Commonwealth v. Fedorek , 2006 Pa. Super. 354 ( 2006 )

OPINION BY

FORD ELLIOTT, P.J.:

¶ 1 Jennifer Ann Fedorek appeals from the judgment of sentence entered following her conviction for disorderly conduct graded as a third degree misdemeanor pursuant to 18 Pa.C.S.A. § 5503(b). We certified this appeal for consideration en banc and now address the following issue: whether the Commonwealth must prove beyond a reasonable doubt that a defendant charged with disorderly conduct, graded as a misdemeanor of the third degree intended to cause substantial harm to the public or serious inconvenience to the public? We answer this question in the affirmative and reverse appellant’s judgment of sentence.

¶ 2 The underlying facts may be summarized as follows. On the evening of May 22, 2003, Dennis Scott Martin (hereinafter “the victim”) was at the Polish National Alliance Club (hereinafter “the Club”) in Oil City, Pennsylvania. (Notes of testimony, 3/12/04 at 6.) The victim, who was then the Club’s president, was dating Patty Schmader (hereinafter “Patty”). Patty had recently been divorced from Jack Schmader (hereinafter “Schmader”), a former friend of the victim. (Id. at 6-7.) Earlier in the day, the victim and Patty shopped for supplies for the Club. Schmader called the victim’s cellular phone seeking to inform Patty that their two children were locked out of her house and that he thought she should be at home. (Id. at 7-8.)

¶ 3 While at the Club later that evening, the victim saw Schmader, appellant, who is Schmader’s sister,¹ and appellant’s boyfriend, Eric Hutchinson (hereinafter “Hutchinson”). The victim assumed that the three had come to the Club together. Schmader approached the victim and asked if the victim wanted to talk. The victim responded that if Schmader wished to talk, they could do so in the victim’s office. (Id. at 10.) Schmader stated that they could talk outside, and all four left the bar. (Id. at 10-11.)

¶4 Once in the parking lot, Schmader began yelling at the victim about the victim’s relationship with Patty and the children. Schmader repeatedly poked the victim in the chest as he yelled; he was eventually standing so close the victim could feel the spray of his saliva. (Id. at 11-12.) The victim continued to back away as Schmader advanced. In this fashion, the two men traversed the length of the Club and turned the corner toward the delivery entrance. (Id. at 12-18.) The victim testified that appellant stood behind Schmader yelling: “Come on, Jack, hurt him. F-him up. Hurt him.” (Id. at 12-13.) The victim also observed Hutchinson trying to calm appellant down.

¶ 5 The victim and Schmader continued to argue. When the victim interjected words questioning Schmader’s ability as a parent, Schmader grabbed the victim about the shoulders and Hutchinson grabbed him around the neck; the victim began to have difficulty breathing and started to panic. (Id. at 13-14,16.) Eventually, the victim fell to the ground where he hit his head and was kicked in the left side. (Id. at 14.) At some point, as the grip on his neck slackened, the victim called out for help. (Id. at 16-17.) He then saw appellant in the driver’s seat of Schmader’s Jeep; she had the driver’s door open and was yelling for Schmader and Hutchinson to “get in and get the hell out of here.” (Id. at 17.) Appellant, Schmader, and Hutchinson left the scene in the Jeep.

¶ 6 For her role in the incident, appellant was charged with one count of simple assault graded as a second degree misdemeanor, one count of summary harassment, and one count of disorderly conduct graded as a third degree misdemeanor.² Hutchinson was similarly charged. Schmader pled guilty to simple assault, and all other charges against him were dismissed.

¶7 On March 12, 2004, appellant and Hutchinson were tried together before a jury. At the close of the Commonwealth’s case, appellant made a motion for judgment of acquittal, arguing that the Commonwealth failed to prove appellant intended to harm the victim. (Id. at 77, 79.) The motion was denied. Schmader then testified for the defense that appellant and Hutchinson had not accompanied him to the Club on the night of the assault but had come independently looking for him. He also testified that when the assault occurred, appellant and Hutchinson were on the other side of the Club building and that he left the scene alone in the Jeep. (Id. at 100,102,104-105.)

¶ 8 After deliberation, the jury certified that it was hopelessly deadlocked as to both appellant and Hutchinson on the simple assault, and the trial court declared a mistrial on that count. (Id. at 132-133.) The jury, however, found both appellant and Hutchinson guilty of disorderly conduct. The trial court, reasoning that the summary harassment offenses merged with the disorderly conduct offenses, declared both appellant and Hutchinson not guilty of summary harassment.

¶ 9 Appellant filed a post-trial motion for “judgment non obstante veredicto ”³ in which she again sought acquittal on the charge of disorderly conduct. Relying on this court’s decision in Commonwealth v. Smith, 811 A.2d 578 (Pa.Super.2002), she argued that there was no evidence of her intent to cause substantial harm to the public or serious inconvenience to the public; thus, the conviction graded as a third degree misdemeanor could not stand. Appellant claimed that, at best, the Commonwealth had proven summary disorderly conduct. (Certified record at 18.) By order dated March 16, 2004, the trial court denied the post-trial motion.

¶ 10 On April 19, 2004, appellant was sentenced to intermediate punishment with conditions including supervision of up to six months, a $300 fine, 30 hours of community service, and restitution for the victim’s medical costs. This appeal followed. At the trial court’s direction and pursuant to Pa.R.A.P 1925(b), appellant filed a concise statement of matters complained of on appeal. On May 6, 2004, the trial court filed an opinion in support of its denial of appellant’s post-trial motion.

¶ 11 On appeal, appellant questions the sufficiency of the evidence to support the conviction of disorderly conduct graded as a third degree misdemeanor. Specifically, she argues the Commonwealth did not prove that she had specific intent to cause substantial harm to the public or serious public inconvenience. We are thus presented with a preliminary issue of statutory interpretation. Statutory interpretation is an issue of law over which we exercise plenary review. Commonwealth v. Magliocco, 584 Pa. 244, 247, 883 A.2d 479, 481 (2005); see also Commonwealth v. Dellisanti, 583 Pa. 106, 112 n. 8, 876 A.2d 366, 369 n. 8 (2005) (recognizing that what this court had treated as an issue of sufficiency actually presented a question of statutory construction).

¶ 12 The statute at issue, 18 Pa.C.S.A. § 5503, codifies the criminal offense of disorderly conduct and provides the following:

(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.

(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.A. § 5503.

¶ 13 Appellant concedes that there is sufficient evidence to prove the offense of disorderly conduct.⁴ Had this concession not been made, we would conclude that the offense itself is supported by sufficient evidence. See Commonwealth v. Whritenour, 751 A.2d 687 (Pa.Super.2000), appeal denied, 563 Pa. 701, 761 A.2d 550 (2000) (“Public” elements of offenses of public drunkenness and disorderly conduct were met, though road on which defendant was arrested was located in a private community; the community was “public,” in that it consisted of residents of the homes of the community, their guests and employees, as well as visitors attending religious events, users of the public library, and delivery people, all of whom utilized the road); See Commonwealth v. Young, 370 Pa.Super. 42, 535 A.2d 1141 (1988) (affirming conviction for summary disorderly conduct where male appellant entered women’s restroom in a dormitory and opened the stall occupied by female student), appeal denied, 518 Pa. 649, 544 A.2d 961 (1988); Commonwealth v. Coolbaugh, 272 Pa.Super. 491, 416 A.2d 563 (1979) (affirming conviction for summary disorderly conduct where appellant precipitated a scuffle between himself and another at night on an icy roadway which recklessly created risk of public inconvenience, annoyance, or alarm).

¶ 14 Appellant contends, however, that the evidence is sufficient only to prove summary disorderly conduct. Specifically, appellant claims the Commonwealth failed to prove she had the proper mens rea for the offense to be graded as a third degree misdemeanor. Appellant argues that, as interpreted by this court in Smith, supra, and the earlier decision in Commonwealth v. Coon, 695 A.2d 794 (Pa.Super.1997), in order for the offense to be graded as a third degree misdemeanor, the intent to cause “substantial harm or serious inconvenience” must be directed at the public peace as opposed to a specific individual such as the victim here. We agree.

¶ 15 “Pennsylvania is a ‘code jurisdiction’: it recognizes no common law crimes.” Commonwealth v. Reaser, 851 A.2d 144, 148 (Pa.Super.2004), quoting Commonwealth v. Booth, 564 Pa. 228, 233-234, 766 A.2d 843, 846 (2001), appeal denied, 581 Pa. 674, 863 A.2d 1145 (2004).⁵ “ ‘Necessarily, then, when the judiciary is required to resolve an issue concerning the elements of a criminal offense, its task is fundamentally one of statutory interpretation, and its overriding purpose must be to ascertain and effectuate the legislative intent underlying the statute.’ ” Id., quoting Booth.

¶ 16 In interpreting a statute, we are guided by the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq., which directs that “the object of interpretation and construction of all statutes is to ascertain and effectuate the intention of the General Assembly.” Walker v. Eleby, 577 Pa. 104, 123, 842 A.2d 389, 400 (2004), citing 1 Pa.C.S.A. §§ 1903(a), 1921(b). “The clearest indication of legislative intent is generally the plain language of a statute.” Walker, supra. “When words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S.A. § 1921(b). Thus, if the language of a statute is clear and unambiguous, a court must read its provisions in accordance with their plain meaning and common usage. Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888, 890 (Pa.Super.1987) (ere banc).

¶ 17 Additionally, we note: “It is axiomatic that in interpreting a statute we may presume that the legislature did not intend an absurd or unreasonable result. We may therefore examine the practical consequences of a particular interpretation.” Commonwealth v. Davis, 799 A.2d 860, 870 (Pa.Super.2002) (internal citations and quotation marks omitted). Legislative intent can only be derived by reading all sections of the statute together and in conjunction with each other and construed with reference to the entire statute. Housing Auth. of County of Chester v. Pennsylvania State Civil Service Com’n, 556 Pa. 621, 640, 730 A.2d 935, 945 (1999).

¶ 18 To interpret Section 5503(b) as it relates to the question presented in this appeal, we must first examine its statutory language, as well as the language of Section 5503 as a whole. See Walker, supra. Subsection (b) on grading the offense provides in pertinent part: “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.” 18 Pa.C.S.A. § 5503(b).

¶ 19 The Commonwealth asserts that the word “public” does not appear in the grading portion of the statute. (Commonwealth’s brief at 2.) The Commonwealth posits that “[t]his shows that the distinction the legislature intended to make between a misdemeanor and a summary offense is not between public and private harm, but rather in the degree of intended harm — between substantial harm and harm that is merely trivial.” (Id.) We disagree.

¶ 20 While the word “public” is not included in the grading section, the indispensable ingredient of the offense itself is a public harm or a public inconvenience. The crime of “disorderly conduct,” which appears in Article F., ‘Offenses Against Public Order and Decency,’ is aimed at protecting the general public against antisocial acts which violate standards of public order and decency. For instance, the offense of “public drunkenness,” which also appears under this article, was not intended to punish all forms of drunkenness but only drunkenness in a public place to such a degree as to endanger the person himself or other persons or property or annoy persons in the vicinity. Commonwealth v. Meyer, 288 Pa.Super. 61, 431 A.2d 287, 289 (1981). Likewise, a panel of this court previously stated, the gravamen of the offense of disorderly conduct is the public impact that is either intended or recklessly risked. Commonwealth v. Greene, 410 Pa. 111, 115, 189 A.2d 141, 144 (1963).

The crime 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. It has a specific purpose; it has a definitive objective, it is intended to preserve the public peace; it has thus a limited periphery beyond which the prosecuting authorities have no right to transgress any more than the alleged criminal has the right to operate within its clearly outlined circumference.

Id. at 117, 189 A.2d at 145 (emphasis added).

¶21 Looking to the statute itself, the term “public” is specifically contained in Subsection (a), which lists the elements necessary to be convicted of the offense of disorderly conduct. 18 Pa.C.S.A. § 5503(a). Subsection (c) defines the word “public,” and immediately follows the grading subsection. The grading of the offense of disorderly conduct, Section 5503(b), which does not include the term “public,” is correlated to the degree of the intended harm. When all of the sections of this statute are read together and in conjunction with the title and chapter where the statute is found, we are hard-pressed to conclude that the grading subsection would subtract the essential element of the crime when grading the offense as a third degree misdemeanor — the harshest punishment permitted under the statute.

¶ 22 The legislature clearly intended this statute to punish different degrees of disorderly conduct more harshly than others. By assigning a grade based on the actor’s intent to cause different degrees of harm, the legislature is able to differentiate between two different acts that both qualify as disorderly conduct and to punish one more harshly than another. While the Commentary to MPC § 250.2 also does not include the word “public” in its discussion of grading, we find that it goes without saying that a lesser sanction is designated for behavior not specifically intended by the actor to affect the broader public peace. For instance, “the noisy family quarrel ... hardly warrants a jail sentence, even if it awakens the entire neighborhood.” Model Penal Code and Commentaries, Part II, § 250.2 (ALI 1980).

¶ 23 Furthermore, as the drafters of the Model Penal Code observed, this statute was intended to be cautiously applied:

[Disorderly conduct] penalizes public nuisance. It is not designed to substitute for other offenses or to punish, without reference to the law of attempt, a wide variety of inchoate behavior. Neither is it intended to provide blanket authority for ridding the streets of undesirables. Instead, [this section] reflects an effort to limit disorderly conduct to specifically designated acts likely to create a public nuisance.

14 West’s Pa. Prac., Crim. Offenses & Defenses D520 (5th Ed.), citing American Law Institute, Model Penal Code, § 250.2, Revised Commentary at 328 (1980). As the statute is intended to protect the public peace, we believe that the more severe punishment was clearly intended to apply for substantial harm to the public peace or serious inconvenience to the public peace.

¶ 24 Additionally, two prior panels of our court have interpreted Section 5503(b) to necessitate a showing of intent to cause substantial harm to the public or serious inconvenience to the public for the misdemeanor version of the offense. See Smith, supra; Coon, supra. In Coon, the defendant had been convicted of summary harassment and disorderly conduct graded as a third degree misdemeanor for shooting bullets toward his neighbor’s rural home after the sound of gunfire related to target practice on the neighbor’s property disturbed his afternoon nap. Coon, 695 A.2d at 796. The defendant appealed from the convictions, questioning the sufficiency of the evidence to support the misdemean- or disorderly conduct conviction. The panel in Coon framed the applicable inquiry as follows:

To convict appellant on the charge of disorderly conduct as a misdemeanor of the third degree, the Commonwealth was required to prove that appellant intended to cause substantial harm to the public or serious public inconvenience by his actions, or that he persisted in disorderly conduct after a reasonable warning or request to desist was made. 18 Pa.C.S. § 5503(b).

Id. at 798 (emphasis in the original). Pursuant to this standard, the defendant’s conviction was reversed as the Commonwealth had failed to prove the required mens rea for the offense as the neighbor’s private home did not meet the statutory definition of “public.” Id. The panel also held that even if the offense element of “public” was met, the requisite mens rea was lacking, as appellant “denied any intent to cause serious public inconvenience or substantial harm to the public,” id. at 798-799, and the circumstances indicated only that his actions “were directed at a lone individual ...” Id. at 799.

¶ 25 In Smith, supra, the defendant punched a man who had spoken of him derisively to a third party at a bar. The court quoted the statutory language of Section 5503 and quoted Coon, stating “to prove the misdemeanor version of the offense [of disorderly conduct], the statute requires a showing of specific intent ‘to cause substantial harm to the public or serious public inconvenience.’ ” Smith, 811 A.2d at 580, quoting Coon, supra at 798 (emphasis in the original).

¶26 Instantly, our review of the evidence leads to the conclusion that appellant’s disorderly conduct conviction should have been graded as a summary offense. The Commonwealth did not demonstrate that appellant’s actions posed a wider threat or were intended to affect the other patrons of the bar. There is no indication her actions in the parking lot were intended to cause substantial harm or inconvenience to the general public. In this instance, there is simply no evidence that appellant’s ambitions in goading on the fight ranged any further than harm to the victim’s person, for which she was charged separately with simple assault. At the most, her actions created a risk of public inconvenience, annoyance, or alarm, a summary offense. Thus, the evidence is insufficient to prove the requisite intent to sustain the conviction graded as a third degree misdemeanor.

¶ 27 Judgment of sentence reversed and remanded for resentencing. Jurisdiction relinquished.

¶ 28 Orie Melvin, J. files a Dissenting Opinion which is joined by Joyce, Bowes, and Gantman, JJ.

1 . The record is unclear as to whether appellant is Schmader's sister or step-sister. (See notes of testimony, 3/12/04 at 25, 69, and 96.)

2 . 18 Pa.C.S.A. §§ 2701, 2709, and 5503 respectively.

3 . We note that Pa.R.Crim.P. 720(B) provides for post-trial motions for judgment of acquittal and in arrest of judgment.

4 . In other words, she concedes that the Commonwealth proved beyond a reasonable doubt that "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [s]he: (1) engage[d] in fighting or threatening, or in violent or tumultuous behavior,” or used "obscene language.” 18 Pa.C.S.A. § 5503(a)(1), (3); appellant’s brief at 7-8.

5 . In fact, the offense of disorderly conduct is uniquely a creature of statute as it has no common law predecessor. See Comment, "Public Disorder Offenses Under Pennsylvania's New Crimes Code,” 78 Dick. L.Rev. 1, 17 (1973).