J. A02032/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
Circulated 02/21/2020 09:56 AM 

COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS 

vs. 

BRIAN PAUL SIMPSON, 

Defendant. 

: LAWRENCE COUNTY, PENNSYLVANIA 

: SUMMARY APPEAL 

: NO. 92 OF 2018 

For The Commonwealth: 

For The Defendant: 

cox, J. 

APPEARANCES 

Jonathan R. Miller, Esq. 

Office of the District Attorney 

430 Court Street 

New Castle, PA 16101 

Pro Se 

OPINION 

April 12, 2019 

53RO 

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This Opinion is authored pursuant to Pa.R.A.P. 1925(a). 

Brian Paul Simpson appealed to the Court of Common Pleas from the guilty 

finding by the magisterial district judge. This court held a de novo trial on January 29, 

2019. This court found Simpson guilty of violating 18 Pa.C.S.A. § 5503(a)(2). Simpson 

filed a notice of appeal on February 26, 2019. This court ordered the preparation of a 

Pa.R.A.P. 1925(b) Concise Statement of the Errors Complained of on Appeal. Simpson 

filed the Concise Statement on March 21, raising six errors. 

The facts which make up this case are as follows: 

On Thursday, April 5, 2018, Trooper Jerel T. Smith and Trooper Robert Cox were 

I 

working the midnight to 8 A.M. shift ·out of the New Castle Barracks of the Pennsylvania 

F1LED/ORIG1NAL 

2019 APR I 2 PH 2: 07 

JODlKLABON·ESOlOO 

oon t,,.�·\n CLERK. 
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State Police.

1 The Pennsylvania State Police received a noise complaint about shooting 

at around 3:00 AM. made by Simpson's neighbor, either John Argiro or his wife. The 

State Police dispatch contacted Simpson and requested him to proceed to a nearby 

Dollar General so the responding officers could speak to him safely.

2 Trooper Smith was 

first dispatched to the house of John Argiro before meeting Simpson 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 Simpson to not shoot his firearm at that time of night or he 

would probably be cited.

3 The same procedure of meeting at the Dollar General was 

used in the prior incident. Simpson was not charged based on this prior incident.4 

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 Simpson and Trooper Smith. 

5 

Argiro testified Simpson 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.

6 Argiro did not see a flash on the particular incident in question.' 

Argiro also testified that Simpson does not shoot during the daytime, only in the 

early morning.

8 

1 Notes of Testimony, January 29, 2019, p. 31, 34. 

2 Notes of Testimony, January 29, 2019, p. 32, 35. 

3 Notes of Testimony, January 29, 2019, p. 31-33. 

4 This court considers this warning for the sole purpose of the due process reliance doctrine discussed 

herein. 

5 Notes of Testimony, January 29, 2019, p. 35. 

6 Notes of Testimony, January 29, 2019, p. 6, 29. 

7 N.T., January 29, 2019, p. 9. FILEDJORIGIN"L 

8 NT., January 29, 2019, p. 10. 

2019 APR I 2 P" 2: 07 

2 

JODI KLAOON·�SOLOO 

__ .... • �·!"'> ,.,, r'.01/ 
53R D 

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While it was clear Argiro and Simpson 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, Trooper Smith indicated the 

reason Simpson gave for shooting at that time was because he did not like some lights 

which shone into his bedroom and disturbed his sleep.

9 

This court credited Trooper Smith as credible. 

Did the citation comport with D.ue. Process? 

Simpson's first claim of error is that this court violated his due process rights 

because the original citation and this court's guilty finding with regard to Section 

5503(a)(2) do not comport with the requirement of a formal charge under the Sixth 

Amendment to the United States Constitution. 

Simpson is correct that the right to formal charges is guaranteed under the Sixth 

Amendment. 

"The right to formal notice of charges in a criminal proceeding is guaranteed by 

the Sixth Amendment to the United States Constitution and is so basic to the fairness of 

subsequent proceedings that it cannot be waived even if the defendant voluntarily 

submits to jurisdiction of the court. Formal accusation and specific charge enables a 

defendant to properly defend and protect himself from further prosecution of the same 

offense, and enables the court to determine the sufficiency of the prosecution's case to 

support a conviction." Com. v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. Ct. 1997) 

(citing Com. v. Goldblum, 447 A.2d 234 (Pa. 1982)). 

For summary offenses, Pa.R.Crim.P. 403(a)(6)

10 provides: "(A) Every citation shall 

contain: (6) a citation of the specific section and subsection of the statute or ordinance 

9N.T, January 29, 2019, p. 36. 

3 
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allegedly violated, together with a summary of the facts sufficient to advise the defendant 

of the nature of the offense charged;" 

The citation in the present case charges a violation of 18 Pa.C.S.A. § 5503(a)(1), 

(2), (3), and (4). As these subsections all relate to very different fact patterns under the 

general umbrella of disorderly conduct, the citation plainly violates the requirement that 

the defendant is given notice of the specific section and subsection under which he is 

charged. 

The remedy for violation of this rule is not universally dismissal. Actual prejudice 

against the defendant is required for that remedy. Pa.R.Crim.P. 109 says: "A defendant 

shall not be discharged nor shall a case be dismissed because of a defect in the form or 

content of a complaint, citation, summons, or warrant, or a defect in the procedures of 

these rules, unless the defendant raises the defect before the conclusion of the trial in a 

summary case or before the conclusion of the preliminary hearing in a court case, and 

the defect is prejudicial to the rights of the defendant." (emphasis added). 

"Such prejudice will not be found where the content of the citation, taken as a 

whole, prevented surprise as to the nature of summary offenses of which the defendant 

was found guilty of at trial, or the omission does not involve a basic element of the 

offense charged." Com. v. Nicely, 988 A.2d 799, 807 (Pa. Cmwlth. Ct. 2010) (cleaned 

up). 

The citation in the present case provides notice of the general section under 

which he was charged, Section 5503(a), and then states: "To Wit SIMPSON did fire his 

rifle at 0300 hrs. on a school night which caused the public to be annoyed and alarmed." 

io Borriello deals with Rule 53 of the Rules of Criminal Procedure. As to subsection (a)(6), Rule 53 and its 

replacement Rule 403 are facsimiles. 

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This final sentence of the citation cannot be read except as a noise-based citation. 

Section 5503(a)(2) is the sole section which dealt with noise. The superfluous charging 

of the other subsections did not cause prejudice to Simpson, and his citation should not 

be dismissed on this basis. 

The second claim of error by Simpson consists of two subclaims. 

i. Did the C.ommonwealth sufficiently prove. the .. mens rea .element? 

First is the general claim he did not have the intent required under Section 5503. 

The intent element of Section 5503 requires the Commonwealth to prove, at a 

minimum, the defendant recklessly created a risk of public inconvenience, annoyance, or 

alarm. 

In Com. v. Alpha Epsilon Pi, 540 A.2d 580 (Pa. Super. 1988), the Superior Court 

reviewed the question of whether loud music could constitute unreasonable noise. "[T]he 

intent element may be satisfied on a showing of recklessly creating a risk of public 

inconvenience or annoyance. Here, a music sound system was operated at 11 :20 at 

night [on a Wednesday), from a dwelling house with the windows open, such that the 

sound was heard by a resident living on a parallel street one block distant, and the sound 

continued such that it was readily heard by an investigating police officer at a distance of 

fifty yards from the house. These facts are sufficient to permit the trier of fact to find a 

reckless disregard for public inconvenience and annoyance." kt at 583-584. 

Here, a gun was fired multiple times at around 3:00 A.M. on a Thursday. The 

shots were fired outside and were heard from a residence around 200 yards away. 

Based on Alpha Epsilon Pi, the facts were clearly sufficient to find reckless disregard for 

public inconvenience and annoyance. Additionally, Simpson had a specific grievance 

5 
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about lights shining through his window, which he told Trooper Smith when he was 

contacted about his shooting on April 5, 2018. This specific grievance and Simpson's 

response to that grievance further support the conclusion he had intent to cause public 

inconvenience, annoyance, or alarm. 

ii. Does the due process reliance doctrine bar the prosecution? 

The second subclaim is that the North Beaver Township Police told him his 

shooting was legal, and that controls the outcome of this case. 

The due process reliance doctrine, sometimes called entrapment by estoppel, is 

an exception to the maxim that mistake of law is no defense and is raised when a 

defendant alleges he relied on official statements which affirmed the legality of certain 

behavior. Com. v. Kratsas, 764 A.2d 20, 31 (Pa. 2001). While the defense forecloses 

prosecution should it apply, it is "rarely available," and arises "in a narrow set of unique 

and compelling circumstances." .!.Q.. at 31, 32. 

Pennsylvania has adopted a four-factor approach in applying the due process 

reliance defense. 

"First, in order to support invocation of the doctrine, most jurisdictions require that 

there be an affirmative representation that certain conduct is legal. .. Second, the 

representation should be made by an official or a body charged by law with responsibility 

for defining permissible conduct respecting the offense at issue. Third, actual reliance 

upon the official's statements should be present... Finally, the view is commonly held that 

reliance must be in good faith and reasonable given the identity of the government 

official, the point of law represented, and the substance of the statement. Reliance is 

reasonable and in good faith only where a person truly desirous of obeying the law would 

6 
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have accepted the information as true, and would not have been put on notice to make 

further inquiries." � at 32-33 (numerous citations omitted). The party seeking to apply 

the defense bears the burden of proving each element. � at 33. 

Simpson fails multiple aspects of this test. 

First, Simpson must prove there was an affirmative representation that certain 

conduct is legal. Simpson points to statements of North Beaver Township Police in 

allegedly assuring him his conduct was legal. While Simpson argues these statements 

were made, their contents were never brought into evidence by any means. Throughout 

the de novo trial, Simpson attempted on cross-examination of the Commonwealth's 

witnesses to present these statements through hearsay and argument, but neither the 

substance of the statements nor their speaker was ever admitted. No North Beaver 

Township official was called to testify or appeared at the hearing. Simpson fails the first 

factor. 

Second, no evidence was introduced about who on the North Beaver Township 

Police made an affirmative statement and in what context the statement was made. 

These are critical factors under the due process reliance doctrine and must be shown 

even when an affirmative statement is made. The context of the statement is important to 

provide evidence about whether an individual should justifiably rely or it was just laxity of 

enforcement. Laxity of enforcement is insufficient to justify the application of the doctrine. 

kl at 33. 

In Cox v. Louisiana, 379 U.S. 559 (1965), the highest police officials of a city 

interpreted a statute prohibiting demonstrations "near" a courthouse. l!t. at 572. These 

high police officials, in the presence of the sheriff and mayor of the city, told 

7 
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demonstrators they could protest across the street from the courthouse. Later, the sheriff 

ordered the group to disperse, contradicting the previous interpretation which was made 

in his presence. The demonstrators were charged with violations of the courthouse 

proximity statute. 

In Raley v. Ohio, 360 U.S. 423 (1959), the Un-American Activities Commission of 

the State of Ohio held a hearing in which it examined individuals relating to Communist 

Party activities of several individuals. At one point in testimony, the Chairman of the 

Commission erroneously told a witness: "I should like to advise you under the Fifth 

Amendment, you are permitted to refuse to answer questions that might tend to 

incriminate you. * * * But you are not permitted to refuse to answer questions simply for 

your own convenience." [d, at 426-427. Later, this witness and others were prosecuted 

for contempt of the commission for their refusal to answer questions. 

The Supreme Court in both of these cases reversed the convictions based on the 

reliance on official interpretations, but in each case, the officials making the interpretation 

were in high-ranking positions. The Supreme Court emphasized in Raley the Chairman 

of the Commission was in a clear position to give such assurances: "the Chairman of the 

Commission, who clearly appeared to be the agent of the State in a position to give such 

assurances"; "the State clearly had told him was available to him"; "they were the voice 

of the State." (emphases added). 

Due process reliance will not apply in most circumstances when there is an 

erroneous interpretation of the law by a party who is not generally in charge of 

performing such interpretation. In this case the record does not provide any clarification 

8 
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about who told Simpson he could shoot and in what context. It was Simpson's burden to 

demonstrate these facts. 

Finally, the Court does not find it credible Simpson actually relied, in good faith, on 

the statements of a member of the North Beaver Township Police. Simpson's behavior 

indicates he would only accept statements which affirmed his belief his conduct was 

legal. Trooper Smith testified that prior to the April incident for which Simpson is charged 

here, he and Trooper Young responded to a call at 2:00 A.M. or 3:00 A.M. and informed 

Simpson he could not shoot his gun at that time of night. Simpson's continued use of his 

firearm at that time of night indicates both he was not "truly desirous of obeying the law" 

and undermines the reliance Simpson may have had on the North Beaver Township 

Police being "the voice of the State." 

Simpson's argument on these bases is unpersuasive. 

Did the Commonwealth sufficiently prove public harm? 

Simpson's third claim of error is that there was insufficient evidence of the public 

harm element because the complainant and the Defendant both were on their own 

private properties. "Being in public is necessary to convict, both for the Defendant and 

Complainant. The Court stated Defendant was in a public area. He was not. He was on 

his private property at all times that the target shooting occurred. �

11 

"(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) makes unreasonable noise." 18 Pa.C.S.A. § 5503(a)(2). 

"(c) Definition.--As used in this section the word "public" means affecting or likely 

to affect persons in a place to which the public or a substantial group has access; among 

11 Concise Statement of the Errors Complained of on Appeal, Error 3. 

9 
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the places included are highways, transport facilities, schools, prisons, apartment 

houses, places of business or amusement, any neighborhood, or any premises which 

are open to the public." 18 Pa.C.S.A. § 5503(c) (emphasis added). 

Simpson engaged in target shooting in a neighborhood with multiple properties. 

Argiro testified his house was between 150-200 yards from Simpson's property where he 

was shooting. 

Simpson need not have been on public property in order to cause public 

inconvenience under Section 5503. Sound which emanates out from private property into 

a neighborhood can constitute a violation even if all parties involved are on private 

property. Alpha Epsilon Pi, supra. 

Did Simps.on's shooting fit within the normal noisiness of the 

neighborhood? 

Simpson's fourth claim of error is that his firing of a firearm at 3:00 AM. is not 

unreasonable noise because it fits within the general noise profile of the neighborhood in 

which his shooting happened. 

Simpson is correct that the relative noisiness of a neighborhood is relevant to the 

charge of disorderly conduct. He also appropriately defines the test for unreasonable 

noise under Pennsylvania law. "Noise must be "unseemly" to constitute disorderly 

conduct, and that "unseemly" is understood to mean "not fitting or proper in respect to 

the conventional standards of organized society, or a legally constituted community." 

Alpha Epsilon Pi, 540 A.2d at 583. 

Alpha Epsilon Pi again presents factual and argumentative similarity to the 

present case. There, the fraternity argued because the neighborhood was on "fraternity 

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row", where presumably the noise cited did not significantly deviate from the normal 

range of noise in that area. l!;L at 583. The Superior Court did not put much weight on 

that argument. !Q,, While persuasive, this issue did not appear to be the central question 

of Alpha Epsilon Pi. 

In the present case, Defendant was shooting his firearm at 3:00 A.M. on a 

weeknight. His shots could be heard from inside another house 150-200 yards away. 

As examples of why this noise fit within the regular noise of the neighborhood, 

Simpson elicited testimony that residents of the neighborhood, including Argiro, would 

hunt during the daytime and that fireworks were also common in the summertime at night 

and during the daytime. This court, in judging the facts of the case, finds a qualitative 

difference between the recreational use of fireworks in the summertime, fireworks in the 

daytime, shooting in the daytime, as compared to the shooting the Defendant did at 3:00 

A.M. The shooting at this time of night was outside of the noise which fit within the 

conventional standards of this neighborhood. 

Additionally, as part of the fourth claim of error, Simpson argues the Court should 

have allowed him to continue to develop the line of questioning about the standards of 

the neighborhood. The transcript of the de novo trial reflects this court allowed Simpson 

to develop this area of fact development.12 During that development, this court only 

stopped the questioning on three occasions, first when examination became 

argumentative, second, when repetitive questions were asked, and third when Simpson 

asked a question relating to the witness' opinion about the legality of fireworks. 

At no time did this court prevent Simpson from factually developing the area of the 

relative noise in the neighborhood. 

12 Notes of testimony, January 29, 20rn, pp. 18-23. 

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Errors 5 and 6: fs there a statutory: defense to the prosecution? 

The fifth and sixth claims state this court erred in not applying 34 Pa.C.S.A. § 

2507(b)(4) and 35 P.S. § 4501 as exempting Simpson's behavior from the charge of 

Disorderly Conduct. 

34 Pa.C.S.A. § 2507(a) states: "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(b) creates exceptions to the summary offense created by 

subsection (a). "(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." (emphasis added). 

Simpson is not charged under Section 2507(a). The 2507(b)(4) defense does not 

apply to all offenses, only those listed under 2507(a). 

As to the application of 35 P.S. 4501, that section states: "All owners of rifle, 

pistol, silhouette, skeet, trap, blackpowder or other ranges in this Commonwealth shall 

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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." 

This court would hold as a matter of law that Simpson's informal activity of target 

shooting on his property does not make him an owner of a range for the purposes of 

Section 4501. While Section 4501 does not include a definitions section, it 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. While there would be marginal situations of course, and 

this court does not intend to limit the definition to solely commercial ranges, the extreme 

informality of Simpson's specific shooting activity makes it difficult for this court to 

characterize him as an 'owner of a range' even what that phrase is taken in a very broad 

sense. 

For the sake of a full consideration of the question, a discussion of the field 

follows: 

"The object of all interpretation and construction of statutes is to ascertain and 

effectuate the intention of the General Assembly." 1 Pa.C.S.A. § 1921 (a). 

A review of the legislative history of Section 4501 reveals some discussion of the 

purpose of the statute around the time of its enactment. In the 1987-1988 Session, 

Section 4501 was enacted as part of HB1818. During the senate's consideration of the 

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bill, Senator Greenwood offered the statement: "The intent of the author of this legislation 

and its chief sponsors in this and the other House correctly want to protect shooting 

ranges from nuisance suits or from overregulation that would inhibit them from being 

enjoyed by their members." 1988 Leg is. J. No. 35, 2225 (emphasis added). 

This statement moderately implies that the intent of the legislature was to 

immunize organized shooting ranges, rather than to immunize every sportsman who 

wants to put up a target in their backyard without limit. 

The Court also conducted a review of other states to determine if there were 

similar statutes which may have been a reference in the construction of the Pennsylvania 

statute. Unfortunately, Pennsylvania adopted its statute in 1988, and of the many other 

states which immunize shooting ranges against noise, it appears all comparable statutes 

were enacted after that date. 

That being said, a review of these statutes indicates broad legislative agreement 

among the several states that it would be prudent to protect shooting ranges when they 

are properties that are truly designed for shooting sports. The states have different 

methods of preserving this limitation. Ohio requires "a facility operated for the purpose of 

shooting with firearms or archery equipment.." Ohio R. C. § 1533 .83. Alaska requires 

"[a]n area designed and used for rifle shooting ... " Ala. Code§ 6-5-341.

13 

Given the broad agreement among states to not include all shooters in the 

definition of shooting range, as well as the statement of Senator Greenwood at the time 

of the Pennsylvania enactment, it is reasonable to infer the intent of the legislature fell 

13 See also Brief for Respondent, Lone Pine Hunters' Club, Inc. RESIDENTS DEFENDING THEIR 

HOMES, et at., v. LONE PINE HUNTERS' CLUB, INC., Town of Hollis & Town of Hollis Planning Board., 

2006 WL 4649234 (N. H.) (providing a helpful listing of many state statutes on this topic) 

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within this broad agreement and did not intend to reach informal backyard shooting 

ranges in its protection. 

Moreover, the disorderly conduct statute is a noise control law. The immunity 

created by Section 4501 provides a carve-out for noise control laws which were extant at 

the time of the enactment of 4501. As the disorderly conduct statute was extant at the 

time of the passing of 4501, it applies to Defendant. 

In any event, Section 4501 should be considered an affirmative defense. The 

burden of proof and the burden of persuasion for affirmative defenses rest on the party 

raising that defense. Section 4501 's immunity only applies to 'normal ard accepted 

shooting activity.' Simpson's case did not present any evidence his behavior fell within 

normal and accepted shooting activity. Under any circumstances, it is hard for this court 

to imagine it is normal and accepted shooting activity to shoot at 3 AM. on a weeknight 

in open-air in an area which has neighboring residential properties. In fact, the testimony 

he elicited from John Argiro made clear the normal shooting activity in that area was 

confined to daytime hunting. Accordingly, under the facts presented, Simpson's behavior 

fell outside the normal and accepted shooting activity of the community in which it 

occurred. 

The conviction should be affirmed. 

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