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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRIAN PAUL SIMPSON, : No. 324 WDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered January 30, 2019,
in the Court of Common Pleas of Lawrence County
Criminal Division at No. CP-37-SA-0000092-2018
BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 10, 2020
Brian Paul Simpson appeals pro se from the January 30, 2019 judgment
of sentence of a $300 fine plus the costs of prosecution imposed after he was
found guilty in a trial de novo of disorderly conduct.1 After careful review,
we affirm the judgment of sentence.2
The trial court summarized the relevant facts of this case as follows:
On Thursday, April 5, 2018, Trooper Jerel T. Smith
and Trooper Robert Cox were working the midnight to
8[:00] A.M. shift out of the New Castle Barracks of the
Pennsylvania State Police. The Pennsylvania State
Police received a noise complaint about shooting at
around 3:00 A.M. made by [appellant’s] neighbor,
either John Argiro or his wife. The State Police
dispatch contacted [appellant] and requested him to
proceed to a nearby Dollar General so the responding
1 18 Pa.C.S.A. § 5503(a)(2).
2 The Commonwealth has not filed a brief in this matter.
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officers could speak to him safely. Trooper Smith was
first dispatched to the house of John Argiro before
meeting [appellant] at the Dollar General with
Trooper Cox.
Trooper Smith had been involved with a previous call
in March of that year where he and another officer
warned [appellant] to not shoot his firearm at that
time of night or he would probably be cited. The same
procedure of meeting at the Dollar General was used
in the prior incident. [Appellant] was not charged
based on this prior incident.
Returning to the night of the charged behavior, at
2:50 A.M., Troopers Smith and Cox arrived at Argiro’s
residence, who was the complainant in the previous
encounter between [appellant] and Trooper Smith.
Argiro testified [appellant] would fire his gun in the
general orientation towards his residence, not to shoot
at the residence, but such that he could see the light
from the muzzle flash. Argiro did not see a flash on
the particular incident in question.
Argiro also testified that [appellant] does not shoot
during the daytime, only in the early morning.
While it was clear Argiro and [appellant] were having
a personal dispute and some of the Argiro testimony
was disputed, this court credited these basic facts as
credible.
When contacted about the shooting on April 5, [2018]
Trooper Smith indicated the reason [appellant] gave
for shooting at that time was because he did not like
some lights [that] shone into his bedroom and
disturbed his sleep.
This court credited Trooper Smith as credible.
Trial court opinion, 4/12/19 at 1-3 (citations to notes of testimony and
footnotes omitted).
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Appellant was found guilty of disorderly conduct by the magisterial
district judge and appealed to the Court of Common Pleas of Lawrence County.
On January 29, 2019, appellant proceeded to a trial de novo and was found
guilty of one count of disorderly conduct in violation of Section 5503(a)(2).
The trial court found appellant not guilty of disorderly conduct under
Sections 5503(a)(1), (3), and (4). That same day, the trial court sentenced
appellant to pay a $300 fine plus the costs of prosecution. This timely pro se
appeal followed.3
Appellant raises the following issues for our review:
1. Was it prejudicial to [appellant’s] rights for the
trial court to change an essential element of the
charge that appellant was convicted of at the
summary court, during the trial, when
[a]ppellant was neither charged with or
convicted of that charge, and the charge was
not indicated as such on the citation?
2. Was the evidence sufficient to prove that
[a]ppellant intentionally caused or recklessly
risked a public inconvenience, annoyance or
alarm by target shooting on his five acre
property in a rural neighborhood where target
shooting and hunting is common?
3. Was it an abuse of the trial court[’]s discretion
to not allow [a]ppellant to elicit testimony from
the witness when [the]witness opened the door
to this testimony and that his testimony was not
hearsay, but in fact circumstantial evidence that
he was aware of the North Beaver Township
Police determination that [a]ppellant was legally
in compliance with Pennsylvania law while
3 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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target shooting on his private property, and was
that determination correct?
4. Did appellant[’]s use of his private target
shooting range after daylight hours violate
18 P[a.]C.S.A. [§] 5503(a)(2) when the [trial]
court said using it during day light [sic] hours
did not?
5. Does 34 P[a.]C.S.A. [§] 2507(b)(4) and 35 P.S.
[§] 4501 prevail over 18 P[a.]C.S.A.
[§] 5503(a)(2) in providing immunity from
prosecution for making noise from target
shooting while on one’s own private target
shooting range?
6. Was 18 P[a.]C.S.A. [§] 5503(a)(2)
unconstitutional as applied to appellant[’]s use
of his target shooting range in after dark hours?
Appellant’s brief at 4-5.4
We begin by addressing appellant’s claim that he is immune from
prosecution for disorderly conduct, based on the purported statutory defense
set forth in Section 2507(b)(4) of the Game and Wildlife Code, 34 Pa.C.S.A.
§ 101 et seq. (Id. at 38-52.) We disagree.
Here, appellant was found guilty of one count of disorderly conduct in
violation of Section 5503(a)(2), which provides that “[a] person is guilty of
disorderly conduct if, with intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, he . . . makes unreasonable
noise[.]” 18 Pa.C.S.A. § 5503(a)(2) (emphasis added). “Pennsylvania law
4 For the ease of discussion, we elect to address appellant’s claims in a
different order than presented in his appellate brief.
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defines unreasonable noise as not fitting or proper in respect to the
conventional standards of organized society or a legally constituted
community.” Commonwealth v. Forrey, 108 A.3d 895, 898 (Pa.Super.
2015) (citations and internal quotation marks omitted). Under this standard,
the Commonwealth must prove “that the noise here was unreasonable, i.e.,
inconsistent with neighborhood tolerance or standards.” Id. at 899 (citation
omitted).
Section 2507(a) of the Game and Wildlife Code governs restrictions on
shooting and provides as follows:
(a) General rule.--It is unlawful for any person
during the open season for the taking of any big
game other than turkey to:
(1) Shoot at any mark or target other
than legal game or wildlife with a
firearm of any kind or a bow and
arrow.
(2) Discharge at any time any firearm
or release an arrow at random in the
general direction of any game or
wildlife not plainly visible for the
purpose of routing or frightening
them.
(3) Discharge at any time any firearm
or release an arrow at random or in
any other manner contrary to this
section.
34 Pa.C.S.A. § 2507(a).
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Section 2507(b), in turn, sets forth several exceptions to this general
prohibition against “target shooting” during open hunting season5 by allowing
target practice at an approved location. Specifically, Section 2507(b)(4)
provides as follows:
(b) Exceptions.--This section shall not be
construed to apply in any manner to:
....
(4) Shooting at a properly constructed
target or mark or a dead tree
protected by a natural or artificial
barrier so that the ball, bullet or
arrow cannot travel more than
15 yards beyond the target aimed
at, after making due allowance for
deflection in any direction not to
exceed an angle of 45 degrees.
Target shooting shall only be lawful
when it is done:
(i) Upon property owned by the
shooter or by a guest of the
property owner.
(ii) Within 200 yards of the
camp or other headquarters
where the person shooting is
quartered or is an invited
guest or visitor.
34 Pa.C.S.A. § 2507(b)(4).
5 “Open season” is defined in 34 Pa.C.S.A. § 102 as “the indicated periods of
the calendar year and the daily hours during which game or wildlife may be
legally hunted, taken or killed and includes both the first and the last day of
the season or period of time designated by this title or by regulation of the
commission.” Id.
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Here, appellant’s reliance on Section 2507(b)(4) as a purported defense
to his disorderly conduct charge is misplaced because the exceptions set forth
in Section 2507(b) only apply to those offenses listed in Section 2507(a), and
not the disorderly conduct statute, which is essentially a noise control law.
See Forrey, 108 A.3d at 898-899; see also 34 Pa.C.S.A. § 2507(b)(4)
(noting exceptions to Section 2507(a)). Appellant was not charged with
violating Section 2507(a), and accordingly, his claim is meritless.
In a related claim, appellant contends that the trial court erred in failing
to interpret 35 P.S. § 4501 to provide him with “immunity from prosecution
for making noise from target shooting while on one’s own private target
shooting range.” (Appellant’s at 5, 53-57.) Again, we disagree.
When addressing a question of statutory construction,
our standard of review is de novo and the scope of
our review is plenary. Commonwealth v. Barbaro,
94 A.3d 389, 391 (Pa.Super. 2014) (citation omitted).
Interpretation of a statute is guided by the polestar
principles set forth in the Statutory Construction Act,
1 Pa.C.S.[A.] § 1501 et seq., which has as its
paramount tenet that the object of all interpretation
and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.
Commonwealth v. Hart, [28 A.3d 898, 908 (Pa.
2011)] (quoting 1 Pa.C.S.[A.] § 1921(a)).
Commonwealth v. Markun, 185 A.3d 1026, 1029 (Pa.Super. 2018) (internal
quotation marks and brackets omitted; citation formatting amended).
Section 4501 of Title 35, Health and Safety, governs the general
immunity provided to owners of shooting ranges from any civil or criminal
action based on noise or noise pollution, and provides as follows:
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All owners of rifle, pistol, silhouette, skeet, trap,
blackpowder or other ranges in this Commonwealth
shall be exempt and immune from any civil action or
criminal prosecution in any matter relating to noise or
noise pollution resulting from the normal and accepted
shooting activity on ranges, provided that the owners
of the ranges are in compliance with any applicable
noise control laws or ordinances extant at the time
construction of the range was initiated. If there were
no noise control laws or ordinances extant at the time
construction of the range was initiated, then the
immunity granted by this act shall apply to said
ranges.
35 P.S. § 4501.
The crux of appellant’s claim on appeal is premised on his belief that his
private property qualifies as a shooting range under Section 4501. Although
the term “shooting range” is not defined in the statute, our review of the
record supports the trial court’s determination that “[appellant’s] informal
activity of target shooting on his property does not make him an owner of a
range for the purposes of Section 4501.” (Trial court opinion, 4/12/19 at 13.)
As the trial court properly recognized in its opinion, such a finding
would lead to a near infinite variety of absurd results
if all shooting on one’s own property was to be
immunized from noise control. . . . [T]he extreme
informality of [appellant’s] specific shooting activity
makes it difficult for this court to characterize him as
an ‘owner of a range’ even wh[en] that phrase is taken
in a very broad sense.
Id.
In any event, even if this court were to construe appellant’s property as
a shooting range for purposes of Section 4501, the immunity provided for in
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this section applies only to “the normal and accepted shooting activity on
ranges[.]” 35 P.S. § 4501. Appellant’s act of repeatedly shooting his firearm
in the pitch black at approximately 3:00 a.m. on a weeknight in an area with
neighboring residential properties with children can hardly be considered a
“normal and accepted shooting activity” in any community, rural as it may be.
(See notes of testimony, 1/29/19 at 5-11, 28; see also 35 P.S. § 4501.) The
interpretation of Section 4501 urged by appellant is clearly unreasonable. If
that interpretation were followed, it would favor the private interest of the
owner of such a shooting range over the interests of all adjoining landowners.
Accordingly, appellant’s purported defense under Section 4501 must fail.
Appellant also argues that the citation charging him with disorderly
conduct violated his due process rights (see appellant’s brief at 11-21); that
there was insufficient evidence that he possessed the requisite mens rea to
recklessly create a risk of public inconvenience, annoyance, or alarm sufficient
to sustain his conviction under Section 5503(a)(2) (see appellant’s brief at
22-30); and that the Commonwealth failed to prove: (a) he created a public
harm or inconvenience because he was on his private property at the time the
shooting occurred (see id. at 31-34), and/or (b) the noise he created was
inconsistent with the standards of the neighborhood (see id. at 35-37).
Our review reveals that the trial court authored a comprehensive and
well-reasoned opinion that thoroughly addresses and disposes of appellant’s
remaining claims. Accordingly, we adopt the pertinent portions of the trial
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court’s April 12, 2019 opinion as our own for purposes of this appellate review
of these claims. (See trial court opinion, 4/12/19 at 3-6, 9-11.)
For all the foregoing reasons, we affirm the trial court’s January 30,
2019 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2020
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