J-S35033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LISA A. KOZERO,

Appellant No. 3592 EDA 2014

Appeal from the Judgment of Sentence November 18, 2014

in the Court of Common Pleas of Carbon County

Criminal Division at No.: CP-13-CR-0001038-2013

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 08, 2015

Appellant, Lisa A. Kozero, appeals from the judgment of sentence 

imposed on November 18, 2014, following her jury conviction of disorderly 

conduct.1 On appeal, Appellant claims that the evidence was insufficient to 

sustain her conviction and that the disorderly conduct statute is 

unconstitutional as applied to her. We affirm the judgment of sentence.

We take the underlying facts and procedural history in this matter 

from the trial court’s February 11, 2015 opinion.

On October 17, 2013, [Appellant’s] son, Joseph Kozero 

(hereinafter “Joseph”), walked to the Lehighton Borough Police 

Station (hereinafter the “police station”) to report that 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 5503(a)(4).
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[Appellant] was missing after she failed to come home for 

several days, answer her cell phone or call Joseph or any other 

family members since October 15th. Upon arriving at the police 

station, Joseph provided Officer Matthew Arner with a written 

statement relative to [Appellant’s] disappearance. Officer Arner 

attempted to contact [Appellant] via her cell phone. He was not 

successful as the call went straight to [Appellant’s] voicemail. 

Approximately fifteen (15) to twenty (20) minutes after Joseph’s 

arrival, [Appellant] telephoned the police station. Officer Arner 

took the call and [Appellant] relayed to him that she would “be 

right there.” Within five (5) minutes of speaking with Officer 

Arner, [Appellant] arrived at the police station in an extremely 

agitated state. Officer Arner attempted to explain to [Appellant] 

why he requested that she come to the police station, at which 

point she began yelling at Joseph. Officer Arner ushered 

[Appellant] into the police station’s interview room. She then 

became boisterous and confrontational. At that time, Officer 

Arner, Detective Scott Prebosnyak, and Joseph were inside the 

interview room with [Appellant].

[Appellant] subsequently attempted to leave the interview 

room and was advised by Officer Arner and Detective 

Prebosnyak that she was not free to go as there were two 

outstanding warrants for her arrest.[2] As [Appellant] 

attempted to leave the interview room, Officer Arner grabbed 

her arm and elbow, at which point [Appellant] began tucking her 

arms at her sides. While being restrained, [Appellant] was 

screaming profanities at the officers. Officer Neil Ebbert, who 

was in the patrol room, which is situated in the police station 

twenty (20) to twenty-five (25) feet from the interview room and 

behind two closed doors, went to assist Officer Arner and 

Detective Prebosnyak upon hearing [Appellant] screaming and 

yelling. Officer Ebbert entered the interview room and observed 

Officer Arner and Detective Prebosnyak attempting to restrain 

[Appellant]. The officers placed [Appellant] against the 

interview table, during which time she continued to struggle and 

flail her arms. At least nine (9) times, the officers instructed 

[Appellant] to stop resisting and informed her that she was 

under arrest. However, [Appellant] refused to comply with the 

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2 At trial, the parties stipulated to the validity of the outstanding bench 

warrants. (See N.T. Trial, 9/11/14, at 52).
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officers’ orders. The officers were required to use substantial 

force to place [Appellant] under arrest. Officers Arner and 

Ebbert were attempting to pull [Appellant’s] arms out from 

under her while Detective Prebosnyak was behind [Appellant] 

trying to prevent her from getting up. Moreover, even after 

[Appellant] was in handcuffs and instructed to keep her voice 

down, she continued yelling. [Appellant] was then placed in a 

holding cell. 

As a result of her actions on October 17, 2013, [Appellant] 

was charged with one count of resisting arrest and one count of

disorderly conduct. On September 12, 2014, following a twoday jury trial, [Appellant] was found not guilty of resisting arrest 

and guilty of disorderly conduct. On November 18, 2014, 

[Appellant] was sentenced to a term of imprisonment in the 

Carbon County Correctional Facility for a period of not less than 

seven (7) days nor more than one (1) year. [Appellant] was 

given a credit of seven (7) days time served against her 

sentence and was immediately paroled.

(Trial Court Opinion, 2/11/15, at 1-4) (footnotes and record citations 

omitted).

On December 17, 2014, Appellant filed the instant, timely appeal. On 

December 18, 2014, the trial court ordered Appellant to file a concise 

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

Appellant filed a timely Rule 1925(b) statement on January 2, 2015; on 

February 11, 2015, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review:

I. Whether the evidence was sufficient to support 

[Appellant’s] conviction for [d]isorderly conduct under 18 

Pa.C.S.A. § 5503(a)(4) when [Appellant’s] conduct did not 

create a hazardous condition?

II. Whether the [d]isorderly conduct statute, 18 Pa.C.S.A. § 

5503(a)(4), was unconstitutional as applied to [Appellant] 
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as it criminalized speech that was protected by the First 

Amendment of the United States Constitution?

(Appellant’s Brief, at 4).

In her first issue, Appellant claims that the evidence was insufficient to 

sustain her conviction for disorderly conduct because her actions did not 

create a hazardous condition because “there [were] three officers at the 

scene [who were] able to quickly get the situation under control to prevent 

any injury.” (Appellant’s Brief, at 9). 

Our standard of review for sufficiency of the evidence claims is well 

settled:

We must determine whether the evidence admitted at trial, 

and all reasonable inferences drawn therefrom, when viewed 

in a light most favorable to the Commonwealth as verdict 

winner, support the conviction beyond a reasonable doubt. 

Where there is sufficient evidence to enable the trier of fact to 

find every element of the crime has been established beyond a 

reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every 

possibility of innocence and the fact-finder is free to believe all, 

part, or none of the evidence presented. It is not within the 

province of this Court to re-weigh the evidence and substitute 

our judgment for that of the fact-finder. The Commonwealth’s 

burden may be met by wholly circumstantial evidence and any 

doubt about the defendant’s guilt is to be resolved by the fact 

finder unless the evidence is so weak and inconclusive that, as a 

matter of law, no probability of fact can be drawn from the 

combined circumstances.

 

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations 

omitted) (emphasis added).
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“A person is guilty of disorderly conduct if, with intent to cause public 

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, 

[s]he . . . creates a hazardous or physically offensive condition by any act 

which serves no legitimate purpose of the actor.” 18 Pa.C.S.A. § 

5503(a)(4). Appellant only challenges the sufficiency of the evidence as to 

the final element: whether she created a hazardous or physically offensive 

condition. (See Appellant’s Brief, at 9-14). 

Our Court has defined a hazardous condition as one that involves 

“danger [or] risk.” Commonwealth v. Roth, 531 A.2d 1133, 1137 (Pa.

Super. 1987), appeal denied, 541 A.2d 1137 (Pa. 1988) (citations omitted). 

We have stated that, “[t]he dangers and risks against which the disorderly 

conduct statute are directed are the possibility of injuries resulting from 

public disorders.” Commonwealth v. Williams, 574 A.2d 1161, 1164 (Pa. 

Super. 1990). Lastly, we have noted that “[t]he reckless creation of a risk 

of public alarm, annoyance or inconvenience is as criminal as actually 

causing such sentiments.” Commonwealth v. Reynolds, 835 A.2d 720, 

731 (Pa. Super. 2003) (citation omitted).

Herein, Appellant arrived at the Lehighton Borough Police Station, 

which was open to the public from 8:30 a.m. through 4:30 p.m., during 

normal business hours. (See N.T. Trial, 9/11/14, at 39-40, 45-46, 59). 

Police Officer Arner testified that after he explained to Appellant why she 

was there and took her to the interview room where her son was waiting she 
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started yelling and became “agitated . . . loud . . . boisterous . . . [and] 

confrontational.” (Id. at 45, see id. at 44). Appellant was screaming so 

loudly that Officer Ebbert heard her at a distance of twenty to twenty-five 

feet away and behind two closed doors. (See id. at 131). Although advised 

by the police that she could not leave because of two outstanding warrants, 

Appellant ignored them and attempted to leave. (See id. at 96-97). As the 

officers attempted to place Appellant under arrest, she actively resisted 

them by flailing her arms and legs, and placing her arms under her so that 

the police could not put them behind her back to handcuff her. (See id. at 

53-56, 73-76, 134-35). Officers issued at least nine warning to Appellant to 

stop resisting. (See id. at 55, 75). It took three police officers to subdue 

her. (See id. at 142-43). Officer Arner testified that they could not use 

pepper spray or a taser to subdue Appellant because doing so in such a 

small room would have subjected Appellant’s older son, the officers, and 

Appellant’s younger son and his girlfriend, who were seated in the hallway 

outside the interview room, to a greater risk of harm. (See id. at 57-59). 

In Commonwealth v. Lopata, 754 A.2d 685 (Pa. Super. 2000), the 

appellant, a high school student, became involved in an altercation with 

another student in the cafeteria. See Lopata, supra at 687. A teacher 

intervened and asked both students to go into the hall with him. See id. 

The appellant refused, swung his arms around knocking over a chair, and 

swore at the teacher, causing other students to back away from the area. 
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See id. On appeal, the appellant argued that this conduct was insufficient 

to sustain a conviction for disorderly conduct. See id. at 688. This Court 

disagreed, stating that “there was ample evidence to find that Appellant . . . 

created a condition that was hazardous or physically offensive to the other 

students in the cafeteria.” Id. 

In Commonwealth v. Love, 896 A.2d 1276 (Pa. Super. 2006), 

appeal denied, 940 A.2d 363 (Pa. 2007), the appellant was a witness for the 

respondent, his stepson, in a Protection from Abuse (PFA) hearing. See 

Love, supra at 1279. After the trial court issued the PFA order, the 

appellant and his wife became “vocally agitated, angry, loud, and 

disruptive.” Id. The deputy sheriffs assigned to the courtroom issued 

several instructions to the appellant and his wife to be quiet and return to 

their seats; the couple ignored the instructions. See id. When a deputy 

sheriff approached the wife, the appellant intervened, placing an arm on the 

sheriff’s chest. See id. The sheriff removed the appellant from the 

courtroom, and when the appellant observed other deputies escorting his 

wife from the courtroom, he resumed yelling and the deputy sheriff had to 

restrain him. See id. 

On appeal, the appellant argued that the evidence was insufficient to 

sustain his conviction for disorderly conduct because his behavior did not 

create a hazardous or physically offensive condition. See id. at 1280, 1286. 

We disagreed, holding that “[i]nherent in the act of physically attempting to 
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impede a law enforcement officer from carrying out his or her official duties 

in the public arena is the risk of creating a condition hazardous or physically 

offensive in nature.” Id. at 1286. 

Appellant acknowledges that the holdings in Lopata and Love imply 

that the evidence in the instant matter is sufficient to demonstrate that 

Appellant created a hazardous or physically offensive condition. (See 

Appellant’s Brief, at 11-12). Nonetheless, Appellant attempts to distinguish 

both by arguing that, in the instant matter, the officers had control over the 

situation while in Lopata a single teacher was trying to control two students 

in a crowded cafeteria and, while acknowledging that several deputies were 

present in Love, claims that they had to contend with two offenders and a 

crowded courtroom. (See Appellant’s Brief, at 12-13). However, Appellant 

points to nothing in either case that would support this theory. 

Here, Appellant, while yelling so loudly that she could be heard 

through two doors, actively attempted to prevent the police from arresting 

her, and physically flailing around in a confined space in such a manner that 

she created both a risk to the police officers and to her older son. Thus, 

there is ample evidence to show that Appellant created a hazardous or 

physically offensive condition in a police station that was open to the public. 

Appellant’s claim that the evidence was insufficient to sustain her conviction 

lacks merit. See Love, supra at 1286; Lopata, supra at 688.
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In her second issue, Appellant claims that her conviction was based 

upon her conduct of yelling and cursing at the police and thus was speech 

“protected by the First Amendment because it was directed at police officers 

creating little risk that it would lead to violence.” (Appellant’s Brief, at 14). 

Accordingly, Appellant contends that 18 Pa.C.S.A. § 5503(a)(4) is 

unconstitutional as applied to her.3 (See id. at 15-19). We disagree.

It is long settled that the First Amendment does not bar a conviction 

for disorderly conduct under Pennsylvania Law. See Starzell v. City of 

Philadelphia, Pennsylvania, 533 F.3d 183, 204 (3d. Cir. 2008).4 An 

individual can be found guilty of disorderly conduct, without offending the 

First Amendment, “if in the presence of members of the general public [s]he 

shouts obscenities although the principal intent of the defendant may have 

been to insult the police rather than to cause [p]ublic inconvenience, 

annoyance, or alarm.” Commonwealth v. Hughes, 410 A.2d 1272, 1274 

(Pa. Super. 1979) (citation and internal quotation marks omitted). “[I]t is 

well-settled in our Commonwealth that one may be convicted of disorderly 

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3 Appellant acknowledges that the disorderly conduct statute is facially 

constitutional. (See Appellant’s Brief, at 15).

4 We note “decisions of the federal district courts . . . are not binding on 

Pennsylvania courts, even when a federal question is involved. 

Nevertheless, these decisions are persuasive authority and helpful in our 

review of the issue presented.” Dietz v. Chase Home Finance, LLC, 41 

A.3d 882, 886 n.3 (Pa. Super. 2012) (citation omitted). 
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conduct for engaging in the activity of shouting profane names and insults at 

police officers on a public street while the officers attempt to carry out their 

lawful duties.” Commonwealth v. Pringle, 450 A.2d 103, 105-06 (Pa. 

Super. 1982). In Commonwealth v. Mastrangelo, 414 A.2d 54 (Pa. 

1980), appeal dismissed, 449 U.S. 894 (1980), the appellant yelled 

obscenities at a meter maid ticketing his car. When the appellant saw the 

meter maid the next day, he again yelled obscenities and followed her until 

she left the area, despite her requests that he desist, and so frightening her 

that she could not patrol the area for a week. See id. at 55-56. Appellant 

argued, in part, that the disorderly conduct statue was unconstitutional as 

applied to him. See id. The Pennsylvania Supreme Court disagreed, 

stating:

It is clear in the instant case that appellant was not 

exercising any constitutionally protected right; rather, in a loud, 

boisterous and disorderly fashion, he hurled epithets at the 

meter maid which we believe fit the . . . definition of fighting 

words. Even under our narrow construction of the disorderly 

conduct statute, we can find no merit in appellant’s argument 

that the statute was invalid as applied to him.

Id. at 58; cf. Commonwealth v. Hock, 728 A.2d 943, 946-47 (Pa. 1999) 

(single epithet uttered in normal tone of voice, while appellant was walking 

away from police office and no bystanders were present did not constitute 

“fighting words” and, thus, evidence insufficient to sustain conviction for 

disorderly conduct). 
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Initially, we note that, unlike in Hughes, Mastrangelo, Pringle, and 

Hock, Appellant was not charged with violations of 18 Pa.C.S.A. §§ 

5503(a)(2) or (3), which prohibit unreasonable noise and obscene language, 

respectively, but solely with creating a hazardous or physically offensive 

condition in violation of 18 Pa.C.S.A. § 5503(a)(4). Thus, the 

Commonwealth did not charge her with an offense that directly targeted her 

speech. Secondly, in arguing that Appellant’s arrest was based on protected 

speech directed against the police, Appellant improperly views the facts in 

the light most favorable to her, not in the light most favorable to the 

Commonwealth. (See Appellant’s Brief, at 18). Thirdly, we are 

unpersuaded by Appellant’s attempt to distinguish Mastrangelo by arguing 

that, because the speech in the instant matter was directed toward the 

police rather than to a meter maid, Mastrangelo is somehow inapplicable. 

(See Appellant’s Brief, at 18 n.4). Lastly, Appellant completely ignores this 

Court’s decision in Roth, supra, whose analysis of the distinction between 

protected First Amendment activity and activity which constitutes disorderly 

conduct, we find persuasive.

In Roth, there was an on-going dispute between a church and a group 

of protestors; the protestors announced their intention of holding a protest 

and dumping scrap metal on church property on Easter Sunday. See Roth, 

supra at 1135-36. On Easter Sunday, the protestors marched in front of 

the church but were told by a church official that they were not welcome on 
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church property. See id. at 1136. When the protestors refused to abide by 

this rule, local police warned them not to come onto church property, 

however, the protestors attempted to do so and the police arrested them. 

See id. On appeal, the appellants challenged their convictions pursuant to 

18 Pa.C.S.A. § 5503(a)(4), in part, on First Amendment grounds. See id. at 

1138. In upholding the conviction, our Court distinguished between those 

activities which were protected by the First Amendment, protesting on public

property, and those which were not. See id. at 1138-39. We stated:

In the case at bar, we agree with Appellants’ assertion that 

the protections of the First Amendment extend not only to the 

statements made by [the] defendants in this case, but to their 

expressive activity as well, including both their procession along 

the sidewalk and their holding of a symbolic offering while 

standing on the public sidewalk in front of the Church. 

Nevertheless, Appellants’ arguments in this respect are awry by 

virtue of the fact that Appellants were not arrested for their 

misuse of the public sidewalks. To the contrary, the public 

sidewalks in front of the Church were appropriate areas on which 

to protest the predicament of the poor and unemployed of the 

Mon Valley. It was only when Appellants maneuvered to enter 

Church property so as to inflict their viewpoint on its 

congregation did Appellants abandon the protection afforded by 

the First Amendment. Likewise, it was at this point the elements 

of disorderly conduct coalesced. On these grounds Appellants’ 

convictions rest. Thus, Appellants’ attempt to categorize their 

arrests as abridgements of their constitutional rights must fail.

Id. (internal quotation marks and record citation omitted).

Likewise, in the instant matter, the police did not arrest Appellant and 

charge her with disorderly conduct for engaging in protected First 

Amendment activity or because of the content of any statements she made 

to police. Rather, while the police were attempting to arrest her on 
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outstanding warrants, she created a disturbance by engaging in aggressive, 

loud, and boisterous behavior, physically flailing about in an attempt to 

prevent the arrest. There is simply no merit to Appellant’s claim that the 

disorderly conduct statute is unconstitutional as applied to her. See 

Mastrangelo, supra at 58; Roth, supra at 1138-39.

Appellant’s issues do not merit relief. Accordingly, we affirm the 

judgment of sentence.

Judgment of sentence affirmed.

Judge Mundy concurs in the result.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2015