J-S15031-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN EMERY CYRAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1459 WDA 2019

Appeal from the Judgment of Sentence Entered May 22, 2019

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

No(s): CP-53-CR-0000160-2017

BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 3, 2020

Appellant, John Emery Cyran, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Potter County after a jury found him 

guilty of Disorderly Conduct (M3) and Summary Harassment. Receiving an 

aggregate sentence of 9 to 12 months’ incarceration and a fine of $150.00, 

Appellant raises three issues for our consideration. Specifically, he contends 

his conviction for disorderly conduct was against the weight of the evidence, 

he challenges the sentencing order to the extent it erroneously includes the 

crime of misdemeanor Domestic Violence,1 and he claims the court abused its 

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* Former Justice specially assigned to the Superior Court.

1

 Agreeing that an apparent scrivener’s mistake caused the inclusion of the 

Domestic Violence offense, both the trial court and the Commonwealth join 

Appellant in his request that this Court remand for modification of the 

sentencing order in this regard. As the record supports the trial court’s opinion

and the parties’ position on this issue, we remand the matter as requested.
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sentencing discretion when it imposed an aggravated range sentence for 

Disorderly Conduct. Judgment of sentence is affirmed, but we remand to allow 

modification of the sentencing order as indicated. 

The trial court sets forth the pertinent facts and procedural history as 

follows:

By way of history, the Commonwealth charged Appellant with 27 

counts of Possession of a Firearm Prohibited, 18 Pa.C.S.A. § 6105 

(a)(1), inter alia, after an investigation surrounding an altercation 

Appellant had with the purported victim John Howard. The 27 

counts were dismissed by the court on April 5, 2018, after a 

hearing on Appellant’s Omnibus Pre-Trial Motion. The court found 

that Appellant’s New York conviction for Tampering with a Witness 

was not an equivalent offense to Pennsylvania’s crime of 

Intimidation of a Witness, which would prohibit Appellant from 

owning firearms. That matter was appealed by the 

Commonwealth to the Superior Court and the trial court was 

affirmed on February 1, 2019.

Subsequently, the matter was scheduled for a jury trial on April 

15 and 16, 2019. Appellant faced the remaining charges of 

Terrorist Threats (M1), Simple Assault (M2), Recklessly 

Endangering (M2), Disorderly Conduct (M3), and Harassment (S).

At trial, the victim, Josh Howard testified that from May of 2017 

through July of 2017, he was staying at his friend’s camp and was 

given the task of cleaning the camp and removing some items left 

there by Mr. Howard’s deceased uncle. N.T., 4/15/19 (Trial), at 

1. 

Mr. Howard testified that prior to the incident in question, Mr. 

Cyran [Appellant] had purchased a truck from Mr. Howard’s 

mother and refused to return her license plate. Mr. Howard took 

it upon himself to remove the plate from Appellant’s truck one 

week before July 4, 2017. This resulted in an argument between 

Appellant and Mr. Howard.

Mr. Howard testified that on July 4, 2017, he was mowing the lawn 

at the camp near the end of the driveway and adjacent to the 
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township road where Appellant approached in his pickup truck. 

N.T. at 5. Mr. Howard moved to the edge of the road. N.T. at 5. 

Mr. Howard estimated the time to be approximately 3:00 p.m. to 

4:00 p.m. N.T. at 5, 6. 

According to Mr. Howard, Appellant pulled into the driveway and 

rolled down his truck window and pointed a firearm at Mr. Howard 

and advised Mr. Howard, “If [you] knew what was good for [you, 

you] would mind [your] own business and shut [your] mouth.” 

N.T. at 5. Mr. Howard testified that Appellant then drove up the 

driveway to the camp to pick up some items the owner of the 

camp had given to Appellant and upon his return down the 

driveway, he slowed his truck and again pointed the firearm at Mr. 

Howard advising Mr. Howard to “sleep with one eye open.” N.T. 

at 7.

According to Mr. Howard, Appellant then left the property but later 

returned that evening as it was getting dark outside. Mr. Howard 

testified that this time when Appellant returned, his speech was 

slurred, and he was having difficulty holding the firearm which he 

again pointed at Mr. Howard. Mr. Howard advised Appellant that 

he was tired of being threatened and that if Appellant intended to 

do something to him then Appellant should do so. N.T. at 9.

Mr. Howard testified that Appellant then came out of his vehicle 

with an aluminum baseball bat, stumbled and fell to the ground. 

[Mr. Howard] testified Appellant advised “he was going to teach 

me once and for all to keep my mouth shut.” N.T. at 10. 

Thereafter, Mr. Howard entered his own vehicle and drove to the 

cabin leaving Appellant at the end of the driveway. N.T. at 9-10. 

Thereafter, Mr. Howard contacted the police and the matter was 

investigated by Trooper Sebastian who interviewed Mr. Howard 

and Appellant and filed the charges against Appellant.

Trooper Sebastian testified that he interviewed Appellant[, who] 

denied threatening Mr. Howard. Appellant did acknowledge that 

he keeps a baseball bat in each of his vehicles including the truck 

he was operating on the day in question. Appellant claims that 

the bat which had been in the truck he was using on July 4, 2017, 

was given to a friend a few days ago but was unwilling to disclose 

to Trooper Sebastian the man’s identity. N.T. at 35.

The Defense called Jessie Outman who testified that he was 

working with Appellant until approximately 4:00 p.m. on July 4, 
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2017. N.T. at 56. Mr. Outman testified that he never observed 

Appellant in possession of a firearm that day. N.T. at 56. Further, 

Mr. Outman testified that he was on Mr. Cryan’s property on the 

day in question and did not see any firearms. N.T. at 57. After 

the testimony of Mr. Outman, the Commonwealth called Trooper 

Sebastian on rebuttal who testified that twenty-seven firearms

were found on the property including one each in two vehicles of 

Appellant[‘s]. N.T. at 61. The Defense objected to that reference 

as it could [be] inferred that Appellant was tampering with 

evidence. N.T. at 85-86.

After the jury deliberated, [it] reached a verdict and found 

Appellant not guilty of Terrorist Threats (M1), Simple Assault 

(M2), and Recklessly Endangering (M2), but guilty of Disorderly 

Conduct (M3). As to the summary offense of Harassment, the 

court found Appellant guilty.

At the time of sentencing, the court [indicated it] carefully 

considered Appellant’s prior record score, the lack of remorse and 

accountability including his reference to the probation officer 

completing the Pre-Sentence Investigation that he was “Railroads 

again.” At sentencing, Appellant’s only remark was “It did not 

happen.” N.T., 5/15/19(Sentencing), at 6, 9-10.

The court also considered the impact on the victim and the 

community [caused by] the brandishing of a firearm, pointing it 

at his victim and the threats and affirmative steps to use the bat 

to intimidate or strike Mr. Howard. The court also believed that 

the rehabilitative needs of Appellant justified the sentence 

imposed. N.T. at 9-10. [After the denial of Appellant’s post-trial 

motions, this timely appeal followed].

Trial court opinion, 8/21/19, at 1-5.

Appellant raises the following issues for our consideration:

1. Did the trial court err by indicating on its sentencing order 

that [Appellant] was convicted of a misdemeanor crime of 

domestic violence?

2. Did the trial court abuse its discretion by denying 

[Appellant’s] post-sentence motion to set aside verdict and/or 

judgment of acquittal due to the fact the jury’s verdict was against 

the weight of the evidence?
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3. Did the trial court abuse its discretion by sentencing 

[Appellant] in the aggravated range of the sentencing guidelines 

without placing any, let alone sufficient, reasons on the record at

the time of sentencing?

Appellant’s brief, at 2. 

Having resolved Appellant’s first issue in his favor, see footnote one, we 

address his remaining two issues. In his second issue, Appellant argues the 

trial court erred in denying his post-trial motion for a new trial because the 

weight of the evidence showed his alleged interactions with the victim did not 

constitute disorderly conduct as that crime is defined by the General 

Assembly. We disagree.

We do not review challenges to the weight of the evidence de novo on 

appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009). 

Rather, we only review the court's exercise of its discretionary judgment 

regarding the weight of the evidence presented at trial. See id. “[W]e may 

only reverse the lower court's verdict if it is so contrary to the evidence as to 

shock one's sense of justice.” Commonwealth v. Champney, 832 A.2d 403, 

408 (Pa. 2003) (citations omitted). A verdict is said to be contrary to the 

evidence such that it shocks one's sense of justice when “the figure of Justice 

totters on her pedestal,” or when “the jury's verdict, at the time of its 

rendition, causes the trial judge to lose his breath, temporarily, and causes 

him to almost fall from the bench, then it is truly shocking to the judicial 

conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super. 

2004) (citations omitted).
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Section 5503 of the Crimes Code, Disorderly Conduct, provides, in 

relevant part: 

(a) Offense defined.—A person is guilty of disorderly conduct 

if, with the intent to cause public inconvenience, annoyance 

or alarm, or recklessly creating a risk thereof, he;

...

(4) creates a hazardous or physically offensive condition by 

any act which serves no legitimate purpose of the actor.

(b) Grading.—An offense under this section is a misdemeanor 

of the third degree 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. Otherwise disorderly conduct is a summary offense.

(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

By the victim’s own testimony, Appellant argues, the three interactions 

between the two men took place in the driveway to a private camp, and not 

in a public place as required by the statute. The Commonwealth agrees the 

three interactions occurred on private property, but the undisputed evidence 

at trial established that at least one interaction in particular occurred at the 

end of the private driveway where it meets Butler Creek Road, which is a 

township road. N.T. 4/15/19, at 5. Specifically, the victim testified Appellant 
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came driving down the township road pointing a gun and yelling obscenities 

before parking nearby, and then approaching him with a baseball bat. N.T. at 

5-6. Because Appellant committed these acts either on, alongside, or very 

close to the township road, the Commonwealth contends, he recklessly 

created a risk of public inconvenience, annoyance, or alarm in contravention 

of the statute. 

In support of this position, the Commonwealth relies on 

Commonwealth v. O’Brien, 939 A.2d 912 (Pa.Super. 2007). In O’Brien, 

the victim was driving near his home on a private road in Lake Ariel, 

Pennsylvania, looking for his dog. The private road provided access to the 

community's residents and their invitees. O’Brien “approached the victim, 

used profane language, reached through an open window in the victim's 

vehicle, removed the victim's gloves from the dashboard and then used then 

to slap the victim.” Id. at 913. O’Brien subsequently was issued citations for 

harassment and disorderly conduct, for which he was subsequently found 

guilty.

On appeal, O’Brien challenged the sufficiency of the evidence supporting 

his disorderly conduct conviction where, he claimed, his acts did not occur in 

a public place or cause public inconvenience, annoyance or alarm and where 

there was no evidence that he intended to cause or recklessly created a risk 

thereof. We disagreed, finding “ample evidence to sustain the conviction” 

where the setting at issue, though nominally a private road, “‘clearly 

constitutes a place to which the public or a substantial group,’ namely the 
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surrounding community's residents and their invitees, have access.” Id. at 

914 (internal quotations and citation omitted).

Likewise, in the case sub judice, the victim testified that Appellant 

engaged in threatening conduct, some of which included aiming a firearm at 

the victim, while either on or adjacent to a township road to which the publicat-large had open access. Accordingly, consistent with controlling precedent, 

we discern nothing shocking with the trial court’s judgment that the weight of 

the evidence supported the jury’s determination that the setting in question 

was “public” for purposes of the disorderly conduct statute.

In Appellant’s his final claim, he challenges the discretionary aspects of 

his sentence. “It is well-settled that, with regard to the discretionary aspects 

of sentencing, there is no automatic right to appeal.” Commonwealth v. 

Mastromino, 2 A.3d 581, 585 (Pa. Super. 2010). As such, an appellant 

challenging the discretionary aspects of his sentence must invoke this Court's 

jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether the 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, see 

Pa.R.Crim.P. [720]; (3) whether the appellant's brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate under 

the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

* * *

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. A substantial question 

exists only when the appellant advances a colorable argument 

that the sentencing judge's actions were either: (1) inconsistent 
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with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation 

marks and some citations omitted).

Here, Appellant filed a timely Notice of Appeal, presented his claim in a 

post-trial motion for reconsideration of sentence, and included a Rule 2119(f) 

Statement in his appellate brief. Moreover, Appellant’s assertion that the trial 

court's imposition of an aggravated range sentence without stating sufficient 

supporting reasons on the record raises a substantial question. See 

Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (concluding 

a claim that “the lower court failed to state on the record adequate reasons 

for imposing sentences in the aggravated range” raises a substantial 

question). Accordingly, we will review Appellant’s claim on its merits.

Our standard of review for challenges to discretionary aspects of 

sentencing is well settled:

[s]entencing is vested in the discretion of the trial court, and will 

not be disturbed absent a manifest abuse of that discretion. An 

abuse of discretion involves a sentence which was manifestly 

unreasonable, or which resulted from partiality, prejudice, bias or 

ill will. It is more than just an error in judgment.

Commonwealth v. Downing, 990 A.2d 788, 792–93 (Pa. Super. 2010) 

(citation omitted).

Pursuant to Section 9721(b), “the court shall follow the general principle 

that the sentence imposed should call for confinement that is consistent with 

the protection of the public, the gravity of the offense as it relates to the 
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impact on the life of the victim and on the community, and the rehabilitative 

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as 

part of the record, and disclose in open court at the time of sentencing, a 

statement of the reason or reasons for the sentence imposed.” Id 

Nevertheless, “[a] sentencing court need not undertake a lengthy 

discourse for its reasons for imposing a sentence or specifically reference the 

statute in question....” Commonwealth v. Crump, 995 A.2d 1280, 1283 

(Pa.Super. 2010). Rather, the record as a whole must reflect the sentencing 

court's consideration of the facts of the case and the defendant's character. 

Id. “In particular, the court should refer to the defendant's prior criminal 

record, his age, personal characteristics and his potential for rehabilitation.” 

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002).

Instantly, the record belies Appellant's contentions that the court failed 

to consider and weigh relevant information regarding Appellant’s character, 

mitigating factors, and rehabilitative needs. Specifically, the court indicated 

it was struck by Appellant’s lack of remorse—reflected in Appellant’s 

accusation that his probation officer was “railroad[ing] him again,” and his 

truncated allocution in which he said only “It did not happen.” Further 

influencing the court’s selection of an aggravating guideline range sentence 

was the impact on the victim effected by Appellant’s use of a firearm, which 

represented an aggravating factor not contemplated within the elements of 

the disorderly conduct charge. Finally, the court noted it considered that an 
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aggravated range sentence would best serve Appellant’s rehabilitative needs. 

N.T., 5/15/19, at 9-10.

As we find the court’s reasons sufficient to support an aggravated 

guideline range sentence, we accept the sentence imposed. Accordingly, 

Appellant is not entitled to relief on his discretionary aspects of sentencing 

claim.

Judgment of sentence affirmed. Remand to allow modification of 

sentencing order consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/3/2020