J. S12010/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MARIA BURNS, : No. 3499 EDA 2012

:

 Appellant :

Appeal from the Judgment of Sentence, November 14, 2012,

in the Court of Common Pleas of Northampton County

Criminal Division at No. CP-48-SA-0000228-2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND JENKINS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 03, 2014

Appellant, Maria Burns, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Northampton County following her 

conviction for disorderly conduct. We affim.1

Appellant was charged by the Moore Township Police Department with 

two separate incidents of disorderly conduct; the first incident occurred on 

June 13, 2012, at the Moore Township recreational park. According to the 

testimony of Sydney Wright (“Wright”), age 14, she and appellant’s son, 

Anthony, and another boy, Brandon Green, were riding their bicycles on the 

trails. (Notes of testimony, 11/14/12 at 4-5.) Wright received a call on her 

 

1 On April 8, 2014, in a memorandum decision, we remanded this case to 

the trial court for appellant’s court-appointed counsel to file a 

Pa.R.A.P. 1925(b) statement and the trial court to prepare and file its 

Pa.R.A.P. 1925(a) opinion. The case is now ready for our review. 
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cell phone from Brandon’s mother, Dana Green, asking the group to come 

back to the park. (Id. at 5.) Upon their return, Wright testified that 

appellant was there and “everything was normal.” (Id. at 6.) Appellant 

went back to her house to get Anthony a pair of shoes and Gatorade. (Id.) 

When appellant returned a half-hour later, Wright said appellant was acting 

“differently” and “mumbling under her breath.” (Id.) Wright was playing 

with Dana Green’s two-year-old son when appellant, standing three feet 

away from Wright, started talking about how she thought Wright was a 

foreign exchange student from Germany. (Id. at 6-7.) Wright testified she 

did not understand what appellant was saying because “it didn’t make much 

sense to me” and then appellant “called us the N word and white trash.” 

(Id. at 7.) When asked how she felt when appellant approached her, Wright 

said, “I felt intimidated and just nervous.” (Id. at 9.) When asked how 

many times appellant used the “N word,” Wright answered, “I only heard it 

once.” (Id. at 11.) When asked if appellant referred to only Wright as white 

trash, Wright responded, “I don’t know if it was meant for me, but she said 

it to the group of us.” (Id.) Dana Green also testified that appellant used 

the “N word” one time. (Id. at 18.) The police were called and appellant 

was issued a citation for disorderly conduct, 18 Pa.C.S.A. § 5503(a)(1), (2), 

(3) & (4) at Citation No. P 8605386-6.2 

 

2 We note that the citation lists “sub. sec. A(1), (2), (4)” on one line. 

Directly above, under Crimes Code Title 18, “(A3)” is listed. The original 

citation is attached to Document # 2 in the certified record.
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The second incident occurred on July 10, 2012. Colleen Greene, 

(“Greene”), testified that appellant’s house is next door to her house, and 

there are about 100 feet between the properties. (Notes of testimony, 

11/14/12 at 28.) According to Greene, she had just returned to her home 

after going to lunch and grocery shopping. (Id. at 29) Appellant, while 

standing on her own driveway, started yelling and calling Greene names; 

such as, “you are white trash, you’re mother F-ing white trash, controlling 

jerk.” (Id. at 30.) Greene testified this has happened before; and on this 

particular day, appellant just kept saying, “you’re white trash, you’re white 

trash.” (Id. at 31.) Greene testified no one else was present during this 

incident. (Id. at 34.) She called the police and appellant was cited for 

disorderly conduct, 18 Pa.C.S.A. § 5503(a)(2), (3) & (4) at Citation 

No. P 9256315-5. 

A hearing was held on August 1, 2012, before District Magistrate 

Robert A. Hawke on both citations. The certified record indicates that 

appellant was found guilty of disorderly conduct at both citations and fined 

$339 for each citation for a total of $678. Appellant filed a timely appeal to 

the Court of Common Pleas of Northampton County on August 30, 2012. 

Both summary convictions were consolidated for a non-jury trial de novo

that took place on November 14, 2012.

On November 14th, at the close of testimony, Attorney Paul J. Levy, 

counsel for appellant, made an oral motion for a demurrer regarding the 
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second incident appellant was cited for on July 10, 2012. The trial court 

sustained counsel’s motion. (Notes of testimony, 11/14/12 at 34.) The trial 

court then went on to find appellant guilty in connection with the first 

incident on June 13, 2012. The trial court stated:

The Court will find the defendant, after a 

de novo hearing, guilty of violating section 5503 of 

the Crimes Code, subsections two, three, and 

four. The Court will impose a fine upon her identical 

to that imposed upon her earlier at $339, plus the 

additional costs associated with the Northampton 

County proceedings.

Id. at 35-36 (emphasis added).

A timely appeal to this court followed, and appellant presents the 

following issues for our review:

1. WHETHER THE VERDICT WAS AGAINST THE 

WEIGHT OF THE EVIDENCE?

2. WHETHER THE VERDICT WAS AGAINST THE 

SUFFICIENCY OF THE EVIDENCE?

3. WHETHER THE CONDUCT OF [APPELLANT] 

UNDERLYING THE CRIMINAL CONVICTION 

CONSTITUTED FREE SPEECH PROTECTED BY 

THE FIRST AMENDMENT OF THE UNITED 

STATES CONSTITUTION?

Appellant’s brief at 4.3

Section 5503(a) defines disorderly conduct as follows:

 

3 A fourth issue listed in appellant’s statement of questions involved has 

been abandoned.
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§ 5503. Disorderly conduct

(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;

(2) makes unreasonable noise; 

(3) uses obscene language, or makes 

an obscene gesture; or 

(4) creates a hazardous or physically 

offensive condition by any act 

which serves no legitimate purpose 

of the actor.

18 Pa.C.S.A.§ 5503. Specifically, our supreme court has held that an 

individual may be convicted for 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).

Before proceeding, we must address the unclear nature of exactly 

which sections appellant was charged with and convicted of. The only 

matter before us is the first citation regarding the June 13, 2012 incident. 

The original citation found in the certified record charges appellant with a 

violation of Section 5503(a)(1), (2), (3), and (4). The nature of the offense 

is described as follows:
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Defendant caused public inconvenience annoyance 

and alarm; to wit she began yelling at the victim 

(15 years old) in a loud tone and screaming at other 

children and adults in the rec. center. Defendant’s 

actions had no meaning toward the victim which 

served no legitimate purpose.

Citation No. P 8605386-6, received 6/18/12, District Court 03-3-01 

(attached to Document #2).

As already noted at the conclusion of the November 14, 2012 de novo

trial, the trial court found appellant guilty of Section 5503(a)(2), (3), and 

(4). However, the trial court’s Rule 1925(a) opinion indicates the issues in 

this case concern Subsections (a)(1), (2), and (4). (Trial court opinion, 

7/7/14 at 1, 3.)

By letter dated October 3, 2014, the Commonwealth advised this court 

that it concedes there was insufficient evidence presented at trial to sustain 

appellant’s conviction under Section 5503(a)(3).4 However, the 

Commonwealth notes appellant was convicted under two other sections, 

Sections 5503(a)(2) and (a)(4), and that appellant has not challenged those 

convictions on appeal. We have reviewed appellant’s brief, and the 

Commonwealth is correct that appellant only addresses the evidence as it 

relates to Section 5503(a)(3). Specifically, appellant argues that the trial 

 

4 We agree with the Commonwealth that there was insufficient evidence to 

convict appellant under Section 5503(a)(3). There was no evidence that 

appellant’s words were intended to appeal to anyone’s prurient interest or 

described sexual conduct in a patently offensive way. See Commonwealth 

v. McCoy, 69 A.3d 658, 665 (Pa.Super. 2013), appeal denied, 83 A.3d 

414 (Pa. 2014).
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court confuses the two incident dates since Section 5503(a)(3) was charged 

in the July 10th incident which was dismissed. To the extent that appellant 

argues sufficiency under Section 5503 generally, or as to 

Sections 5503(a)(2) and (4), we find the trial court’s opinion amply supports 

a finding of sufficiency with respect to these two sections, and we affirm on 

that opinion. 

Appellant has filed an application for relief to include copies of both the 

June 13, 2012 and July 10, 2012 citations. Our review indicates the original 

citation regarding the June 13, 2012 incident is already included in the 

certified record. Based on our review and discussion in this Memorandum, 

the supplementation of the record is not necessary. Accordingly, the motion 

is denied.

Judgment of sentence affirmed.

Donohue, J. joins the Memorandum.

Jenkins, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/3/2014
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IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY 

COMMONWEALTH OF PENNSYLVANIA· 

CRIMINAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA 

VS. 

MARIA BURNS, 

Appellant. 

Pa,R.A.P. 1925(.) Stat.",ent 

"-

::..:: 

., 

AND NOW, this L day of July, 2014, the Court issues the following 

statement: 

A. Pxocedural History 

On June 13, 2012, the Appellant, Maria Burns, was issued a non-traffic 

citation at DO. 8605386'6 for disorderly conduct under 18 Po.C.S. §§ 5503(a)(1), (2), 

& (1). The citation charges the Appellant with causing public inconvenience, 

annoyance, and alarm by yelling at the Victim (age 14) in a loud tone and screaming 

at other children and adults in a recreational center. It further alleges that the 

Appellant's actions had no meaning or legitimate purpose. 

0.0. July 9, 2012, the Appellant received a sQcond citation for clisorderly 

conduct at no. 9256315-5. This citation charges the Appellant with causing public 

inconvenience, annoyance, and alarm by yelling and cursing at bel' neighbor 

without justification. 

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The Appellant represontod hersolf ut the summary pmceading before 

Magisterial District Judge Robert Hawke. MDJ Hawke found her guilty of both 

offenses. The Appellan~ then appealed her convictions to the Court of Common 

Pleas, this time with the assistance of counsel, Paul Levy, Esquire . 

The undersigned heard the summary appeal on Nuvember 14, 2012. The 

Court lound the Appellant guilty of disorderly conduct on the June 13, 2012 citation 

but not guilty on the July 9,2012 citation. 

The Appellant filed a timely notice of appeal on December 11, 2012. At this 

point, we incorporate the procedural history from OUI Pa.R.A.P. 1931(b) Statement 

dated June 20, 2013, 

On remand from the Superior Court, we appointed Brian Monahan, EsqUire, 

to represent the Appellant on April 11, 2014. We directed Attorney Monahan to file 

a statement pursuant to Pa.R.A.P. 192Mb). We later granted his request for 

additional time due to the unavailability ofilie trial transcript. 

B. The Appellate Issues 

Attorney Monahan submitted his 1925(b) statement on May 29, 2014,l'aising 

the following issues: 

(1) The verdict was against the weight of the evideoce; 

(2) The verdict was against the sufficiency of the evidence; 

(a) The conduct of Defendant underlying the criminal L'ODvlction constituted 

free speech protected by the First Amendment ofthe Unit.ed States 

Constitution; and 

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(4) The Court erred in allowing testimony to SUPpOl"t Lbe conviction which 

related to a different offense. 

C. DiscuBsion 

We begin our discussion with the Appellant's challenge to the sufficiency of 

the evidence. The test for the sufficiency of the evidence is whether, a~epting as 

true all the evidence, including all reasonable inferences drawn therefrom, the 

evidencc and inferences are sufficient to prove guilt beyond tl reasonable doubt. 1 

The summary offense of "Disorderly Conducf' is governed by 18 Pa.C.S. § 

5503(a), which provides that "A person is guilty of disorderly conduct if, within the 

intent to cause public inconvenience, annoyan(:e or a larm, or reckless creating a risk 

thereof, be: 

(D engages in fighting or threatening, or in violent or tumultuous behavior; 

(2) makes unreasonable noise; 

(3) uses obscene language, Or makes an obscene gesture; or 

(4) creates a hazardous or physically offensive condition by any act which 

serves nO legitimate purpose of the actor. 

At issue in this case are subsections (a)(1), (2), and (4). 

During the hearing, the Commonwealth presented two witnesses in support 

of the June 13,2012 citation. The first witness to testify was the Victim, age 14. 

I See Commonwealth v. Msstrll.nge.io, 414 A.2d 54, 59 (Fa. 1980) 

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The Victim testified that. on June 14, 2012,2 she rode her bike to the Moore 

Township Recreational Park with the Appellant's son and Dana Green's son. The 

trio rode their bikes until Dana Green called the Victim and her son and asked 

them to return. The children complied with this request and returned to the park 

Upon their retul'n, everything was "normal." The Appellant was pI'esent and 

<lstanding around." At some point. however, she left the park to retrieve a pair of 

shoes and a bottle of Gatorade. When the Appellant returned about 30 minutes 

later, she seemed "different." 

The Victim saw her walking back and forth and mumbling under her brea.th . 

Initially. she did not think much of it. However, the Victim became frightened 

when the Appellant approached to within three feet afher and began to accuse her 

of being a foreign exchange student from Germany. 

The Victim, who was not a foreign cxchauge student, did not understand 

what the Appellant was saying. The Appellant insisted that she was. Her voice 

grew progressively louder until she was shouting at the Victim. She warned the 

Victim not to " .. . get her family involved." 

The Appellant called the Victim "N-J-G-G-E-R" and "white trash_" At this 

point, the Appellant's son got upset and rode off into the woods. Dana Green and an 

adult named Sarah gathel'ed the remaining children and retreated to the park's 

! We nol~ the discrepancy between the trial testimony Gud the citlttion daLe. However, this 

teclmicaJity was not raised at trial and i!O uot at issue on appeal. 

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baseball fields. Sarah then calied the police. The Appeliant drove away but was 

stopped by the police. 

The Victim felt intimidated and nervous when the Appellant h ad approached 

her. She believed the Appellant might hit her. The Appellant yelled in an erratic, 

high·pitched tone. She did not threaten any physical violence, however. 

The second witness to testify was Dana Green. She testified that, on June 

13.2012, her oldest son was at the Moore Township recreational center with the 

Appellant's son and the Victim. This had upset the Appellant because she did not 

want her son to "meander" in the woods with a girl. 

Consequently, Dana Green called the Victim and her son and asked them to 

return, which they did. The Appellant and her son then talked for a bit. After that, 

the Appellant left the park to get shoes and a drink. 

The Appellant bad a di!ferent demeanor upon her return. Sbe was agitated 

and OIr ustling around." She was mumbling to herself and moving back and forth. 

Dana Green was in the pavilion with her three'year old child when the 

AppeUant began to speak to the Victim about being in a foreign exchange program. 

This conversation escalated. Neither Dana Green nor the Victim understood what 

the Appellant was saying. 

Dana Green asked the Appellant to stop. 'The Appellant replied that Dana 

Green should not question her. Her voice rose as she exclaimed that the Victim 

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"knew exactly what she was talking about and if she didn't, she would question [the 

Victim's] mother about that." 

The cODversation continued to escalate_ The Appellant cUI'sed at Danll Green 

and calJed her an "N-I'G-G-E-R" and "white trash." Dana Green wanted to get out 

of there_ In her view, the conversation hud escalated to the point where it was no 

longer safe. 

The police were then called. Dana Green moved het children to the other 

side of the park where it was safe. 

The Appellant testified in her defense. She stated that she was not 

remorseful, and felt that she had a right to question the Victim. She believed the 

other adults' behavior on the date in question was indicative of "white trash." The 

Appellant did not like ber children to have a "free for all" running through the 

woods. 

The Appellant acknowledged that she had recently been treated by a 

neurosurgeon for issues with her brain. She bad undergone 18 months of periodic 

CAT scans in an attempt to identify the source of her unexplainable bleeding. The 

Appellant did not assert the defense of mentaL incompetence in this case, however. 

The Court found the Appellant guilty of the June 13. 2012 citation under all 

three subsections. We submit that there was sufficient evidence for this verdict. In 

support, we note the uncontroverted testimony that the Appeilant initiated an 

unprovoked and profanitY'laced confrontation with a 14 year-old girL The intensity 

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of this irrational con.:flict escalatod to wh~re the other udults felt the need to J·cmove 

themselves from the Appellant's vicinity and contact the police. 

The Victim testified that the Appellant had approached to within three feet of 

her with an increasingly hostile barrage of offe nsive language. The Victim feared 

tba t the Appellant might strike her. The Appellant had screamed nonsensical 

ramblings in a high"pitched tone, and re fused to balt her tirade when asked. The 

Appellant's loss of self"control affected everyone around her, including her son. 

We submit thaL this unprovoked display of unremitting hostility toward a 

child is suffiClent to s ustain the Appellant's conviction for disorderly conduct.3 

We tur n now to t he Appellant's challenge to the weight of the evidence. We 

employ the following standard of review: 

A motion for a Dew trial on the ground that the verdJct is contra!)' to the 

weight of the evidence concedes that there is suffic.ient evidence to sustain 

the verdict. Thus, the trial court is und~r no obligation to view the evidence 

in this light most favorable to the verdict winner. An allegation that the 

verdict is against the weight of the evide'nce is addressed to the discretion of 

the trial court, A new trial should not be granted because of a me re conflict 

in the testimony or because the judge on the same facts would have arrived 

at a different conclusion. A trial judge must do more than reassess the 

credibility of the witnesses and allege that he would not have assented to the 

verdict if he were a juraT. Rather, the role of the trial judge is to determine 

that 'notwithstanding all the facts, certain facts are so clearly of greater 

weight that to ignore them or to give them equal weight with all the facts is 

to deny justice.'4 

g See ComltJonwl!slth v. Mastrangelo, 414 A.2d 5'1. (Pa. 1980) 

t Commonwea.Jrh v. Widmer, 744 A.2d 745,751'752 CPa. 2000) (internal citatiON omitted). 

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In our view. there are 00 facts of rocord &.hat compel a new trial. For 

whatever reason, the Appellant appeal'S i.o ha ve undergone a mental or emotional 

shift that caused her to become hostile and abusive. This personality change may 

be attributable to the brain issue for which she received medical treatment. 

However, a brain abnormality (even if proven) would not give the Appellant a 

license to bel'ate others, especialJy children, with impunity. 

Moreover, the Appellant did not raise this defense at tl'laJ. Rather, Attorney 

Levy argued that the Appellant had a "legitimate purpose" for addressing the 

Victim with racial epithets like "white trash" and "N·l·G·G·E-R." We do not agree. 

In our view, no civilized society should condone this type of unprovoked and 

abusive behavior from an adult toward a child. Accordingly, 've submit that the 

verdict was not contrary to the weight ofthe evidence. 

Next, we addre38 the Appellant" contention that her conduct was protected 

by the First Amendment to the United States Constitution. The U.S. Suprerue 

Court has explained the limitations on the right to free speech as follows: 

Allowing the broadest scope to the language and purpose of the Fourteenth 

Amendment, it is well understood that the right of free speech is not absolute 

at all times and under all circumstances. There are certain well'defined and 

narrowly limjtoo. classes of speech, the prevention and punishment of which 

have never been thought to raise any Constitutional problem. These include 

the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' 

words those which by their velj' utterance inJ1ict injury or tend to incite an 

immediate hreach of the peace. It has been weH observed that such 

utterances are no essential part of any exposition of ineas, and are of such 

slight social value as a step to truth that any benefit that may be derived 

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from t.hem is clearly outweighed by the social interest:in order and morality. 

'Resort to epithets or personal abuse is not in any sense proper 

communicatioIl of information or opinion safeguarded by the Constitution, 

and its punishment as a criminal act would raise no question under that 

instrument.s (emphasis added). 

We submit that the AppeUant's speech falls into the unprotected category of 

'fighting words.' In support, we note that neither Dana Green nor the Victim 

understood what the Appellant was saying. Because the Victim was not a foreign 

exchange student, the AppeUant's attempt to interrogate her on this topic was 

meaningless. 

The Appellant peppered her invective with racial epithets and used a hostile 

tone to press her attack. She was not engaged in a meaningful dialogue or symbolic 

speech .. In OUl' view, her speech was devoid of any "social value as a step to truth." 

We therefore submit that her actions are not subject to protection by the First 

Amendment. 

Finally, we address the Appellan~s claim that the Court erred in using 

testimony from a. different offense to support this conviction. The AppelJant is 

referring to the testimony of CoUeen Green, the Appellant's neighbor, offered by the 

Commonwealth in support of the Ju.ly 9, 2012 citation. 

Colleen Green testified that the Appellant had berated her On a daily basis 

for over a year without any apparent cause. 'fhe Appellant alternately referred to 

5 CommonwealtlJ Y. Mas/.rangeio, 414 A.Zd 51, 58 (Pa. 1980) (quoting Chaplinsky Y. N£'w 

HllmpsiJll'l', 315 U.S. 568, 571-572 (]912)). 

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her (and he.r other neighbor) as "F'ing white trash," "controlling jel'k," "whoro." and 

"prostitute," Ultimately, the Court dismissed the July 9, 2012 citation for lack of 

testimony that this behavior had taken place in a public location. 

To start, we Dote the presumption "that a trial court, sitting as fact'finder, 

can and will disregard prejudicial evidence."6 In addition, we submit that there is 

no indication that the Court used Colleen Green's testimony to support its verdict 

on the June 13, 2012 citation. Instead, as set forth above, we believe the evidence 

was sufficient to sustain the Court's guilty verdict independent of Colleen Green's 

testimony. We therefore submit that this final assertion of error is meriiless. 

We respectfully request that the judgment be affirmed in all respects. 

d CommomvelJ./th v . .FellI'S. 86 A.3d 795, 820 (P8.. 2014) Gnt.ernaJ CItation omittedJ. 

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