J-A13039-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEPHEN LEE DUTTER, :
:
Appellant : No. 1216 EDA 2019
Appeal from the Judgment of Sentence Entered March 25, 2019
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002114-2018
BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 04, 2020
Stephen Lee Dutter (Appellant) appeals from his judgment of sentence
imposed following his conviction for the summary offense of disorderly
conduct (creating a hazardous or physically offensive condition). We vacate
Appellant’s judgment of sentence and reverse his conviction.
We provide the following background. On March 5, 2018, Appellant
attempted to enter One Montgomery Plaza (OMP), which houses
Montgomery County offices and courtrooms and is across the street from the
Montgomery County Courthouse. N.T., 3/25/2019, at 5, 12. In order to
enter, visitors must pass through a security checkpoint. Id. at 7. A sign at
the building entrance stated: “Stop. Notice: For your protection beyond this
* Retired Senior Judge assigned to the Superior Court.
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point everyone is subject to a search of their person and effects.” Id. at 10.
At the security checkpoint, visitors must empty their pockets, place their
personal effects in a bin, and walk through a metal detector. Id. at 8. A
security officer inspects items placed in the bin. If a visitor has bags, a
security officer uses an x-ray machine to inspect the contents. Id. at 8-9.
The purpose of the security procedures was to prevent visitors from entering
the building with weapons. Id. at 8.
When Appellant entered the security line, he placed his wallet and a
pack of cigarettes in the bin and proceeded through the metal detector. Id.
at 12. He did not set off the metal detector. Id. Before Deputy John Foster,
who was in charge of the security checkpoint at that time, could inspect
Appellant’s items, Appellant grabbed them. Id. Deputy Foster told Appellant
that he needed to look at the items, and Appellant replied “Yeah, no, that’s
not happening.” Id. Deputy Foster repeated that inspection was necessary,
and Appellant again refused. Id. Deputy Foster told Appellant he would not
be allowed to enter the building if he did not comply. Id. at 13.
Another deputy working at the security checkpoint, Deputy James Lee,
told Appellant that he either needed to allow the deputies to look at his
items, or he would not be allowed inside. Id. at 13. Appellant again refused
to comply, replying, “I have court today. I’m coming in.” Id. After another
round of admonition and refusal, Deputy Lee ordered Appellant to leave the
building. Id. at 37. Appellant did not move. Id. He was in an agitated state,
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screaming and hollering, and calling the deputies “puppets.” Id. at 14, 37.
Deputy Lee placed two fingers on Appellant’s chest to back Appellant out of
the doorway, and Appellant left. Id. at 38-39. About 50 seconds elapsed
from the time Appellant approached the security checkpoint to when he left.
Id. at 41.
Immediately after Appellant left OMP, he went across the street to the
sheriff’s office. Id. at 43. Appellant approached the clerical worker at the
front desk, Mary Hickey, and told her he wanted to file a complaint because
he did not like how the deputies at OMP had treated him. Id. He claimed the
deputies invaded his privacy and violated his rights. Id. Appellant was upset
and got progressively louder as he spoke with Hickey. Id. Appellant also
requested to speak to a supervisor. Id. Appellant got angry when Hickey
explained that there was no supervisor immediately available. Id. at 44.
Eventually, another office worker was able to get Captain Gregory
Womelsdorf to speak to Appellant. Id.
Captain Womelsdorf brought Appellant back to the office of Sergeant
Rick Miles, who supervises the deputies. Id. at 50. There, Appellant met
with Lieutenant Theodore Thompson and Sergeant Miles. Id. at 50-51.
According to Lieutenant Thompson, Appellant was not “cursing, but he was
sort of like attacking [Captain Womelsdorf, Lieutenant Thompson, and
Sergeant Miles] like [they] were part of the problem ... [Appellant’s speech]
was inappropriate for in the courthouse.” Id. at 63. After five minutes,
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Lieutenant Thompson asked Appellant to leave, and Appellant did. Id.
Sergeant Miles and Lieutenant Thompson followed Appellant from a distance
as he walked back to OMP. Id. at 16-17, 64. As they followed Appellant into
OMP, Sergeant Miles radioed Deputy Foster that if Appellant complied with
the rules, he should be let inside. Id. at 16.
Appellant’s second time at OMP security began like his initial
entrance; he set his belongings in the bin, walked through the metal
detector without setting it off, and refused to allow Deputy Foster to inspect
his belongings. Id. at 17. Appellant told Deputy Foster, “Don’t fucking touch
my stuff.” Id. As a result, Deputy Foster told Appellant he had to leave. Id.
When Appellant did not move, Deputy Foster grabbed Appellant by the arms
and moved him out of the building. Id. This interaction lasted approximately
“10, 15 seconds.” Id. at 29.
Once outside OMP, Appellant began screaming and cursing. Id. at 18.
At that point, Lieutenant Thompson told the other officers to take Appellant
into custody. Id. at 19. Lieutenant Thompson testified that he was not going
to place Appellant under arrest for his conduct inside OMP, but when
Appellant was outside “it was more like F--- you. It was bad. It wasn’t like
he was just complaining now. He was [cursing] ... He was loud, obnoxious,
unreasonable, disorderly.” Id. at 72. When the officers stepped outside in
order to approach Appellant, Appellant ran across the street to the front of
the courthouse where members of the media were stationed. Id. at 19.
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Appellant was jumping up and down, cursing, and screaming, “Look at this.
Look at this. They’re violating my rights. Everybody getting this?” Id. at 52.
Approximately two minutes after Appellant was escorted from OMP, Captain
Womelsdorf took Appellant into custody. Id. at 32. Appellant did not fight or
actively resist arrest, but he refused to follow orders to place his hands
behind his back. Id. at 53.
Based on the foregoing, Appellant was charged with misdemeanor
disorderly conduct and resisting arrest. On March 25, 2019, the trial court
granted the Commonwealth’s motion to amend the information to one count
of disorderly conduct as a summary offense. Appellant proceeded to a bench
trial that same day, at the conclusion of which he was found guilty and
sentenced to a 90-day term of probation. Appellant filed a timely notice of
appeal.1
On appeal, Appellant challenges the sufficiency of the evidence to
convict him of disorderly conduct, arguing there was insufficient evidence to
prove (1) he had the intent to cause public inconvenience, annoyance or
1 The trial court ordered Appellant to file a concise statement pursuant to
Pa.R.A.P. 1925(b) on April 22, 2019. On May 13, 2019, Appellant’s counsel
requested an extension, which the trial court denied on May 14, 2019.
Appellant’s concise statement was filed 3 days late on May 16, 2019. The
trial court filed its Pa.R.A.P. 1925(a) opinion on July 1, 2019, addressing the
issues raised in the untimely-filed concise statement despite its earlier
ruling. “[W]here the trial court addresses the issues raised in an untimely
Rule 1925(b) statement, we need not remand but may address the issues on
their merits.” Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super.
2016). Accordingly, we can consider the merits of this appeal.
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alarm, or recklessly created a risk thereof; (2) he created a hazardous or
physically offensive condition; and (3) his actions served no legitimate
purpose.2 Appellant’s Brief at 10.
When reviewing a challenge to the sufficiency of the evidence,
we must determine whether the evidence admitted at trial, as
well as all reasonable inferences drawn therefrom, when viewed
in the light most favorable to the verdict winner, are sufficient to
support all elements of the offense. Commonwealth v.
Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may
not reweigh the evidence and substitute our judgment for that of
the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.
Super. 2009). The evidence may be entirely circumstantial as
long as it links the accused to the crime beyond a reasonable
doubt. Moreno, [14 A.3d] at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011). A
sufficiency-of-the-evidence claim is a question of law; thus, our standard of
review is de novo and our scope of review is plenary. Commonwealth v.
Johnson, 160 A.3d 127, 136 (Pa. 2017).
The disorderly conduct statute provides 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:
***
2 Appellant initially argued on appeal that the statute as applied violated his
First Amendment rights to free speech and free expression, but he
acknowledged in his reply brief that this argument was waived because it
was not raised prior to his appeal. Appellant’s Reply Brief at 1; see
Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015)
(“[I]ssues must be raised prior to trial, during trial, or in a timely post-
sentence motion to be preserved for appeal.”).
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(4) creates a hazardous or physically offensive condition
by any act which serves no legitimate purpose of the
actor.
18 Pa.C.S. § 5503(a).
We observe that
[t]he offense of disorderly conduct is not intended as a catchall
for every act which annoys or disturbs people; it is not to be
used as a dragnet for all the irritations which breed in the
ferment of a community. It has a specific purpose; it has a
definitive objective, it is intended to preserve the public peace; it
has thus a limited periphery beyond which the prosecuting
authorities have no right to transgress any more than the
alleged criminal has the right to operate within its clear outlined
circumference.
Commonwealth v. N.M.C, 172 A.3d 1146, 1153 (Pa. Super. 2017)
(citation omitted).
Failure to prove either element of disorderly conduct pursuant to
subsection 5503(a)(4) requires reversal. See Commonwealth v. Williams,
574 A.2d 1161, 1164 (Pa. Super. 1990). Accordingly, we begin with
Appellant’s argument that the Commonwealth failed to prove beyond a
reasonable doubt that Appellant created a hazardous or physically offensive
condition. Appellant’s Brief at 15-17. Based on the use of the disjunctive
“or,” the Commonwealth may offer evidence demonstrating that a condition
was either hazardous or physically offensive. Because we agree with
Appellant that the facts of this case clearly do not support a finding of a
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physically offensive condition,3 we focus on whether Appellant created a
hazardous condition.
In support of his argument that his actions did not create a hazardous
condition, Appellant compares the facts of his case to Williams, where this
Court found insufficient evidence that Williams’ actions created a hazardous
condition. Appellant’s Brief at 17. Appellant argues that because his
interactions with officers were very brief and he did not physically strike the
officers or resist being removed from OMP, his case is similar to Williams
inasmuch as he did not create “a significant risk or danger of injury to
anyone.” Id. (quoting Williams, 574 A.2d at 1164). Additionally, Appellant
argues that his case is distinguishable from Commonwealth v. Love, 896
A.2d 1276, 1286 (Pa. Super. 2006), where this Court found that physically
interfering with law enforcement’s efforts to keep the peace at a courthouse
created a hazardous condition. Appellant’s Reply Brief at 8-10.
As applied to subsection 5503(a)(4), a hazardous condition is a
condition that involves danger or risk. Commonwealth v. Roth, 531 A.2d
1133, 1137 (Pa. Super. 1987). “The dangers and risks against which the
disorderly conduct statute are directed are the possibility of injuries resulting
3 This Court has defined physically offensive conditions as “direct assaults on
the physical senses of members of the public.” Williams, 574 A.2d at 1164.
Commenting on the legislative history of subsection 5503(a)(4), we have
said that physically offensive conditions may be created where a defendant
“sets off a ‘stink bomb,’ strews rotting garbage in public places, or shines
blinding light in the eyes of others.” Id. (punctuation adjusted).
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from public disorder.” Williams, 574 A.2d at 1164. In Williams, police were
called to a residents-only parking lot at an apartment complex after Williams
pulled into the lot, exited his car, removed his pants, paced nervously
around the lot, and, ultimately, broke in to a resident’s car. Id. at 1161-62.
We found that Williams’ actions did not create a hazardous condition
because his conduct was not threatening or confrontational, and it did not
create a danger by obstructing a roadway or distracting passing motorists.
Id. at 1164.
We contrasted Williams’ behavior with that in Roth to illustrate the
distinction between conduct that gives rise to a hazardous condition by
creating a risk of injury and conduct that damages property or is morally
offensive but does not meet subsection 5503(a)(4). Id. (citing Roth, 531
A.2d at 1137). In Roth, a group of over 20 protestors attempted to enter a
church, which was being guarded by ushers, on Easter Sunday. Roth, 531
A.2d at 1137. Prior to the incident, the protestors distributed literature and
threatened “war against the [church].” Id. at 1136. As a result, church
members feared for their safety, and ushers were stationed outside of the
church in order “not [to] let the battle be fought inside.” Id. at 1137. Police
present at the church in anticipation of the protest commanded the
protestors not to enter the church. Id. Despite the order, a protest leader
called on demonstrators to attempt to enter. Id. When the protestors
stepped toward the entrance they were arrested. Id. This Court found a
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hazardous condition was created because, “in an emotionally charged
atmosphere,” the protestors’ “conduct of moving towards the [] property
certainly created a dangerous situation in which altercations between the
demonstrators and [c]hurch members could have occurred.” Id.
Like Williams, Appellant did not threaten anyone, obstruct a roadway,
or engage in or attempt to engage in physical violence. The officers’
descriptions of Appellant’s conduct prior to his arrest further indicate that his
behavior was annoying and obnoxious, but not dangerous. Lieutenant
Thompson gave the order to arrest Appellant because, after Appellant was
escorted out of OMP, Appellant looked back at the officers inside and was
“going off, screaming” and cursing. N.T., 3/25/2019, at 65-66. Captain
Womelsdorf arrested Appellant after observing Appellant leave OMP and run
across the street to media stationed outside the courthouse while
“screaming, ‘Look at this. Look at this. They’re violating my rights.
Everybody getting this?’” Id. at 52-53. Deputy Foster, Deputy Lee,
Lieutenant Thompson, and Captain Womelsdorf all testified that Appellant
did not threaten them or engage in physical violence. Id. at 24, 40, 57, 72.
However, Appellant’s actions are distinguishable from the facts in
Williams because Appellant was loud and confrontational in his interactions
with law enforcement. To the extent that Appellant’s behavior toward the
security deputies, such as calling them “puppets,” N.T., 3/25/2019, at 14,
37, was provocative like the protestors’ conduct in Roth, our holding that
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such conduct risked inciting an altercation does not extend to verbal
confrontations with law enforcement officers. See Commonwealth v.
Hock, 728 A.2d 943, 947 (1999). We have recognized that
the prospect of a citizen verbally abusing a police officer appears
particularly objectionable. It does not follow, however, that
[s]ection 5503(a) may be used as a vehicle to protect police
from all verbal indignities, especially under the dubious
hypothesis that officers are likely to break the law when
affronted. The police must expect that, as part of their jobs, they
will be exposed to daily contact with distraught individuals in
emotionally charged situations.
Id. The defendant in Hock was convicted under subsection 5503(a)(1) for
using words in a manner that could have triggered a violent response from
an officer; however, the principle in Hock is instructive in the instant case.
See id. Because the targets of Appellant’s verbal indignities were trained law
enforcement officers, Appellant cannot be found to have created a hazardous
condition on the grounds that he risked provoking an altercation.
We next consider Appellant’s argument that his conduct was
distinguishable from Love, wherein we provided the following rationale to
sustain Love’s disorderly conduct conviction.
[Love] physically confronted [a courtroom deputy] in an effort to
prevent [the deputy] from carrying out his official duties.
Inherent in the act of physically attempting to impede a law
enforcement officer from carrying out his or her official duties ...
is the risk of creating a condition hazardous ... in nature.”
Love, 896 A.2d at 1286.
Love’s physical confrontation with the deputy took place in a crowded
courtroom immediately after a protection from abuse (PFA) order was
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entered against Love’s son. Id. Love and his wife jumped from their seats
and loudly protested the outcome. Id. Love “not only publicly and angrily
vocalized his disagreement with the court’s order, he used his comments to”
escalate his wife’s anger, Id., thereby instigating an “uproarious agitation in
the courtroom.” Id. at 1285. “[T]he situation was one that posed the risk of
being highly-charged,” and Love’s actions “further heightened the tension”
between the parties to the PFA matter. Id. at 1286. Four courtroom deputies
instructed Love and his wife to return to their seats and be quiet multiple
times, but they did not obey the officers. Id. at 1279. When a deputy
approached Love’s wife to escort her from the courtroom, Love “intervened
and stepped alongside of [the deputy] and placed his arm out in front of [the
deputy] across [the deputy’s] chest.” Id. at 1284-85. Love then
“aggressively attempted to push [the deputy] backwards,” which required
the deputy to restrain Love and rendered the deputy unable to remove
Love’s wife from the courtroom. Id. at 1285.
Although the instant case resembles Love in that it involves outbursts
directed at law enforcement in a public building, we agree with Appellant
that his case is distinguishable because he did not aggressively push or
otherwise physically touch law enforcement. Appellant’s Reply Brief at 9.
Love “violently interfered with a law enforcement officer during the latter’s
attempts to quell the public disturbance caused by [Love’s wife].” Love, 896
A.2d at 1286. The risk that the officer in Love would be prevented from
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carrying out an official duty was not incidental to Love’s conduct; stopping
the officer from keeping the peace was the purpose and direct effect of
physically blocking the officer from reaching his wife. Id. at 1284-85. Here,
Appellant angrily argued with security deputies and had to be escorted from
OMP, but Appellant did not block the security checkpoint or directly interfere
with the search of another visitor to OMP. Furthermore, Appellant did not
violently confront a law enforcement officer. Accordingly, Appellant’s actions
did not create a hazardous condition by physically preventing law
enforcement from carrying out a duty.
The Commonwealth urges us to apply Love’s holding to the instant
case because Appellant’s behavior required deputies to leave their posts,
which “inherently creates a hazardous condition as it necessarily depletes
the manpower available in the moment to provide the requisite courthouse
security.” Commonwealth’s Brief at 13. Proving that a hazardous condition
was created does not require showing that public injury actually happened;
however, the Commonwealth must show that Appellant’s actions created a
risk of public injury. Williams, 574 A.2d 1161, 1164. The Commonwealth
argues that an action which renders law enforcement unable to provide the
level of security necessary to prevent a security breach creates the risk of
public injury resulting from such a breach. Commonwealth’s Brief at 13. The
Commonwealth contends that OMP security being rendered inadequate can
be inferred from the fact that officers had to attend to Appellant. Id. The
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record establishes that staffing for the OMP security checkpoint includes
backup deputies in addition to the officer running the checkpoint, and at
least one additional deputy who did not interact with Appellant was working
the checkpoint when Appellant entered OMP. N.T., 3/25/2019, at 36. Of the
four officers who testified, including Lieutenant Thompson who was
responsible for overseeing courthouse security and assigning deputies to
their posts, none stated that law enforcement capacity was strained or
limited, or that any checkpoints were closed as a result of incidents with
Appellant. See Id. at 61. Additionally, it was within the scope of the
deputies’ normal duties to remove Appellant from OMP and participate in his
arrest. Id. at 31. Moreover, to the extent officers were distracted or pulled
away from other assignments, any disruption was very brief. In total, both
of the incidents inside OMP and Appellant’s conduct outside OMP lasted for
under three minutes. Id. at 28, 32, 41. Therefore, the record does not
support the inference that Appellant’s actions rendered law enforcement
unable to provide the requisite security. As such, Appellant’s actions did not
create the risk of injury inherent in an inadequately secured public building.
Accordingly, we are unpersuaded by the Commonwealth’s argument.4
4 Insofar as the Commonwealth argues that, notwithstanding the actual
impact Appellant had on OMP’s ability to provide security, Appellant created
a hazardous condition because his actions created the risk that OMP would
be unable to provide the requisite security, which in turn would create the
risk of public injury resulting from a security breach, we are likewise
unpersuaded. See Commonwealth’s Brief at 12-13. The Commonwealth
(Footnote Continued Next Page)
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Based on the foregoing, even after viewing all of the evidence in the
light most favorable to the Commonwealth, we nonetheless conclude there
was insufficient evidence to enable the trial court to find that Appellant
created a hazardous or physically offensive condition. Because creating a
hazardous or physically offensive condition is a necessary element of
disorderly conduct pursuant to subsection 5503(a)(4), we do not address
Appellant’s remaining issues. Accordingly, we vacate Appellant’s judgment of
sentence and reverse his conviction.
Judgment of sentence vacated. Conviction reversed.
President Judge Emeritus Bender joined in this memorandum.
Judge Lazarus concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/20
(Footnote Continued) _______________________
cannot sustain its burden of proving Appellant created a hazardous condition
on the basis that addressing Appellant’s conduct could have had the indirect
effect of causing the officers involved to be delayed in responding to
unrelated security issues. See Id.; Williams, 574 A.2d at 1164 (“The
Commonwealth reasons that ... police officers investigating the incident may
not have responded as promptly to other calls. This argument proves too
much.... We cannot uphold appellant's conviction based upon speculation
concerning the indirect effects of actions taken by the police in the normal
course of their duties.”).
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