J-S12011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

E.J. STEWART 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1312 MDA 2018

Appeal from the Judgement of Sentence entered 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 

conviction 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.

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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).
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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 fucking 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 fucking 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, her 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 “If you keep on calling people the “n” word around 

here they will end up shooting you.” She further claimed that 

[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.”
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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 statement of errors 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 risk thereof, he 

. . . uses obscene language, or makes an obscene gesture?

Appellant’s brief at 5. 
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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 claims 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 establishes 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 

can 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 disorderly conduct

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

provides in relevant part as follows:

(a) Offense 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).
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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 claims, 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 presented. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 

1998) (holding that if 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 he 
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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 § 5503 demands proof that

Appellant by his 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 “unreasonable 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 fact, cause unreasonable noise as proscribed 

under the disorderly conduct statute. The 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 area
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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 “fucking” 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.” Id. 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 this set of circumstances

that Appellant had the requisite intent to upset the public peace.

The 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 in his bedroom 

with the window shut, and the Appellant was at his truck, which was parked 

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 someone from a nearby intersection. Id. at 23, 24. Thus, the evidence 

sufficiently established that Appellant’s vocal noise did, in fact, rise to an 
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audible level that upset the public peace. Accordingly, no relief is due on 

Appellant’s second issue. 

Turning 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, with regard to subsection (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 whole, lacks serious literary, artistic, political, or

scientific value.

Id. at 24; see 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 our
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legislature in defining what constitutes obscene materials. Bryner, supra at

912.

2

With the Miller definition in mind, even when viewing the evidence in

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

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

See Commonwealth v. Pennix, 176 A.3d 340, 346 (Pa.Super. 2017)

(holding appellant’s remarks of “Fuck you police . . . I don’t got time for you

fucking 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 

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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 referred 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 those 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.
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accordingly reverse Appellant’s conviction of disorderly conduct under

subsection (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 scheme, 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 subsection (a)(3)

reversed; judgement of sentence vacated; case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/18/2019