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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

E.J. STEWART

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1312 MDA 2018

Appeal from the Judgement of Sentence e ntered 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

convict ion 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

.

_________________ __________ ______ ____ _______

1 The 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).J

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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 f uc king 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 f uc king 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, he r 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 “ I f you keep on calling people the “n” word around

here th ey will end up shooting you.” She further claimed t h at [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.”J

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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 stateme nt of error s 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 r isk thereof, he . . . uses obscene language, or makes an obscene gesture?

Appellant’s brief at 5.J

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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 clai ms 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 esta blishes 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

ca n 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 d isorderly c onduct

under each of the first three subsections of 18 Pa.C.S. § 5503(a) , which

provides in relevant part as follows :

(a) O ffense 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)

.J

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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 cla ims , 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 presente d. See Commonwealth v. Lord

, 719 A.2d 306, 309 (Pa.

1998) (holding that i f 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 heJ

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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 § 55 03 demands proof that

A ppellant by h is 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 “ unrea sonable 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 f act, cause unreasonable noise as proscribed

under the disorderly conduct statute. T he 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 areaJ

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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 “f uc king ” 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.” I d . 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 t his set of circumstances

tha t Appellant had the requisite intent to upset the public peace.

T he 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 i n his bedroom

with the window shut, and the Appellant was at his truck, which was par k ed

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 so meone from a nearby intersection

. Id . at 23, 24. Thus, the evidence

sufficiently established that Appellant ’ s vocal noise did , in fact, rise to anJ

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audible level that upset the public peace. Accordingly, no relief is due on

Appellant’s second issue.

Tur ning 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, w ith regard to sub section (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 who le, lacks serious literary, artistic, political, or scientific value.

Id

. at 24; s ee 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 ourJ

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legislature in defining wha t constitutes obscene materials. Bryner

, supra at

912

. 2

With the Miller definition in mind, e ven when viewing the evidence in

the light most favorable to the Commonwealth, Appellant’s usage of the word

“fucking,” while offensive and abrasive, w as not sexually explicit in nature.

S ee Commonwealth v. Pennix

, 176 A.3d 340, 346 (Pa. Super. 2017)

(holding appellant ’ s remarks of “ F uck you police

. . . I don ’ t got time for you

f uck ing 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

_________________ __________ ______ ____ _______

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 referr ed 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 th o se 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.J

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accordingly reverse Appellant’s conviction of disorderly conduct under

sub section (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 sc heme, 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 sub section (a)(3)

reversed; judgement of sentence vacated; c ase remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/18/2019