J-A28035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUDY MCGRATH A/K/A JO ANN 

FONZONE,

Appellant No. 1716 EDA 2014

Appeal from the Judgment of Sentence March 19, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-MD-00000061-2013, MC-51-CR00043169-2010, Nos. CP-51-CR-0008156-2013

BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 01, 2015

Appellant, Judy McGrath a/k/a Jo Ann Fonzone, appeals pro se from 

the judgment of sentence entered following her conviction of disorderly 

conduct. We affirm.

We summarize the history of this case as follows. On October 6, 2010, 

Appellant attended a Philadelphia Phillies playoff game at Citizens Bank Park 

in Philadelphia. During the game, Appellant’s behavior caused a disturbance 

in her seating section. Eventually, a security guard, a supervisor, and 

uniformed police were summoned to deal with Appellant. Appellant was 

subsequently removed from her row, taken to the top of the seating section, 

and told she could remain at the top of the seating section in the handicap 

area if she wanted to remain standing, but that she could not go back to her 
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seat. When Appellant walked away towards her seat, an officer touched

Appellant’s shoulder, and Appellant made a swinging motion at the officer. 

Appellant was handcuffed, taken to the police room and then to a holding 

cell. While she was in the holding cell, Appellant telephoned 911. Appellant 

contended that she suffered injuries from the incident at the hands of the 

police. Appellant has characterized herself as the victim in the incident.

Appellant was charged with the summary offense of disorderly 

conduct. In spite of the fact that she had court-appointed counsel, Appellant 

filed numerous pro se documents with the trial court. Ultimately, on October 

2, 2013, Appellant appeared before the court of common pleas for a de novo

trial. Due to various delays, the trial was completed on March 19, 2014,1

and Appellant was convicted of one count of disorderly conduct. The trial 

court imposed a sentence of credit for time served and a $300.00 suspended 

fine. Appellant then filed this pro se appeal. Appellant filed a ten-page 

____________________________________________

1 As the trial court explained:

Trial was held before this Court on two (2) dates, October

2, 2013 and March 19, 2014. In the interim, there were 

numerous listings of this matter which addressed issues and 

motions raised by [Appellant] herself. Due to procedural 

deficiencies, such as the filing of various motions despite having 

counsel of record or delays due to [Appellant’s] request for 

discovery not relevant to the defense of this case, this matter 

languished through the Court system.

Trial Court Opinion, 1/29/15, at 2-3.
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Pa.R.A.P. 1925(b) statement. The trial court has filed a twenty-seven-page 

1925(a) opinion.

Appellant presents the following issues for our review:

1. WHETHER THERE WAS INSUFFICIENT EVIDENCE FOR THE 

LOWER COURT’S DECISION AND [APPELLANT’S] 

CONSTITUTIONAL RIGHTS WERE VIOLATED THROUGHOUT 

PROSECUTION SINCE OCTOBER 2010 BY PROSECUTORIAL AND 

POLICE MISCONDUCT INCLUDING NEGLIGENT INVESTIGATION 

OF THE INCIDENTS OF OCTOBER 6, 2010[?]

2. WHETHER THE LOWER COURT ERRED WHEN IT DENIED 

[APPELLANT] A SCHEDULED HEARING ON HER CITIZEN 

CRIMINAL COMPLAINT CP-51-MD-61 AS THE INJURED VICTIM[?]

3. WHETHER THE LOWER COURT ERRED WHEN IT DISALLOWED 

[APPELLANT] TO REPRESENT HERSELF AND THEREFORE SHE 

HAD DISLOYAL AND INEFFECTIVE DEFENSE COUNSEL PRIOR TO 

AND WHEN SHE WAS NOT CO-REPRESENTING OR SELFREPRESENT[I]NG[?]

Appellant’s Brief at 2.

As a prefatory matter, we observe that appellate briefs must materially 

conform to the briefing requirements set forth in the Pennsylvania Rules of 

Appellate Procedure. See Pa.R.A.P. Chapter 21. When a party’s brief fails 

to conform to the Rules of Appellate Procedure and the defects are 

substantial, an appellate court may, in its discretion, quash or dismiss the 

appeal pursuant to Pa.R.A.P. 2101. Id.

As we have often stated, “Although this Court is willing to liberally 

construe materials filed by a pro se litigant, pro se status confers no special 

benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d 496, 

498 (Pa. Super. 2005) (citing Commonwealth v. Lyons, 833 A.2d 245, 
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252 (Pa. Super. 2003)). “To the contrary, any person choosing to represent 

himself in a legal proceeding must, to a reasonable extent, assume that his 

lack of expertise and legal training will be his undoing.” Adams, 882 A.2d 

at 498 (citing Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super. 

1996)).

While the defects in Appellant’s brief are numerous and warrant 

dismissal of the appeal, we decline to do so in this instance. Instantly, with 

regard to Appellant’s first issue, we will limit our review to a determination 

of whether the Commonwealth presented sufficient evidence to support 

Appellant’s conviction of disorderly conduct.

When reviewing a challenge to the sufficiency of the evidence, we 

evaluate the record in the light most favorable to the Commonwealth as 

verdict winner, giving the prosecution the benefit of all reasonable inferences 

to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d 

226, 231 (Pa. Super. 2007) (citation omitted). “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.” Id. (quoting Commonwealth v. Brewer, 876 A.2d 

1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not 

establish guilt to a mathematical certainty, and it may sustain its burden by 

means of wholly circumstantial evidence. Id. Moreover, this Court may not 

substitute its judgment for that of the factfinder, and where the record 
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contains support for the convictions, they may not be disturbed. Id. Lastly, 

we note that the finder of fact is free to believe some, all, or none of the 

evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. 

Super. 2006).

The Pennsylvania Crimes Code defines disorderly conduct, 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 recklessly creating a risk thereof, he:

(1) engages in fighting or threatening, or in violent or 

tumultuous behavior;

* * *

(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 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. § 5503 (emphasis added).

Our Supreme Court has held that an individual may be convicted of 

disorderly conduct “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.” Commonwealth v. Fedorek, 946 

A.2d 93, 100 (Pa. 2008). With respect to the element of intent for the crime 

of disorderly conduct, this Court has stated the following:

The mens rea requirement of Section 5503 demands proof that 

appellant by her actions intentionally or recklessly created a risk 
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[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.

Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005) 

(internal citations and quotations omitted). “Intent can be proven by direct 

or circumstantial evidence; it may be inferred from acts or conduct or from 

the attendant circumstances.” Commonwealth v. Faulk, 928 A.2d 1061, 

1070 (Pa. Super. 2007) (citation omitted).

In addition, in Commonwealth v. Young, 535 A.2d 1141 (Pa. Super. 

1988), this Court held that based upon the statutory definition of “public” in 

section 5503(c), a location retains its “public” status even when there are 

limitations on access that deny entry to some members of the general 

public, as long as a “substantial group” of people are permitted access. Id. 

at 1142-1143. In Young, we held that the women’s restroom located in a 

coed college dormitory remained “public” despite obvious restrictions on 

access, since a substantial group (including women residents and their 

female visitors) had access. Id. at 1143. We further noted that while there 

were access restrictions to the dormitory itself, i.e., to nonresidents, these 

were no different than access restrictions to apartment houses, which are 

nevertheless specifically defined in section 5503(c) as “public” for purposes 

of the disorderly conduct statute.
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In addressing the sufficiency of the evidence, the trial court offered the 

following analysis after setting forth large portions of the trial transcript:

In this case, under a totality of the circumstances, the 

evidence was sufficient to establish that [Appellant] intended to 

cause public inconvenience, annoyance or alarm, as required to 

support her conviction for disorderly conduct after having been 

warned by both [a stadium security guard] and a police officer 

that she must sit down when appropriate. Instead, she 

continued her boisterous behavior, used foul language, 

maintained she could do as she wishe[d] in a loud voice, as she 

flailed her arms around, all under the belief that paying for her 

ticket gives her carte blanche to act in any manner which she 

saw fit. [Appellant’s] actions required repeated intervention by 

Phillies’ staff. She inconvenienced the fans behind her by 

standing and also in her aisle, as they had to leave their seats to 

permit [the security guard] access to [Appellant] who told him 

[to] “go fuck himself” and then continued her version of cheering 

until she was removed.

Granted, this action took place at a baseball game where 

cheering, standing, yelling and various noises are to be 

expected, however, it is only appropriate at certain times when 

events occurring during the game warrant the same. [The 

security guard] testified that at the point that he had confronted 

[Appellant], nothing exciting was occurring and the other fans 

around the area were simply seated and were watching the 

game.

[Appellant’s] actions were not appropriate under the 

circumstances at the time and were unreasonable, annoying and 

served no legitimate purpose and which justified her removal by 

refusing to heed the advice of stadium personnel to follow the 

rules in place. Further, despite being requested to cease acting 

in the manner which required her to be approached in the first 

place, she continued to do so. [Appellant’s] own words that she 

“could do whatever she wants” shows that she believed she was 

free to act in any manner she so chose, even if such actions 

were annoying to those around her. Clearly, such is not the case 

in a public venue such as this.

The evidence was clearly sufficient to support the verdict 

as it established each material element of the crime charged and 
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the commission thereof by [Appellant] beyond a reasonable 

doubt. Commonwealth v. Aguado, 760 A.2d 1181, 1185 

(Pa.Super.2000) (“[T]he facts and circumstances established by 

the Commonwealth need not be absolutely incompatible with the 

defendant’s innocence”).

Trial Court Opinion, 1/29/15, at 24-26.

We have thoroughly reviewed the certified record before us on appeal, 

and we agree with the trial court’s determination that the Commonwealth 

presented sufficient evidence to establish that Appellant committed the 

crime of disorderly conduct. Accordingly, Appellant’s contrary claim lacks 

merit.

In her second issue, Appellant argues that her private criminal 

complaint was inappropriately handled by the trial court. Essentially, 

Appellant claims that, as an injured victim, the trial court erred in denying 

her a hearing on her private complaint.

Pennsylvania Rule of Criminal Procedure 506 governs private 

complaints and states, in pertinent part, that an application for a private 

criminal complaint should be submitted to “an attorney for the 

Commonwealth, who shall approve or disapprove it without unreasonable 

delay.” Pa.R.Crim.P. 506(A). If disapproved, “the attorney shall state the 

reasons on the complaint form and return it to the affiant.” Pa.R.Crim.P. 

506(B)(2). Furthermore, if the complaint is disapproved, “the affiant may 

petition the court of common pleas for review of the decision.” Id. 

Likewise, this Court has explained “[i]t is well-settled that, if the 
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Commonwealth disapproves a private criminal complaint, the complainant 

can petition the Court of Common Pleas for review, and the trial court must 

first correctly identify the nature of the reasons given by the district attorney 

for denying the complaint.” In re: Private Criminal Complaint of John 

O’Brien Rafferty, 969 A.2d 578, 581 (Pa. Super. 2009). The trial court’s 

standard of review is dependent upon the reasons provided by the district 

attorney for the disapproval. Commonwealth v. Cooper, 710 A.2d 76, 80 

(Pa. Super. 1998).

Therefore, it is axiomatic that following the denial of a private 

complaint, the affiant must take particular steps to appeal the decision of 

the district attorney’s office in disapproving the private complaint. The 

affiant cannot attempt to challenge the decision of the district attorney’s 

office before the trial court in a separate matter, i.e., criminal proceedings 

filed against the affiant. Consequently, we are left to conclude that the trial 

court did not err in refusing to indulge Appellant’s attempt to review the 

decision of the district attorney regarding her private criminal complaint 

during the proceedings pertaining to the instant criminal charges filed 

against Appellant. Rather, pursuant to the rules of criminal procedure and 

applicable case law, Appellant should have challenged the decision of the 

district attorney in a separate proceeding. Hence, we discern no error on 

the part of the trial court and conclude that Appellant’s issue lacks merit.
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In her final issue, Appellant argues that her previous attorneys were 

somehow ineffective in their representation of Appellant. However, such 

claims cannot be addressed in this direct appeal.

Ineffective assistance of counsel claims are generally deferred to 

collateral review proceedings, with the exception of certain circumstances 

not present in the instant case. See Commonwealth v. Arrington, 86 

A.3d 831, 856-857 (Pa. 2014) (explaining deferral of ineffective assistance 

of counsel claims to collateral proceedings). To be eligible for such relief 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9446, a 

petitioner must be currently serving a sentence of imprisonment, probation, 

or parole. 42 Pa.C.S. § 9543(a)(1)(i). As Appellant is appealing a summary 

conviction, for which she was sentenced to pay a fine, we find that she is not 

eligible for relief under the PCRA.

In Commonwealth v. Straub, 936 A.2d 1081 (Pa. Super. 2007), we 

held that a defendant convicted of a summary offense and not incarcerated 

or placed on probation is not entitled to litigate claims of ineffective 

assistance of counsel on direct appeal even though he may not be eligible for 

PCRA relief. Id. at 1083. The Straub Court stated the following:

In light of the [Commonwealth v.] O’Berg[, 880 A.2d 

597 (Pa. 2005)] majority’s express disapproval of the 

jurisprudential “short sentence” exception to [Commonwealth 

v.] Grant[, 813 A.2d 726 (Pa. 2002)], and particularly in light of 

Justice Castille’s cogent, thoughtful and well-reasoned 

concurring opinion in O’Berg, we conclude that, in the case at 

Bar, Appellant’s claims of ineffective assistance of counsel may 

not be reviewed on direct appeal before this Court.
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Id. at 1083-1084. Consequently, the law does not provide Appellant with an 

avenue to pursue her ineffective assistance of counsel claims. 

Commonwealth v. Reigel, 75 A.3d 1284, 1288-1289 (Pa. Super. 2013).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2015