Com. v. Brandt, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAWN BRANDT :
:
Appellant : No. 1934 MDA 2017
Appeal from the Judgment of Sentence November 15, 2017
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-SA-0000047-2017
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 16, 2018
Dawn Brandt appeals pro se from the judgment of sentence imposed
following her conviction for disorderly conduct towards a police officer, a
summary offense, Lebanon City Ord. § 705.025(a). We affirm.
On May 30, 2017, Police Officer Enoc Ayala, of the Lebanon City Police
Department, responded to Denise Nardo’s residence following a complaint that
her next-door neighbor, Brandt, was throwing trash from the rear of her
property onto a public street. See N.T., Summary Trial, 11/15/17, at 16-17.
After viewing video footage taken from Nardo’s surveillance camera, which
appeared to corroborate Nardo’s claim, Officer Ayala approached Brandt to
question her concerning her alleged actions. See id., at 17. However, before
Officer Ayala could ask Brandt anything, she began cursing and complaining
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* Retired Senior Judge assigned to the Superior Court.
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about a van parked on her street. See id., at 18. Once Officer Ayala was able
to ask Brandt about Nardo’s allegation, Brandt used the term “motherfucker,”
stated that Nardo was “fucking lying,” and directed a racial slur at Officer
Ayala—calling him “a spic.” Id.
Based upon this unpleasant interaction, a Non-Traffic Citation, No.
R1464822-2, was filed against Brandt, charging her with the summary offense
of disorderly conduct towards a police officer, as well as the summary offense
of littering, Lebanon City Ord. § 709.01. A hearing was held in the Magisterial
District Court, after which Brandt was found guilty of both summary offenses
and ordered to pay fines.
Following the filing of a timely summary appeal, a bench trial was held
before the Lebanon County Court of Common Pleas. Officer Ayala and Nardo
both testified at the bench trial. Officer Ayala testified as to Brandt’s cursing
and racial slurs, and Nardo, who witnessed the exchange between Officer
Ayala and Brandt, corroborated his version of events. See N.T., Summary
Trial, 11/15/17, at 4-6. Brandt did not testify on her own behalf. The trial
court found Brandt guilty of disorderly conduct towards a police officer, not
guilty of littering, and imposed a fine of $100, plus court costs. This timely
appeal follows.
On appeal, Brandt raises several, convoluted challenges to her
conviction. Her statement of questions lists six unnumbered questions for our
review; however, her argument section is not divided into six parts. See
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there
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are questions to be argued[.]”) In attempting to discern the exact issues
raised by Brandt, we have distilled her claims into three questions for our
review.
First, Brandt contends that her conviction for disorderly conduct cannot
stand because there was no proof that she used “fighting words” against
Officer Ayala. Brandt then raises several challenges to the trial court’s
credibility determinations. And, finally, Brandt challenges the
Commonwealth’s failure to call a witness during the bench trial.1
Our standard of review from an appeal of a summary conviction
following de novo trial is whether there was an error of law or
whether the findings of the court are supported by the record. The
trial court’s verdict will only be disturbed if there was a manifest
abuse of discretion.
Commonwealth v. Akinsanmi, 55 A.3d 539, 540 (Pa. Super. 2012)
(internal citations omitted).
Brandt first asserts that because her statements towards Officer Ayala
did not constitute “fighting words,” her conviction for disorderly conduct
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1 Brandt also purports to challenge the validity of Lebanon City’s disorderly
conduct towards a police officer ordinance, as she contends it is “overbroad
and vague.” Appellant’s Brief, at 3b. However, Brandt did not include this claim
in her Rule 1925(b) statement. See Defendant’s Concise Statement of Errors
Complained of on Appeal, 1/3/18. Therefore, she has waived the issue on
appeal. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding
that any issues not raised in a 1925(b) statement will be deemed waived).
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cannot stand.2 Fighting words are “[words] which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.” Commonwealth
v. Mastrangelo, 414 A.2d 54, 58 (Pa. 1980). This Court has held that a
person can be convicted of disorderly conduct under the Crimes Code by
uttering “fighting words.” Commonwealth v. Reynolds, 835 A.2d 720, 730-
831 (Pa. Super. 2003).
However, while Brandt is correct in noting that “fighting words” can lead
to a conviction of disorderly conduct under the Crimes Code, this is not the
only way spoken words can lead to a disorderly conduct conviction. See
Commonwealth v. Pringle, 450 A.2d 103, 105-106 (Pa. Super. 1982) (“[I]t
is well-settled in our Commonwealth that one may be convicted of disorderly
conduct for engaging in the activity of shouting profane names and insults a
police officers on a public street while the officers attempt to carry out their
lawful duties.”)
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2 In her statement of questions, Brandt alleges that her “First Amendment
right of freedom of speech was not addressed by the … Court of Common
Pleas.” Appellant’s Brief, at 3a (unnecessary capitalization omitted). However,
Brandt does not present any argument related to the First Amendment to the
United States Constitution or her right to freedom of speech in the argument
section of her brief. Instead, she focuses her argument on whether or not her
conviction can stand without a finding that her statements constituted
“fighting words.” Id., at 7a-7b. Therefore, we have confined our analysis to
the actual issue Brandt has presented for our review.
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In any event, Brandt was not even convicted of disorderly conduct under
the Crimes Code. Instead, her conviction fell under the Lebanon City
Ordinance, which provides as follows:
Disorderly conduct towards a police officer is defined as follows:
(a) By violent, tumultuous, or obstreperous conduct or carriage,
or by loud or unusual noises, or by abusive language which
disturbs any police officer in the discharge of his/her duty.
Lebanon City Ord. § 705.025(a).
The Lebanon City Ordinance does not require that “fighting words” be
uttered for a conviction under the ordinance. Rather, it requires an individual
utter “abusive language which disturbs any police officer.” The trial court
clearly found that referring to Officer Ayala as “a spic” constituted abusive
language that disturbed Officer Ayala in the discharge of his duty. See Trial
Court Opinion, 2/8/18, at 4-5. The record supports this finding. Therefore, we
will not disturb Brandt’s conviction on this basis.
In the remaining pages of her argument, Brandt sets forth her
challenges to the trial court’s credibility determinations and the
Commonwealth’s failure to call a witness, but without reference to any type
of legal authority or law. Brandt instead devotes her argument to attacks on
Nardo’s character and conclusory arguments that she alleges should result in
this Court vacating her conviction. “[A]s Appellant has cited no legal
authorities nor developed any meaningful analysis, we find [these issues]
waived for lack of development.” Commonwealth v. Antidormi, 84 A.3d
736, 754 (Pa. Super. 2014).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2018
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