police activities.” Appellant’s Brief at 18, 20-21.
A disorderly conduct offense “is a misdemeanor of the third degree if
the intent of the actor is to cause substantial harm or serious inconvenience,
or if he persists in disorderly conduct after reasonable warning or request to
desist. Otherwise disorderly conduct is a summary offense.” 18 Pa.C.S.
§ 5503(b).
4
Upon review, we agree with the Commonwealth that Appellant
mischaracterizes the trial court’s reasoning and, in any event, conclude that
Appellant is not entitled to relief for the reasons stated herein.
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As stated above, disorderly conduct is graded as a third-degree
misdemeanor if, inter alia, “the actor … persists in disorderly conduct after
reasonable warning or request to desist.” Here, the following testimony was
offered at Appellant’s trial.
[Commonwealth]: Did you ask [Appellant] to stop yelling?
[Officer Roher]: Yes, several times.
[Commonwealth]: When?
[Officer Roher]: When we were out on Walnut Street, just
basically trying to calm the situation down, versus -- take
something small than making a big deal out of it.
N.T., 6/9/2015, at 16. This testimony, combined with the testimony
regarding Appellant’s continued yelling throughout the incident, id. at 13-15,
is sufficient to support Appellant’s conviction as a third-degree misdemeanor
when viewed in the light most favorable to the Commonwealth. See
Commonwealth v. Schwartz, 615 A.2d 350, 361 (Pa. Super. 1992)
(holding that the evidence sufficiently supported a conviction of disorderly
conduct as a third-degree misdemeanor where Schwartz was screaming at
police and another individual and one of the officers testified that he warned
Schwartz to be quiet, but Schwartz persisted in screaming).
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Appellant has failed to establish that he is entitled to relief.5
Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
5
To the extent our reasoning in affirming Appellant’s conviction could be
construed as differing from the trial court, we note that “[w]e may … affirm
the trial court’s decision on any valid basis.” Commonwealth v. Janda, 14
A.3d 147, 161 n.8 (Pa. Super. 2011).
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