J-A12015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GLEN BENSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3971 EDA 2017

Appeal from the Judgment of Sentence October 24, 2017

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-SA-0001142-2015

BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED AUGUST 15, 2018

Glen Benson appeals pro se from the judgment of sentence imposed 

after he was convicted of the summary offense of disorderly conduct. We 

affirm.

The following summarizes the evidence offered at Appellant’s May 17, 

2016 de novo trial in the common pleas court after he was convicted by the 

magistrate. On August 21, 2015, Appellant purchased a loveseat slipcover 

and curtain tiebacks at a K-Mart in Delaware County. As his rewards card was 

not scanned to earn an additional discount, he sought to have the cashier rering the transaction. A supervisor of cashiers, Natasha Moore, testified that 

she advised Appellant that, because K-Mart was in liquidation and all sales 

were thus final, the transaction could not be cancelled and Appellant would 

instead have to call a toll-free number to obtain his rewards points. Ms. Moore 

indicated that Appellant became angry, called her names and cursed at her, 
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threatened to smack her, and approached her with his hand in a fist. The 

police were called, but arrived after Appellant had left the store. Ms. Moore 

did not file an incident report with K-Mart, and did not know whether anyone 

else had filed one.

Appellant, who at trial was represented by counsel, testified in his 

defense, indicating that it was Ms. Moore, not he, who became irate, initially 

screaming at the cashier when she requested the code from Ms. Moore to 

change the transaction. When Appellant posited to Ms. Moore that the sale 

could not be final because he had not yet signed to authorize the purchase, 

she turned her wrath towards him. Appellant contended that Ms. Moore was 

the aggressor, and verbally assaulted him until other K-Mart employees 

intervened to remove Ms. Moore from the scene. Appellant stated that he 

called K-Mart’s corporate number and made a complaint about Ms. Moore. 

Appellant also offered a character witness, Jennifer Stamm, who attends 

the church at which Appellant is minister. Ms. Stamm testified that Appellant

has a reputation in the community as a peaceful, law-abiding, and loving 

person. Two additional character witnesses who were present were not called 

to testify in Appellant’s defense, as his counsel determined that their evidence 

would be redundant. 

Upon this evidence, the trial court convicted Appellant of disorderly 

conduct and sentenced him to pay a fine of $100. Appellant filed a motion for 

reconsideration. The trial court granted Appellant’s motion, vacated the 
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judgment of sentence, and scheduled a reconsideration hearing for August 9,

2016. At the conclusion of the hearing, the trial court determined that no 

relief was due, but did not impose a new sentence. Appellant’s appeal from 

that determination was quashed by this Court, and, upon remand, the trial 

court re-imposed the sentence of a fine of $100. 

Appellant filed a notice of appeal that was docketed on November 30, 

2017. However, the docket also reflects that the trial court entered an order 

three days prior, on November 27, 2017, requiring Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant filed his statement on December 22, 2017. 

As an initial matter, we consider whether we have jurisdiction over this 

appeal, as Appellant’s notice of appeal was not filed within thirty days of the 

imposition of his judgment of sentence on October 24, 2017. To have been 

timely, Appellant’s notice of appeal had to have been filed by Monday, 

November 27, 2017.1 Appellant’s notice was dated November 20, 2017, and 

was received by the trial court no later than November 27, 2017, given the 

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1 The thirtieth day fell on Thanksgiving, and the trial court was also closed the 

following day. See 1 Pa.C.S. § 1908 (providing that the calculation of time 

periods omits weekends and holidays when the last day of the period is a 

weekend or holiday). Accordingly, the following Monday was the last day on 

which Appellant could file a timely notice of appeal. 
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issuance that day of the Rule 1925(b) order. Based upon this record, we 

decline to find that Appellant’s notice was untimely.2 

We next must determine whether Appellant complied with Pa.R.A.P. 

1925(b). His statement was neither filed within twenty-one days of the court’s 

order nor was it a concise statement of errors. The trial court advocates 

waiver based upon the latter defect, noting that Appellant did not, as the Rule 

instructs, identify only the errors he intended to challenge on appeal, but 

instead filed a six-page document more akin to an appellate brief. Trial Court 

Opinion, 12/22/17, at 5. However, as the trial court was able to glean from 

the statement the issues Appellant presents to this Court, and addressed 

those issues in its opinion, we decline to find waiver on this basis. 

Waiver also does not attach to Appellant’s filing the statement on the 

twenty-second day following the docketing of the trial court’s order directing 

him to file one within twenty-one days. The docket does not reflect when the 

order was served on Appellant, or even that it was served on him. See

Pa.R.Crim.P. 114. Accordingly, the order was not properly entered, and 

waiver for failure to comply with it may not result. See, e.g., 

Commonwealth v. Davis, 867 A.2d 585, 588 (Pa.Super. 2005) (en banc) 

(holding no waiver for failure to file concise statement where the clerk of 

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2 Neither the trial court nor the Commonwealth contends that this appeal is 

untimely. 
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courts did not indicate that there even was service, let alone the date of 

service as required by Pa.R.Crim.P. 114).

We thus turn to the substance of Appellant’s appeal. Appellant’s brief 

is not a model of clarity, and is not in strict compliance with our appellate 

rules. However, we glean from his papers that he questions the evidentiary 

support for his verdict and disputes a number of the trial judge’s evidentiary 

rulings. Appellant’s brief at 7-18. 

We begin with Appellant’s sufficiency claim, for which our standard and 

scope of review are de novo and plenary, respectively. Commonwealth v. 

Williams, 176 A.3d 298, 305 (Pa.Super. 2017). A conviction is based upon 

sufficient evidence if “the evidence admitted at trial and all reasonable 

inferences drawn therefrom, viewed in the light most favorable to the 

Commonwealth as verdict winner, were sufficient to prove every element of 

the offense beyond a reasonable doubt.” Id. at 305-06. The Commonwealth 

may sustain its burden through wholly circumstantial evidence, and need not 

preclude all possibility of innocence. Id. at 306. “It is within the province of 

the fact-finder to determine the weight to be accorded to each witness’s 

testimony and to believe all, part, or none of the evidence.” Id. “Moreover, 

as an appellate court, we may not re-weigh the evidence and substitute our 

judgment for that of the fact-finder.” Id. 

Appellant was convicted of disorderly conduct. “A person is guilty of 

disorderly conduct if, with intent to cause public inconvenience, annoyance or 
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alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or 

threatening, or in violent or tumultuous behavior[.]” 18 Pa.C.S. § 5503(a)(1). 

“[W]hether a defendant’s words or acts rise to the level of disorderly conduct 

hinges upon whether they cause or unjustifiably risk a public disturbance. The 

cardinal feature of the crime of disorderly conduct is public unruliness which 

can or does lead to tumult and disorder.” Commonwealth v. Fedorek, 946 

A.2d 93, 100 (Pa. 2008) (quoting Commonwealth v. Hock, 728 A.2d 943, 

946 (Pa. 1999)) (emphasis omitted). 

The Commonwealth can establish the specific intent element of the 

offense with “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.” Commonwealth v. Troy, 832 A.2d 1089, 1094 

(Pa.Super. 2003) (internal quotations and citations omitted). Indeed, “when 

an offender engages in fighting or threatening, or in violent or tumultuous 

behavior in a public arena, even when that conduct is directed at only one 

other person, the offender may be subject to conviction for disorderly 

conduct.” Fedorek, supra at 100 (emphasis in original).

Appellant’s challenge to his conviction focuses upon the 

Commonwealth’s failure to produce evidence to corroborate Ms. Moore’s 

testimony and the trial court’s rejection of Appellant’s testimony, which 
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described Ms. Moore as the aggressor. Appellant’s brief at 16-17. These 

arguments have no support in the law or facts of this case. 

First, “the uncorroborated testimony of a single witness is sufficient to 

sustain a conviction for a criminal offense, so long as that testimony can 

address and, in fact, addresses, every element of the charged crime.” 

Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa.Super. 2018). 

Moreover, “the facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence.” Commonwealth v. 

DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001).

In the instant case, Ms. Moore testified to the following. In the K-Mart 

that was open to the public, Appellant called her names, cursed at her, 

approached her threateningly with a balled-up fist, and screamed in her face. 

N.T. Trial, 5/17/16, at 6. Appellant’s threatening caused “all the guys in the 

store” to advance upon the scene “to protect [Ms. Moore] from him.” Id. at 

7. This testimony alone is sufficient to sustain Appellant’s conviction. See

Fedorek, supra at 100-01 (collecting cases in which the evidence was

sufficient “where the underlying public acts involve, as in the instant case, the 

private melodramas of two or three people that also cause or create the risk 

of public disturbance”). 

It is axiomatic that “[t]he finder of fact . . . exclusively weighs the 

evidence, assesses the credibility of witnesses, and may choose to believe all, 

part, or none of the evidence.” Commonwealth v. Sanchez, 36 A.3d 24, 39 
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(Pa. 2011). Here, the trial court did not believe Appellant, and believed Ms. 

Moore. See N.T. Reconsideration, 8/9/16, at 9 (“[T]his case was really on 

credibility and I believe the lady from K-Mart and that’s it.”). We may not reweigh the evidence and substitute our judgment for that of the fact-finder. 

Commonwealth v. Chine, 40 A.3d 1239, 1242 (Pa.Super. 2012). 

Accordingly, we shall not disturb Appellant’s conviction upon his credibilitybased arguments.

We next consider Appellant’s evidentiary challenges, mindful of the 

following.

[T]he admission of evidence is solely within the discretion of the 

trial court, and a trial court’s evidentiary rulings will be reversed 

on appeal only upon an abuse of that discretion. An abuse of 

discretion will not be found based on a mere error of judgment, 

but rather occurs where the court has reached a conclusion that 

overrides or misapplies the law, or where the judgment exercised 

is manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will.

Commonwealth v. Murphy, 182 A.3d 1002, 1004–05 (Pa.Super. 2018)

(quoting Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015)). 

Appellant takes issue with several of the trial court’s evidentiary rulings. 

Appellant complains that his counsel was improperly restricted in his crossexamination of Ms. Moore, that the Commonwealth committed discovery 

violations, and that Appellant was erroneously precluded from introducing new 

evidence at the post-trial reconsideration hearing. Appellant’s brief at 7-12, 

16.
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We first consider the issues concerning the cross-examination of Ms. 

Moore. Appellant contends that the trial court should have allowed her to be 

questioned about whether K-Mart had an incident report concerning the 

episode in question, and about her motives for creating a false story and 

fabricating her testimony. Appellant’s argument is based upon his version of 

events: that Ms. Moore was in the wrong in verbally attacking Appellant, that 

her co-workers had to physically remove her from the scene, and that as a 

result, she was terminated from her position and needed to fabricate a “bogus 

story” to qualify for unemployment benefits. Id. at 7.

The trial court permitted counsel to cross-examine Ms. Moore as to her 

personal knowledge of the existence of an incident report. See Pa.R.E. 602 

(“A witness may testify to a matter only if evidence is introduced sufficient to 

support a finding that the witness has personal knowledge of the matter.”). 

Ms. Moore testified, and the trial court found it credible, that she did not file 

an incident report, and she did not know whether any such report was created 

by someone else. N.T. Trial, 5/17/16, at 10, 11. Appellant’s contentions that 

such a report must exist somewhere are based upon speculation. He does not 

indicate that he made any attempt to ascertain what K-Mart’s policy is 

concerning the creation of incident reports, let alone that he was prepared to 

offer proof that the absence of a report supported a finding that the incident 

did not happen as Ms. Moore detailed. As such, we find no abuse of discretion 

in the trial court’s rulings regarding an incident report. 
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Similarly, Appellant’s arguments about the trial court’s failure to allow 

him to question Ms. Moore about her motive to testify untruthfully finds no 

support in the record. The only indication that she faced discipline was 

Appellant’s objected-to hearsay testimony that some unidentified person, with

whom he spoke during a telephone call to K-Mart’s corporate telephone 

number, told Appellant that she would be disciplined. N.T. Trial, 5/17/16, at 

18, 21. Appellant never asked Ms. Moore if she was terminated from her 

employment as a result of the incident. Hence, the trial court did not wrongly 

interfere with Appellant’s cross-examination regarding motive as to any loss 

of employment.

Conversely, the record reveals that Appellant’s counsel did ask Ms. 

Moore about a civil suit being a motive for her testimony without constraint

from the trial court. Questioning by Appellant’s counsel was as follows.

Q All right; and isn’t it a fact that you told the District Attorney 

at the last listing that you wanted to sue [Appellant], civilly sue –

***

[Commonwealth]: Objection, relevance.

[Defense counsel]: It is relevant because it shows 

motive, Your Honor.

THE WITNESS: Motive for what?

THE COURT: You’re not allowed to ask him questions.

THE WITNESS: Oh.

THE COURT: So [Defense counsel], so you can ask --

you can -- you can answer the question.
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THE WITNESS: No. I did not tell the District Attorney 

that. Why would I want to sue him?

***

Q Well isn’t it a fact that you want to sue [Appellant], civilly?

A No. I really -- I’m tired of seeing him, to tell you the truth.

I don’t even understand why we’re back here. I don’t understand 

if all he got was a citation for Disorderly Conduct, why didn’t he 

just pay the fine and instead of me having to take off work to 

come – to continuously come to Court for a fine when he 

***

[Defense counsel]: Your Honor -- Judge, I asked her 

one specific question.

THE COURT: And I think she answered it.

[Defense counsel]: Okay. That’s fine, Judge.

THE COURT: Do you have any other questions, 

[Defense counsel]?

[Defense counsel]: I do not, Your Honor. Oh, I have 

one more question, Your Honor, if I may?

THE COURT: Of course.

***

Q The supervisor who was above you, did he come and -- well 

it was a woman, I believe, is that correct?

***

[Commonwealth]: Objection, relevance.

THE COURT: Tell me where this is going, [Defense 

counsel]?
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[Defense counsel]: The question is going to as to 

whether or not she was taken back by the supervisor

because she was acting rowdy?

THE WITNESS: No. I wasn’t, because my supervisor was 

the one that called the police on him.

[Defense counsel]: I have no further questions, Your 

Honor.

Id. at 12-14. 

Upon this record, we conclude that the trial court’s evidentiary rulings 

at trial do not warrant relief.

3

 

Appellant’s remaining issues concern the trial court’s rulings at the 

August 9, 2016 reconsideration hearing. Appellant was proceeding pro se, 

brought witnesses he sought to have testify, and indicated a desire to crossexamine Ms. Moore again. The trial court clarified that the reconsideration 

hearing was not a new trial, but rather an “opportunity to say what it was that 

[Appellant] think[s] that [the trial court] missed when [it] made [its] 

decision.” N.T. Reconsideration, 8/6/16, at 4. Appellant then complained that 

the Commonwealth did not provide discovery materials, particularly 

information from witnesses who were not called at the trial. Id. at 5-6. The 

trial court explained to Appellant that there is no right to pretrial discovery in 

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3 Appellant at oral argument also contended that he was prohibited from 

offering his own witnesses at trial. The record belies that assertion. As 

indicated above, counsel presented Ms. Stamm as a character witness, then 

indicated that he would forego calling the other two who were present because 

“it would be redundant.” N.T. Trial, 5/17/16, at 27. 
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a summary appeal matter. Id. at 6-8. The trial court advised Appellant that 

he could challenge the trial court’s rulings in an appeal to this Court. Id. at 

10, 11, 14.

On appeal, Appellant contests the trial court’s refusal to allow his 

character witnesses to testify at the reconsideration hearing, as well as the 

trial court’s indication that the summary appeal process is “trial by ambush.” 

Appellant’s brief at 16. No relief is due.

Regarding the trial court’s refusal to allow Appellant’s character 

witnesses to testify, we see nothing to indicate that these were new witnesses 

other than the ones who were available, but not called by counsel, at 

Appellant’s trial. Nor did he point to any type of new evidence that was 

discovered after his trial, that could not have been obtained earlier, and that 

would likely result in a different verdict if a new trial were granted. 

Accordingly, Appellant has not shown that the trial court erred in refusing to 

award a new trial. See, e.g., Commonwealth v. Padillas, 997 A.2d 356, 

363-64 (Pa.Super. 2010) (explaining the requirements for a new trial to be 

awarded based upon after-discovered evidence). 

Nor has Appellant shown that a new trial was warranted due to a 

discovery violation. Pretrial discovery is governed by Pa.R.Crim.P. 573, which 

requires mandatory disclosures by the Commonwealth in “all court cases.” 
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Pa.R.Crim.P. 573(B)(1).4 Summary cases are not “court cases” for purposes 

of the discovery rule. See Pa.R.Crim.P. 573, Comment; Pa.R.Crim.P. 103. 

Hence, Appellant had no rule-based right to any disclosures from the 

Commonwealth unless they were mandated by Brady v. Maryland, 373 U.S. 

83 (1963). Commonwealth v. Lutes, 793 A.2d 949, 960 (Pa.Super. 2002) 

(“Since summary cases are not ‘court cases,’ pretrial discovery does not apply 

to Appellants unless Brady or its progeny require otherwise.”). 

Brady and its progeny dictate that, when the failure of the 

prosecution to produce material evidence favorable to the accused 

raises a reasonable probability that the result of the trial would 

have been different if the evidence had been produced, due 

process has been violated and a new trial is warranted.

Commonwealth v. Blakeney, 108 A.3d 739, 772 (Pa. 2014). 

A defendant must prove a Brady claim to obtain relief. Id. It is 

insufficient for a defendant to rely upon speculation as to the existence or 

content of undisclosed witness reports. Id. (“The argument that common 

sense and logic prove the existence of wholly hypothetical reports is 

unavailing[.]”). 

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4 Rule 573 “implements the overall policy of the discovery rules aimed at 

preventing ‘trial by ambush[.]’” Commonwealth v. Hanford, 937 A.2d 

1094, 1100 (Pa.Super. 2007). Because the discovery rules do not apply to 

summary proceedings, the trial court accurately informed Appellant that “in a 

summary appeal, it’s a trial by ambush.” N.T. Reconsideration, 8/9/16, at 9. 

While members of the bar are familiar with this terminology, Appellant 

apparently is not, expressing astonishment “that a member of the bench in 

any jurisdiction would make such a statement[.]” Appellant’s brief at 16. 

Nonetheless, it is an accurate statement of the law in lay terms. 
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Here, Appellant has nothing beyond arguments appealing to logic to 

establish that the Commonwealth had evidence that was favorable to him. 

See, e.g., Appellant’s brief at 9 (“Does it not strain credulity that in a 

circumstance as described by the complainant, that the police officer would 

not have spoken to the ‘person in charge of the store’ or to one of the 

managers or to at least another employee to corroborate the incident?”). As 

such, Appellant has failed to prove a Brady violation. 

This Court is an error-correcting court. Commonwealth v. Wood, 833 

A.2d 740, 748 (Pa.Super. 2003). Appellant has failed to establish that the 

trial court committed any errors. Therefore, as steadfastly as Appellant 

argues that he is innocent of disorderly conduct, he is entitled to no relief from 

this Court.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/15/2018