Commonwealth v. Fedorek

Dissenting Opinion by

ORIE MELVIN, J.:

¶ 1 I respectfully dissent. By inserting the word “public” into 18 Pa.C.S.A. § 5503(b) where it does not appear, the majority ignores the unambiguous plain language of the statute and violates the fundamental maxim of statutory interpretation that courts lack the authority to insert a word into a statutory provision where the Legislature has not done so. The majority also conflates the offense of disorderly conduct with its grading and, thus, finds support for its interpretation of Section 5503(b) in the broader context of the Crimes Code when such does not actually exist. For the reasons that follow, I would require the Commonwealth to prove beyond a reasonable doubt that a defendant charged with disorderly conduct graded as a misdemeanor of the third degree only intended to cause “substantial harm” or “serious inconvenience,” and, thus, I would affirm the conviction.

¶ 2 In setting forth the governing rules of statutory interpretation, the majority acknowledges but then fails to actually *901apply the foremost maxim of statutory interpretation — i.e., that “[t]he clearest indication of legislative intent is generally the plain language of a statute.” Majority Opinion, at 898 (quoting Walker v. Eleby, 577 Pa. 104, 128, 842 A.2d 389, 400 (2004)). Our Supreme Court has repeatedly instructed that this maxim is the starting point for all issues of statutory interpretation. See Commonwealth v. Dellisanti, 583 Pa. 106, 112, 876 A.2d 366, 369 (2005) (stating, “[t]o determine the meaning of a statute, a court must first determine whether the issue may be resolved by reference to the express language of the statute.”); Kusza v. Maximonis, 363 Pa. 479, 482, 70 A.2d 329, 331 (1950) (stating, “the court must ascertain and give effect to the legislative intention as expressed in the language of the statute.”). The majority also fails to identify and apply the maxim of statutory interpretation which speaks most directly to the question before us— i.e., “[tjhis Court is without authority to insert a word into a statutory provision where the legislature has failed to supply it.” Nimick v. Shuty, 440 Pa.Super. 87, 655 A.2d 132, 136 (1995) (citing Key Sav. and Loan Ass’n v. Louis John, Inc., 379 Pa.Super. 226, 549 A.2d 988, 991 (1988), appeal denied, 523 Pa. 632, 564 A.2d 1260 (1989)); see also Kusza, 363 Pa. at 482, 70 A.2d at 331 (stating that a court “cannot, under its powers of construction, supply omissions in a statute.”). My analysis, in contrast, proceeds directly from these two maxims.

¶ 3 I begin by examining the specific statutory language of Section 5503(b) as well as the language of Section 5503 as a whole. Subsection (b) on grading the offense of disorderly conduct provides in pertinent part: “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 inconven-ience_”18 Pa.C.S.A. § 5503(b) (emphasis added). Critically, the word “public” does not modify either “substantial harm” or “serious inconvenience;” indeed, the word “public” does not appear in the subsection on grading at all.

¶ 4 The word “public” is, however, contained in subsection (a), which lists the elements necessary to be convicted of the offense of disorderly conduct. See 18 Pa. C.S.A. § 5503(a) (providing, “[a] person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ....”) (emphasis added). The portion on grading is contained in a separate subsection from the offense itself and, thus, suggests that the offense and its grading necessitate separate inquiries. I believe it is a fundamental error to conflate the two.6 Subsection (c), in turn, defines “public” and immediately follows subsection (b) but does not, merely by dint of placement, suggest that the defined term must be extrapolated into a preceding subsection which does not contain the defined term. I believe that the definition of “public” in subsection (c) is properly read only in conjunction with subsection (a), which actually contains the defined term. I also note that while both subsection (a) and subsection (b) contain the word “inconvenience,” the word is modified by different adjectives in each subsection. Compare 18 Pa.C.S.A. § 5503(a) (requiring “public inconvenience”)7 with § 5503(b) *902(requiring “serious inconvenience”). Overall, my examination of the plain text of Section 5503 convinces me that the statute is explicit on the question at hand and does not require the Commonwealth to prove beyond a reasonable doubt that a defendant intended to cause substantial harm to the public or serious inconvenience to the public in order to be convicted of the misdemeanor version of the offense.

¶ 5 My conclusion is bolstered by a review of the language and structure of the provisions for disorderly conduct found in the Model Penal Code (MPC). Section 5503 was enacted as part of the Crimes Code in 1972 and modeled on MPC Section 250.2 See 18 Pa.C.S.A. § 5503, Official Comment — 1972 (noting “[t]his section is derived from Section 250.2 of the Model Penal Code.”); see also Commonwealth v. Gilbert, 449 Pa.Super. 450, 674 A.2d 284 (1996) (looking to MPC Section 250.2 and commentary in determining that the unreasonable noise prohibited by 18 Pa.C.S.A. § 5503(a)(2) is directed at the volume of speech, not its content); Commonwealth v. Maerz, 879 A.2d 1267 (Pa.Super.2005) (same). Of particular importance, MPC Section 250.2, entitled “Disorderly Conduct,” has a slightly different structure than Section 5503. It provides:

(1) Offense Defined. A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(a) engages in fighting or threatening, or in violent or tumultuous behavior; or
(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or
(c)creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
“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, or any neighborhood.
(2) Grading. An offense under this section is a petty misdemeanor if the actor’s purpose 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 violation.

MPC § 250.2.

¶ 6 The structure of MPC Section 250.2, which places the definition of “public” within the subsection defining the offense, but before the separate subsection on grading, provides a clear indication that the word “public” was not intended by the drafters of the model provision to modify “substantial harm” or “serious inconvenience,” as those phrases appear in the subsection on grading. The Explanatory Note accompanying MPC Article 250 (Riot, Disorderly Conduct and Related Offenses) notably does not use “public” to modify either “substantial harm” or “serious inconvenience” nor does it provide any other indication that such was the intent of the model provision’s drafters. See Explanatory Note for Sections 250.1-250.12, Official Draft and Explanatory Notes (providing, in pertinent part, that “[a]n-other significant innovation in the law of disorderly conduct is the reduction of the offense to a violation, which does not authorize imprisonment, unless the actor’s *903purpose is to cause substantial harm or serious inconvenience or unless he persists in disorderly conduct after reasonable warning or request to desist, in which case the offense is a petty misdemean- or.”). Similarly, Commentary to MPC Section 250.2 does not in its discussion of grading the disorderly conduct offense mention any requirement that the required harm or inconvenience be to the public:

Grading: Section 250.2 of the Model Code classifies the ordinary case of disorderly conduct as a violation. The offense, however, is a petty misdemeanor ‘if the actor’s purpose is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist.’ This scheme is designed to retain the sanction of incarceration for behavior indicative of serious fault by the accused but to withdraw the threat of imprisonment in all other cases. The noisy family quarrel, for example, hardly warrants a jail sentence, even if it awakens the entire neighborhood.

Model Penal Code and COMMENTARIES, Part II, § 250.2 (ALI 1980) (footnotes omitted). I glean from the commentary to the model provision that the grading of the offense of disorderly conduct was keyed to the degree of the intended harm, not to whether it was aimed at the public.

¶ 7 Further, and unlike the majority, I do not find that an examination of Section 5503(b) in the fuller context of its placement in Article F, Chapter 55 of the Crimes Code, evidences an intent that the offense be graded as a misdemeanor of the third degree only if the actor intended to cause substantial harm to the public or serious inconvenience to the public. As a general matter, and as relevant here, one of the purposes of the Crimes Code of 1972 was “[t]o safeguard conduct that is without fault from condemnation as criminal.” 18 Pa.C.S.A. § 104(2). Thus, the public disorder offenses of riot (18 Pa.C.S.A. § 5501), failure of disorderly persons to disperse upon official order (18 Pa.C.S.A. § 5502), and disorderly conduct (18 Pa. C.S.A. § 5503),8 became intent-based offenses. Another important purpose of the Crimes Code of 1972 was to “differentiate on reasonable grounds between serious and minor offenses.” 18 Pa.C.S.A. § 104(5). This differentiation, as one commentator has accurately described, was built into the present statutory scheme for the public disorder offenses:

[T]here appears in the new [Crimes] Code [of 1972] a rational gradation of the offenses which was wholly absent from the 1939 Penal Code. To replace the sometimes imponderable definitions of the past law, the new Code offers a *904sensible separation of violent group behavior, which is inherently more dangerous, from the less serious offenses of individual disorderliness. Incumbent upon the success of any such statutory scheme is the need for a corresponding graduated scale of punishment. The new Code sections provide for this by punishing the potentially most dangerous offense of group violence [i.e., riot] most heavily and the least dangerous act of individual unruliness [i.e., disorderly conduct] most lightly. It is fair as well as rational to ‘provide aggravated penalties for disorderly conduct where the number of participants makes the behavior especially alarming’ to the community.
Thus, the new Code provides for a graduated pattern of offenses and punishments according to the seriousness of the acts and the number of participants involved. Each offense is grounded on the intent of the individual actor. Once the intent is established the punishment is made commensurate with the threat to the community as demonstrated by the nature of the act or the number of people involved. The individual act of disorderly conduct is subjected to relatively light penalties upon conviction. Where three or more individuals participating in disorderly conduct fail to disperse upon a reasonably given official order, their potential penalty is greater. And when the disorderly conduct of three or more individuals acting in concert reaches the level of the four specific instances designated as riot, the penalty is most severe.

“Public Disorder Offenses,” 78 Dick. L.Rev. at 30-31 (footnotes omitted, emphasis added) (citing Model Penal Code § 250.1 — Comment (Tent. Draft No. 13, 1961)).

8 Thus, I perceive from the broader statutory grouping of Sections 5501, 5502, and 5503 that grading for the public disorder offenses is tied to a legislative determination that disorderly conduct involving three or more persons (i.e., riot) is the most harmful to the community and that disorderly conduct by a single individual not grounded in an intent to cause “substantial harm” or “serious inconvenience” is the least harmful to the community. The statutory structure thus provides for four levels of punishment: third degree felony (§ 5501), second degree misdemean- or (§ 5502); third degree misdemeanor (§ 5503(b) for individual disorderly conduct accompanied by intent to cause “substantial harm or serious inconvenience”); and summary offense (§ 5503(b) for individual disorderly conduct unaccompanied by intent to cause “substantial harm or serious inconvenience”). Nothing intrinsic to this structure suggests that the intent to cause “substantial harm or serious inconvenience” required for the misdemean- or version of the Section 5503 offense must be aimed at the public. Indeed, by assigning a grade based on the actor’s intent to cause different degrees of harm, the legislature is able to differentiate between two different acts (both of which constitute the offense of disorderly conduct under Section 5503) and to punish one more harshly than the other. This is clearly what our legislature (and the drafters of the Model Penal Code provisions upon which our public disorder offenses are modeled) intended.

¶ 9 Thus, my examination of the plain language of Section 5503(b) and the statutory section as a whole, as well as the section’s placement in the broader context of the Crimes Code, convinces me that the word “public” does not and was not intended to modify “substantial harm or serious inconvenience” as those terms relate to grading the offense under Section 5503(b). I do not believe this interpretation is in *905any way absurd or unreasonable; rather, it implements the plain language of the statute.

¶ 10 I recognize that two prior panels of this Court have read Section 5503(b) as does the majority, but, believe the foregoing analysis exposes the flaw in that interpretation. This Court, sitting en banc, may overrule a decision of a three-judge panel of this Court. See Commonwealth v. Smith, 772 A.2d 75, 78 n. 7 (Pa.Super.2001) (en banc), rev’d on other grounds sub nom. Commonwealth v. Gatling, 570 Pa. 34, 807 A.2d 890 (2002). It may also disapprove of statements or rationale contained in prior decisions of a three-judge panel without overruling them. See Commonwealth v. Miller, 430 Pa.Super. 297, 634 A.2d 614 (1993) (en banc) (disapproving of the rationale and statements contained in numerous prior decisions of this Court). Thus, after careful consideration of Commonwealth v. Coon, 695 A.2d 794 (Pa.Super.1997), and Commonwealth v. Smith, 811 A.2d 578 (Pa.Super.2002), I would disapprove of select statements in Coon9 and overrule Smith which obviously relied upon Coon’s erroneous statement of the law. My position is consistent with Commonwealth v. Reynolds, 835 A.2d 720 (Pa.Super.2003), in which a panel of this Court, without citing Coon or Smith, upheld a conviction for disorderly conduct against a sufficiency of the evidence challenge where the defendant “acting in a public place [outside a tavern], threatened the life of his victims with a gun, thereby actually creating a risk of public alarm.” Id. at 731.

¶ 11 My interpretation of Section 5503(b) requires that I next consider whether the evidence here was sufficient to support the conviction for disorderly conduct graded as a third degree misdemeanor.10 I readily conclude that it was. At trial, the victim testified that while Jack Schmader was yelling and poking him in the chest, Appellant was standing behind Schmader, loudly and coarsely urging him to “hurt” or “f— up” the victim. N.T. Trial, 3/12/04, at 11-13. She was obviously quite agitated as her boyfriend, Eric Hutchinson, was observed trying to calm her down. Id. at 13. She then helped Schmader and Hutchinson leave the scene of the assault.11 Id. at 17. A jury could reasonably infer from this evidence, which is both direct and circumstantial, that Appellant intended through her obnoxious goading to cause “substantial harm” or “serious inconvenience” within the meaning of 18 Pa.C.S.A. § 5503(b). Accordingly, I conclude that the conviction is supported by sufficient evidence and would affirm the judgment of sentence.

. That the majority does such is best shown by its direct quotation from Commonwealth v. Greene, 410 Pa. 111, 117, 189 A.2d 141, 145 (1963), Majority Opinion at 11, and from the Revised Commentary, Model Penal Code § 250.2, at 328 (ALI 1980), Majority Opinion, at 12-13, both of which discuss the public nature of the offense itself, not its grading.

. “Public” in subsection (a) obviously modifies "inconvenience,” "annoyance,” and *902"alarm.'' See Commonwealth v. Young, 370 Pa.Super. 42, 535 A.2d 1141, 1143 (1988).

. These three offenses are those most logically grouped for purposes of this inquiry. Section 5501 was modeled on MPC § 250.1 and derived from Section 401 of the Pennsylvania Penal Code of 1939. It is graded as a felony of the third degree. See 18 Pa.C.S.A. § 5501 Official Comment — 1972. Section 5501 differed from its statutory predecessor in that "the offense [under the Crimes Code of 1972 was] specifically defined by restricting it to participation in a course of disorderly conduct in specified circumstances [and] intent or knowledge [was] now a requisite element in those specified circumstances [and] riot [had] become a felony of the third degree[.]” Comment, "Public Disorder Offenses Under Pennsylvania’s New Crimes Code,” 78 Dick L.Rjev. 1, 28 (1973) (footnotes omitted) (hereinafter "Public Disorder Offenses”); see also 18 Pa.C.S.A. § 5501 Official Comment — 1972. Section 5502, which arises only when a person participating in a course of disorderly conduct refuses or knowingly fails to obey an order to disperse, is graded as a misdemeanor of the second degree in every instance. Section 5502 was derived from MPC § 250.1 and was an entirely new offense, having no statutory predecessor. See 18 Pa.C.S.A. § 5502 Official Comment — 1972.

. Specifically, I disapprove of that portion of Coon which interpreted Section 5503(b) such that both "substantial harm” and "serious inconvenience” were modified by "public.” See Coon, 695 A.2d at 798. I would not overrule Coon, however, as the reasoning given to support reversal in Coon can also be read to depend on the Commonwealth’s failure to prove the public element of the offense itself under Section 5503(a).

. In reviewing a sufficiency of the evidence claim, "we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to determine whether there is sufficient evidence to enable the factfinder to find eveiy element of the crime established beyond a reasonable doubt.” Commonwealth v. Hartle, 894 A.2d 800, 803-04 (Pa.Super.2006).

.While Schmader testified that Appellant was not at the scene of the assault and that he left alone in his Jeep, N.T. Trial, 3/12/04, at 102, 104-05, the jury obviously disbelieved his version of events. It is the province of the fact-finder to believe some, all, or none of the evidence and to assess the credibility of every witness. See Hartle, 894 A.2d at 804.