J-A09037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GARY ALAN MAUZ

Appellant No. 2068 EDA 2014

Appeal from the Judgment of Sentence June 20, 2014

In the Court of Common Pleas of Bucks County

Criminal Division at No: CP-09-SA-0000956-2013

BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015

Appellant, Gary Alan Mauz, appeals from the trial court’s June 20, 

2014 judgment of sentence imposing a $50 fine and court costs. After 

careful review, we vacate the judgment of sentence. 

Police cited Appellant on April 25, 2013 for disorderly conduct (using 

obscene language and creating a hazardous or physically offensive 

condition1) based on an encounter between Appellant and his neighbor, 

Victoria Battistini (“Battistini”) the previous day. The trial court summarized 

the pertinent facts: 

At the de novo trial, [Battistini], testified that on April 24, 

2013, at approximately 10:00 p.m., she was present at her 

home located at 882 Euclid Avenue, Warrington, Bucks County. 

____________________________________________

1

 18 Pa.C.S.A. § 5503(a)(3) and (4). 
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At that time, she was setting up a fire in a fire pit in her 

backyard with her boyfriend and his two brothers. She noticed 

noises on the outside of the fence surrounding her residence 

and, as a result, she walked over to investigate. She relayed 

that her neighbor, [Appellant], was walking over towards his 

residence uttering words that were initially unclear. She 

recalled: 

I couldn’t really understand what exactly he 

was saying, but I know that it was some language ... 

calling me like a whore and stuff. And I kind of–I 

didn’t really know what was going on, and I went to 

... walk over. By the time I got over to the fence, I 

had saw [sic] the figure walking up to the house that 

was my neighbors that live diagonal. Then I 

recognized who it was...

Because of lights on her back porch and a light post by 

[Appellant’s] front door, she was able to clearly view [Appellant] 

initially walking towards his residence, then standing at the front 

door of his residence over her fence, which was diagonal from 

her own residence. [Appellant] repeatedly directed statements 

toward [Battistini] such as [Battistini’s] “fat mom humps [her] 

dog” and “whore.” Furthermore, she stated that the statements 

made her feel “uncomfortable and scared” and this was 

exacerbated by the fact that her mother was on vacation and 

she was home alone. 

Trial Court Opinion, 9/20/14, at 2-3 (record citations omitted). 

Appellant pled guilty to disorderly conduct under § 5503(a)(3) 

(obscene language or gesture) before a Magisterial District Judge on October 

29, 2013. Appellant filed a timely summary appeal on November 26, 2013, 

and the trial court conducted a de novo trial on June 20, 2014. The trial 

court, sitting as finder of fact, found Appellant guilty under § 5503(a)(4) 

(hazardous or physically offensive condition) as a summary offense, and 

imposed sentence as set forth above. This timely appeal followed. 
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Appellant argues the Commonwealth produced insufficient evidence to 

sustain a conviction under § 5503(a)(4). The following standard governs 

our review of a challenge to the sufficiency of the evidence: 

As a general matter, our standard of review of sufficiency

claims requires that we evaluate the record in the light most 

favorable to the verdict winner giving the prosecution the benefit 

of all reasonable inferences to be drawn from the evidence. 

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. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. [T]he facts and circumstances 

established by the Commonwealth need not be absolutely 

incompatible with the defendant’s innocence. 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. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013). 

Section 5503 reads: 

§ 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:

[...]

(4) creates a hazardous or physically offensive condition 

by any act which serves no legitimate purpose of the actor.

[...]

(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.
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18 Pa.C.S.A. § 5503(a)(4), (c). 

“The offense of disorderly conduct is not intended as a catchall for 

every act which annoys or disturbs people; it is not to be used as a dragnet 

for all the irritations which breed in the ferment of a community.” 

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

(quoting Commonwealth v. Hock, 728 A.2d 943, 947 (Pa. 1999)). “It has 

a specific purpose; it has a definite objective, it is intended to preserve the 

public peace.” Id. (emphasis added). Indeed, our courts have repeatedly 

emphasized that the goal of § 5503 is to protect the public. 

Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (“Certainly,

Section 5503 is aimed at protecting the public from certain enumerated 

acts.”); Hock, 728 A.2d at 946 (“The cardinal feature of the crime of 

disorderly conduct is public unruliness which can or does lead to tumult and 

disorder.”). 

In Commonwealth v. Forrey, 108 A.3d 895 (Pa. Super. 2015), for 

example, the defendant cussed at police officers while no one else was 

present. Id. at 897. The record reflected only that one officer could hear 

the defendant’s remarks from ten feet away. Id. Therefore, the defendant 

could not have created unreasonable noise (per § 5503(a)(2)) because no 

member of the public was present to hear it. Id. at 899. Likewise, in 

Maerz, the defendant yelled obscenities across the street at a neighbor she 

believed was shining a flashlight into her home. Maerz, 879 A.2d at 1268. 
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We concluded the defendant’s action did not jeopardize “the public peace.” 

Id. at 1271. “[The defendant’s] single outburst was brief, was only as loud

as a person of her presumably ordinary physical abilities can shout, occurred 

in the evening prior to ordinary sleeping hours, and prompted neither civil 

unrest nor a single neighbor to seek police intervention.” Id. In making 

statements that were “briefly irritating”, the defendant did not commit 

disorderly conduct. Id. 

On the other hand, in Commonwealth v. Roth, 531 A.2d 1133 (Pa. 

Super. 1987), appeal denied, 541 A.2d 1137 (Pa. 1988), this Court held that 

the defendants, in threating to enter a church during a worship service and 

dump scrap iron on an altar, acted with intent to cause public annoyance, 

inconvenience, or alarm. Id. at 1136-37. “The occurrences of that day were 

steeped in an emotionally charged atmosphere. ... Those who attended were 

frightened for their safety as well as for the welfare of the young and elderly 

members present.” Id. at 1137. 

Concerning § 5503(a)(4), a “’hazardous condition’ is a condition that 

involves danger or risk.” Commonwealth v. Williams, 574 A.2d 1161, 

1164 (Pa. Super. 1990). “The dangers and risks against which the 

disorderly conduct statute are directed are the possibility of injuries resulting 

from public disorders.” Id. In Williams, this Court held the defendant did 

not create a hazardous condition by walking silently through a parking lot in 

his underwear. Id. “His conduct was neither boisterous nor confrontational. 
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He did not threaten any residents of the apartment house.” Id. The 

defendant committed only a “minor act of vandalism” on a car in the parking 

lot. Id. 

In contrast, the defendants in Roth created a hazardous condition 

because altercations could have occurred. Roth, 531 A.2d at 1137. A 

physically offensive condition, within the meaning of § 5503(a)(4), 

“encompasses direct assaults on the physical senses of members of the 

public.” Williams, 574 A.2d at 1164. “A defendant may create such a 

condition if she sets off a ‘stink bomb’, strews rotting garbage in public 

places, or shines blinding lights in the eyes of others.” Id. Likewise, a 

physically offensive condition can occur where the defendant invades the 

physical privacy of the victim. Id. (citing Commonwealth v. Young, 535 

A.2d 1141 (Pa. Super. 1988) (holding that two male defendants created a 

physically offensive condition by entering a bathroom stall and confronting a 

woman sitting on a toilet), appeal denied, 544 A.2d 961 (Pa. 1988)). The 

Williams Court concluded the defendant did not create a physically 

offensive condition even though one person observed him walking through 

the parking lot in his underwear. Id. at 1165. 

Our review of the instant record reveals the following. Appellant was 

in his yard when he shouted the obscene remarks to Battistini, who was in 

her yard at the time with her boyfriend and several other people. N.T. Trial, 

6/20/14, at 13-16, 21. A five or six foot high fence separated the two 
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properties. Id. at 14. The record does not reflect that anyone other than 

Battistini heard Appellant’s remarks,2 nor does the record reflect that 

Appellant’s remarks could have reached anyone not present in the yard of 

Battistini or Appellant. 

Since the both the speaker and recipient of the offensive remarks were 

present in respective private yards, we believe the evidence is insufficient to 

establish that Appellant acted with the intent to cause public annoyance, 

inconvenience or alarm. Cf. Young, 535 A.2d at 1142-43 (holding a 

dormitory restroom that served fifty female students and their guests was a 

public place despite the presence of only the perpetrators and the victim at 

the time of the offense). We cannot conclude Appellant acted with the intent 

to create public annoyance when he made his offensive remarks in a private 

setting and the remarks apparently were discernible only to Battistini. 

Furthermore, we do not believe Appellant recklessly created a risk of a 

hazardous or physically offensive condition under § 5503(a)(4). Appellant’s 

conduct created no risk of “injuries resulting from public disorders.” 

Williams, 574 A.2d at 1164. Here, Appellant made a few brief, offensive 

remarks to Battistini and then retreated into his home. The two were 

separated by a fence, and the record fails to reflect that anyone else heard 

____________________________________________

2

 The Commonwealth’s only witnesses were Battistini and the investigating 

police officer. 
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Appellant’s statements. The encounter ended only seconds after it began. 

N.T. Trial, 6/20/14, at 24-26. 

We also do not believe Appellant’s conduct created a physically 

offensive condition, as Appellant did not engage in a direct assault on 

Battistini’s physical senses, as described in Williams. Williams, 574 A.2d 

at 1164. The Williams Court described offensive odors or blinding light as 

examples of physically hazardous conditions. Appellant also did not invade 

Battistini’s physical privacy, as the encounter occurred when she was 

present in her yard and visible to Appellant from his own yard. 

Here, Appellant’s conduct implicates only Battistini’s sense of sound. 

We therefore turn to Maerz and Forrey for persuasive authority, as those 

cases were decided under § 5503(a)(2) (“unreasonable noise”). 18 

Pa.C.S.A. § 5503(a)(2). In Maerz, the defendant shouted across the street 

at her neighbor: “you goddamn motherfucking son of a bitch, what the hell 

are you doing, get that light off my house[.]” Maerz, 879 A.2d at 1268. As 

noted above, the Maerz Court found the evidence insufficient because, 

among other things, the outburst was brief and did not cause a disturbance 

or “upset the public peace.” Id. at 1271. In Forrey, the defendant 

shouted: “all you fucking cops are communists just like Obama,” and “this 

fucking country sucks,” and “you better watch your back.” Forrey, 108 

A.3d at 897. The Commonwealth failed to prove the defendant created a 

level of noise inconsistent with neighborhood standards, especially since the 
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defendant uttered the remarks in a remote location. Id. at 898. Similarly, 

in the instant case, Appellant’s remarks were brief and did not cause public 

unrest or create a risk thereof. We therefore conclude the record does not 

contain sufficient evidence to support a finding that Appellant created a 

physically offensive condition.3 

For all of the foregoing reasons, we conclude the record, read in a light 

most favorable to the Commonwealth, does not contain sufficient evidence 

to support Appellant’s conviction under § 5503(a)(4).4 We therefore vacate 

the judgment of sentence. 

Judgment of sentence vacated. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2015

____________________________________________

3

 In reaching this decision, we certainly do not condone Appellant’s 

behavior. We find Appellant’s comments reprehensible but not criminal. 

4

 Appellant argues the trial court erred in permitting the Commonwealth to 

proceed under § 5503(a)(4), rather than § 5503(a)(3), to which Appellant 

pled guilty at the summary hearing. Given our disposition, we need not 

address this argument.