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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
E.J. STEWART :
:
Appellant : No. 1312 MDA 2018
Appeal from the Judgement of Sentence entered July 12, 2018
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000118-2018
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 18, 2019
E.J. Stewart appeals from the aggregate judgment of sentence of one
to nine months of imprisonment imposed following his conviction of three
counts of the summary offense of disorderly conduct.1 We affirm his
conviction of two counts of disorderly conduct, reverse the remaining
conviction of disorderly conduct, vacate the judgment of sentence, and
remand for resentencing.
The trial court provided the following summary of the facts adduced at
trial.
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1The crime of disorderly conduct may be graded as either a misdemeanor or
summary offense. 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[,]” the crime is a misdemeanor. 18 Pa.C.S.
§ 5503(b).
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Robert Archer testified that he was residing at Williams
Street in Towanda on December 30, 2017[,] in 1 apartment of a
4[-]unit apartment building. He heard an altercation at the top of
the common stairwell and a woman was screaming and saying
“get out, leave me alone.” When he looked, he saw Appellant had
just arrived at [the] bottom of [the] stairs. [Mr.] Archer told him
to keep it down. Appellant yelled at [Mr.] Archer to mind his own
business and he was going to go get a gun out of his truck and
shoot him dead. Appellant was very loud and agitated. Appellant
then exited the building and was looking through his pickup truck
so [Mr.] Archer called the police. [Appellant] continued to yell
while outside. [Mr. Archer] heard him curse and use profanities a
few times, “I’m going to get the fucking gun and shoot you.” A
witness, Dr. [Robert] Hansen, was walking by the house at the
time and heard several curse words and heard a person in a loud
angry voice say “I am going to blow your fucking head off.” This
alarmed him. [Dr. Hansen] called 9-1-1 and gave the license plate
number. He only saw a glimpse of a male getting in a pick-up
truck being a dark green vehicle. He gave the license plate
number to a police officer. He also heard a little girl say “daddy
don’t[,]” and the man tell her to get in the car. Officer [Bryan]
Bellows interviewed [Mr.] Archer and [Dr.] Hansen. The license
plate number taken by [Dr.] Hansen matched Appellant’s license
plate.
Appellant’s 9[-]year[-]old daughter[,] J.S.[,] testified . . .
that she was with her mother making a lot of noise slamming
doors and her mother was yelling at her. Her mother called
Appellant, her father, to pick her up. Appellant picked her up and
as they walked by [Mr.] Archer’s apartment, he opened [his] door.
J.S. claimed that [Mr.] Archer said “I don’t want you two black “n”
words around – at my apartment again.” She then claimed that
Appellant said “If you keep on calling people the “n” word around
here they will end up shooting you.” She further claimed that
[Mr.] Archer said to Appellant “Come on big boy, bring it on.” She
did admit that she said “daddy don’t.” Bobbi J[.] Noto, J.[S.]’s
mother, also testified. She claimed Archer is a maniac, freaking
out at them and screaming the “n” word. Appellant also testified
consistent with [Ms.] Noto and his daughter. He[,] however[,]
added that [Mr.] Archer stood in the doorway to the apartment
building “hollering and hollering.” He claims he said “if he go
around calling people niggers somebody going to shoot his fucking
ass.”
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Trial Court Opinion, 11/15/18, at 1-2.
Appellant was arrested and charged with terroristic threats, harassment
and disorderly conduct. Prior to trial, the Commonwealth withdrew the
charges for terroristic threats and harassment, and added three additional
counts of disorderly conduct. At the conclusion of a non-jury trial on May 24,
2018, the trial court found Appellant guilty of three counts of disorderly
conduct under 18 Pa.C.S. § 5503(a)(1), (2), and (3). On July 12, 2018, the
trial court sentenced Appellant to ten to thirty days imprisonment on each
count, to be served consecutively. Appellant filed a timely notice of appeal
and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal.
Appellant raises the following issues for our review:
1. Was the evidence adduced at trial sufficient to establish guilt
beyond a reasonable doubt with regard to disorderly conduct
based on the elements of fighting or threatening, or violent or
tumultuous behavior?
2. Was the evidence adduced at trial sufficient to establish guilt
beyond a reasonable doubt with regard to disorderly conduct
based on the elements of intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, he
. . . makes unreasonable noise?
3. Was the evidence adduced at trial sufficient to establish guilt
beyond a reasonable doubt with regard to disorderly conduct
based on the elements of to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, he
. . . uses obscene language, or makes an obscene gesture?
Appellant’s brief at 5.
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In each of his issues, Appellant contends that the evidence was
insufficient to support his convictions.
[O]ur standard of review of sufficiency claims requires that
we evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013) (citations
and quotation marks omitted).
Appellant was charged and convicted of summary disorderly conduct
under each of the first three subsections of 18 Pa.C.S. § 5503(a), which
provides in relevant part as follows:
(a) Offense defined.--A person is guilty of disorderly conduct if,
with intent to cause public inconvenience, annoyance or
alarm, or creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or
tumultuous behavior;
(2) makes unreasonable noise; [or]
(3) uses obscene language, or makes an obscene gesture[.]
18 Pa.C.S. § 5503(a)(1), (2), (3).
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Regarding his conviction under subsection (a)(1), Appellant baldly
contends that “there was contradictory testimony by both the Commonwealth
witnesses as to what was said and the time frame” and that “[t]he credible
testimony at trial was that of Appellant and his witnesses.” Appellant’s brief
at 11. He additionally claims, without explanation, that Dr. Hansen was not
present when the initial exchange between Mr. Archer and Appellant took
place.
Post-trial challenges concerning inconsistent testimony go to the
credibility of the witness, and hence, implicate the weight, rather than
sufficiency of the evidence. See Commonwealth v. DeJesus, 860 A.2d 102,
107 (Pa. 2004). Moreover, Appellant failed to raise any challenge to the
weight of the evidence in his concise statement or in his statement of
questions presented. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (holding that if an appellant is directed to file a concise statement of
matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not
raised in that statement are waived); see also Pa.R.A.P 2116(a) (providing
that “[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”). Therefore, no relief is due
on his first issue.
Regarding his conviction under subsection (a)(2), Appellant argues that
“the Commonwealth did not produce testimony sufficient evidence [sic] to
convict [him] of unreasonable noise.” Appellant’s brief at 13. While he
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concedes that “there was testimony that [he] used foul language,” he claims
that “mere annoyance to the public is not enough to support an unreasonable
noise citation.” Id. Appellant maintains that there was no testimony that the
level of noise was inconsistent with neighborhood tolerance or standards.
The mens rea requirement of § 5503 demands proof that
Appellant by his actions intentionally or recklessly created a risk
of causing 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. In disorderly [conduct]
cases based on one’s making “unreasonable noise,” this Court has
looked to language content only to infer whether the speaker
intended to cause public annoyance, alarm, etc. Ultimately,
however, what constitutes the actus reus of “unreasonable noise”
under the disorderly conduct statute is determined solely by the
volume of the speech, not by its content.
Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa.Super. 2005) (cleaned
up, emphasis in original).
Accepting all findings of fact made by the trial court, and viewing such
facts and inferences therefrom in a light most favorable to the Commonwealth
as verdict winner, we find sufficient evidence to establish that Appellant
intended to cause and did, in fact, cause unreasonable noise as proscribed
under the disorderly conduct statute. The undisputed fact that Mr. Archer and
Dr. Hansen were justifiably upset and alarmed by Appellant’s loud and
threatening outburst cannot, alone, create the inference that Appellant
intended to cause or risk a public inconvenience under the law. However, Mr.
Archer testified that, while Appellant was in close proximity in a common area
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of the four-unit residence, Appellant yelled at him, and, using profanity, made
a serious threat that Appellant would retrieve his “fucking” gun from his truck
and kill him. N.T. Trial, 5/24/18, at 4-8. Mr. Archer further testified that, as
Appellant went to his truck, he continued to yell profanities and threats while
he appeared to be searching for something in it. Id. at 6-8. Dr. Hansen
testified that, as he was walking through the neighborhood, he heard a raised
voice say, “I am going to blow your fucking head off.” Id. at 23. Appellant’s
outburst was so alarming that it prompted Dr. Hansen, a complete stranger
to the parties, to write down Appellant’s license plate number and to seek
police intervention. One could reasonably infer from this set of circumstances
that Appellant had the requisite intent to upset the public peace.
The public peace was also jeopardized by the actual noise generated by
Appellant. Mr. Archer testified that, in threatening him, Appellant “had a
raised voice, yelling at me.” Id. at 5. Mr. Archer further testified that while
Appellant was searching his truck, “he was still yelling while he was outside
that he was going to shoot me.” Id. at 6. Mr. Archer could hear the
Appellant’s continued outburst even though Mr. Archer was in his bedroom
with the window shut, and the Appellant was at his truck, which was parked
on a public street. Id. at 7. Dr. Hansen testified that as he was taking a walk
through the neighborhood, he heard a loud, angry, raised voice threatening
to kill someone from a nearby intersection. Id. at 23, 24. Thus, the evidence
sufficiently established that Appellant’s vocal noise did, in fact, rise to an
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audible level that upset the public peace. Accordingly, no relief is due on
Appellant’s second issue.
Turning to Appellant’s conviction under subsection (a)(3), he argues
that there was conflicting testimony as to what precisely was said, and no
testimony indicating that his statements or gestures appealed to prurient
interests. He claims that “[t]here were no obscene expressions by word or
gesture.” Appellant’s brief at 15. We agree.
In Commonwealth v. Bryner, 652 A.2d 909, 912 (Pa.Super. 1995),
this Court determined that, with regard to subsection (a)(3), we characterize
language as “obscene” if it meets the three-part test set forth in Miller v.
California, 413 U.S. 15 (1973):
(a) whether “the average person, applying contemporary
community standards” would find that the work, taken as a whole,
appeals to the prurient interest, (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law, and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or
scientific value.
Id. at 24; see also Commonwealth v. Kelly, 758 A.2d 1284, 1286
(Pa.Super. 2000) (adopting the Miller test in construing § 5503(a)(3)). The
Bryner Court further noted that the Miller test has been adopted by our
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legislature in defining what constitutes obscene materials. Bryner, supra at
912.2
With the Miller definition in mind, even when viewing the evidence in
the light most favorable to the Commonwealth, Appellant’s usage of the word
“fucking,” while offensive and abrasive, was not sexually explicit in nature.
See Commonwealth v. Pennix, 176 A.3d 340, 346 (Pa.Super. 2017)
(holding appellant’s remarks of “Fuck you police . . . I don’t got time for you
fucking police” were not sexually obscene under section 5503(a)(3)); see
also Kelly, supra at 1288 (reversing appellant’s conviction under section
5503(a)(3) because “[her] use of the ‘F-word’ and use of the middle finger
were angry words and an angry gesture having nothing to do with sex.”). We
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2 The Commonwealth relies on Commonwealth v. Pringle, 450 A.2d 103
(Pa.Super. 1982), wherein this Court affirmed the appellant’s conviction under
subsection (a)(3) after she repeatedly referred to police officers as “goddamn
fucking pigs” when they were attempting to arrest another individual. On
appeal, the appellant argued that her words were not obscene, and thus, were
protected under the First Amendment. In rejecting her claim, this Court,
although recognizing several United States Supreme Court cases dealing with
the use of obscene words, distinguished those cases and held that “one may
be convicted of disorderly conduct for engaging in the activity of shouting
profane names and insults at police officers on a public street while the
officers attempt to carry out their lawful duties.” Pringle, supra at 106
(emphasis added). In Bryner, this Court distinguished Pringle, noting that
“[a]lthough the Pringle court found that calling police officers ‘goddamn
fucking pigs’ was obscene under this state’s disorderly conduct statute, the
word ‘obscene’ was not defined. It is important to define the word ‘obscene’
because obscenity is not within the area of constitutionally protected speech
under the First Amendment.” Bryner, supra at 911.
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accordingly reverse Appellant’s conviction of disorderly conduct under
subsection (a)(3).
Accordingly, we affirm Appellant’s convictions under 18 Pa.C.S.
§ 5503(a)(1) and (a)(2), reverse his conviction under subsection (a)(3), and
vacate the sentence imposed for that conviction. However, because vacating
Appellant’s sentence for subsection (a)(3) may disrupt the trial court’s overall
sentencing scheme, we vacate his judgment of sentence on all counts and
remand for resentencing on the convictions under subsections (a)(1) and
(a)(2). See Commonwealth v. Barton-Martin, 5 A.3d 363, 370 (Pa.Super.
2010) (providing that where vacating a sentence disrupts a trial court’s overall
sentencing scheme, this Court will remand to the trial court for resentencing).
Conviction for disorderly conduct under 18 Pa.C.S. § 5503(a)(1) and
(a)(2) affirmed; conviction for disorderly conduct under subsection (a)(3)
reversed; judgement of sentence vacated; case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/18/2019
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