J-S68011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID E. ALLISON :
:
Appellant : No. 435 WDA 2019
Appeal from the Judgment of Sentence Entered March 8, 2019
In the Court of Common Pleas of Bedford County Criminal Division at
No(s): CP-05-SA-0000001-2019
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020
David E. Allison (Allison) appeals the judgment of sentence entered on
March 8, 2019, by the Bedford County Court of Common Pleas (trial court).
Following a bench trial, Allison was found guilty of the summary offense of
disorderly conduct and sentenced to a jail term of 30 days. He now asserts
that (1) the evidence was legally insufficient to sustain his conviction, (2) the
verdict was against the weight of the evidence, and (3) the length of sentence
was excessive. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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I.
Allison was charged by citation with one count of disorderly conduct1
based on an incident that occurred on August 11, 2018. The case initially
went before a magisterial district judge, who sentenced Allison to 30 days in
county jail, and assessed fees and costs totaling $384.92. Allison appealed to
the trial court, which held a summary trial on March 7, 2019. There, the
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1 The offense is defined as follows:
(a) Offense defined.--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;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any
act which serves no legitimate purpose of the actor.
(b) Grading.--An offense under this section 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.
(c) Definition.--As used in this section the word “public” means
affecting or likely to affect persons in a place to which the public
or a substantial group has access; among the places included are
highways, transport facilities, schools, prisons, apartment houses,
places of business or amusement, any neighborhood, or any
premises which are open to the public.
18 Pa.C.S. § 5503.
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Commonwealth elicited the testimony of an investigating officer and a single
eyewitness – a cashier at a gas station called the Alum Bank Pit Stop.
The cashier testified that on the pertinent date, she saw an altercation
at one of the gas pumps between two men who had arrived together in a
minivan (Allison and another individual). At one point, Allison started yelling
at the other person and chasing him around a vehicle. When the other man
jumped back into the minivan, Allison busted out most of its front windshield.
The cashier could not hear what Allison was saying and she did not know what
had started the argument. Her register was about 30 feet away from the
incident.
The cashier called the police, who responded a few minutes later. An
officer soon made contact with Allison and the other man at the scene. The
officer noticed that Allison had some difficulty vocalizing words. An interpreter
in American Sign Language arrived and was able to convey from Allison to the
officer that the dispute had started over an engine problem with the minivan.
The trial court found that the witnesses had testified credibly to what
they had seen transpire. Based on that testimony, the trial court determined
that the shattering of the minivan’s windshield constituted the “public
annoyance” element of disorderly conduct. See Trial Transcript, 3/7/2019, at
41-42. As to intent, the trial court found that the evidence established a lack
of a legitimate reason for Allison’s behavior. Id. at 42-44.
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After the trial court found that the offense had been proven beyond a
reasonable doubt, Allison argued that jail time would be improper. The trial
court nevertheless sentenced Allison to a jail term of 30 days, to be stayed
pending the outcome of Allison’s appeal. No fine was imposed. Allison filed a
post-sentence motion in which he argued that the evidence of his guilt was
insufficient, the verdict was against the weight of the evidence, and that the
sentence was excessive. The post-sentence motion was denied. Allison timely
filed his notice of appeal and both he and the trial court complied with
Pa.R.A.P. 1925.
II.
A.
The trial court did not err in finding that the evidence of guilt was
sufficient. “A person is guilty of disorderly conduct if, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, he . . . creates a hazardous or physically offensive condition by any
act which serves no legitimate purpose of the actor.” 18 Pa.C.S. § 5503(a)(4).
Here, it was undisputed that Allison chased another man in public before
totally shattering the windshield of a vehicle. This created public annoyance
or alarm, as an eyewitness attested. At the scene, an officer learned from an
interpreter that Allison’s outburst resulted from a dispute over a malfunction
with the minivan they drove to the gas station. This supported the trial court’s
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finding that Allison had the requisite intent to commit the offense.2 Thus, the
evidence was sufficient to support all elements of disorderly conduct.
B.
Allison’s claim regarding the weight of the evidence also lacks merit.
The test here is whether the trial court “abused its discretion by reaching a
manifestly unreasonable judgment, misapplying the law, or basing its decision
on partiality, prejudice, bias, or ill-will.” See Commonwealth v. Clay, 64
A.3d 1049, 1056 (Pa. 2013). “To successfully challenge the weight of the
evidence, a defendant must prove the evidence is ‘so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.’”
Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017)
(quoting Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super.
2003)). This Court does not decide the underlying question of whether a
verdict is against the weight of the evidence. See Clay, 64 A.3d at 1056.
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2 The standard of review as to a trial court’s ruling on sufficiency is de novo,
with all reasonable inferences from the facts viewed in the light most favorable
to the verdict winner. See Commonwealth v. Rushing, 99 A.3d 416, 420
(Pa. 2014). “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.” Commonwealth v.
Tukhi, 149 A.3d 881, 886–87 (Pa. Super. 2016). Reversal is only warranted
when “the evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined circumstances.” Id. The
Commonwealth may carry its burden “by means of wholly circumstantial
evidence.” Id.
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Essentially, Allison argues that none of the evidence against him was
credible. See Appellant’s Brief, at 18. He points out that the two witnesses
who testified at the summary trial did not know what had precipitated the
incident. Id. at 18-19. Yet, the finder of fact – here, the trial court – was
“free to believe all, none or some of the evidence and to determine the
credibility of the witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545
(Pa. Super. 2015). This Court cannot substitute its own judgment on
credibility for that of the factfinder. See Windslowe, 158 A.3d at 712. As a
result, we find no factual or legal basis to determine that the trial court erred
in denying Allison’s weight of evidence claim.
C.
Allison also contends that his 30-day jail sentence was excessive. Since
challenges to the discretionary aspects of a sentence are not reviewable as a
matter of right, an appellant must establish a four-part test to invoke this
Court’s jurisdiction:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some
citations omitted).
A substantial question exists “only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
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inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa. Super. 2000). A bald
assertion of sentencing error does not raise a substantial question. See
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An
appellant must articulate the reasons the sentencing court’s actions violated
the sentencing code. Id. The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). If a substantial question has
been raised, an appellate court must review whether the trial court abused its
sentencing discretion. See Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007).
Allison has satisfied the jurisdictional test for review of the discretionary
aspects of the sentencing. His notice of appeal was timely, his claims were
preserved, his brief conforms to appellate filing requirements, and he raises a
substantial question.3 However, on the merits, Allison’s claim does not
warrant relief.
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3 Allison acknowledges that his 30-day jail sentence was legal, but contends
it was unreasonable because he does not pose a danger to the public and does
not have a high level of rehabilitative needs. See Appellant’s Brief, at 21-22.
This was enough to raise a substantial question. See generally
Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015) (finding that
appellant raised a substantial question by claiming that the trial court “failed
to consider his rehabilitative needs upon fashioning his sentence[.]”).
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At sentencing, the trial court specifically considered the fact that Allison
had recently been convicted of several other offenses. The trial court noted
the sanctions Allison received as to those crimes when deciding the
appropriate penalty in the present case. The trial court also noted that the
circumstances of the subject offense could have supported a more serious
charge, carrying with it a harsher maximum penalty than the term Allison
ultimately received.4 Thus, because the trial court appropriately took in mind
rehabilitative considerations and did not impose a sentence that is contrary to
the fundamental norms underlying the sentencing process, the order on
review must stand.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2020
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4 Allison’s sentence also fell well below the maximum term of 90 days for a
summary offense. See 18 Pa.C.S. § 5550.
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