Com. v. Parker, W. ( 2021 )

J-A18035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM PARKER :
:
Appellant : No. 397 WDA 2020
Appeal from the Judgment of Sentence Entered February 6, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007325-2019
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED: SEPTEMBER 24, 2021
Appellant William Parker appeals pro se from the judgment of sentence
imposed following his conviction for disorderly conduct, graded as a summary
offense.1 Appellant argues that there was insufficient evidence to support his
conviction. Following our review, we reverse.
The trial court summarized the underlying facts of this matter as follows:
[Appellant] is the founder of a company called VendSpin.
[Appellant] sought investment from Innovation Works for
VendSpin. Innovation Works is a seed stage investor which
provides early-stage investments and other business resources to
tech companies. On August 14, 2018, [Appellant] attended an
Innovation Works cook-out seeking investment in his company.[2]
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1 18 Pa.C.S. § 5503(a)(1).
2 The event was held at the Innovation Works office space, which has a “large
collaboration space” with a “glass garage door that can be lifted up and then
it goes out to an outdoor patio.” See N.T. Trial, 2/6/20, at 101. The CEO of
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[Appellant] approached Jeffery McDaniel, a portfolio executive of
Innovation Works, at the event asking where his money was.
When Mr. McDaniel advised that Innovation Works was not
investing in [Appellant’s] company at this time, [Appellant]
became extremely agitated and began shouting at Mr. McDaniel.
[Appellant] then approached Richard Lunak, the president and
CEO of Innovation Works. [Appellant] began shouting, becoming
extremely disruptive, screaming profanities, demanding [that]
Innovation Works invest in his company. [Appellant] continued to
scream at Mr. Lunak as he backed up[,] asking [Appellant] to calm
down. Mr. McDaniel then came between [Appellant] and Mr.
Lunak and [Appellant] subsequently shoved Mr. McDaniel into Mr.
Lunak[,] causing them to both stumble. Ultimately, several
attendees at the event attempted to calm [Appellant] down and
remove him from the event.[3]
Trial Ct. Op., 6/11/20, at 1-2.
The Commonwealth subsequently filed a criminal information charging
Appellant with disorderly conduct and harassment for the August 2018
incident.4,5 See Criminal Information, 6/14/19, at 1. On February 6, 2020,
the trial court found Appellant guilty of summary disorderly conduct in the
instant matter and not guilty of the remaining charges. See N.T. Trial, 2/6/20,
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Innovation Works testified that the event was for “members of the Innovation
Works community that included investors or stakeholders, [and] other
entrepreneurs.” See id. at 57.
3 The record reflects that after multiple people urged Appellant to leave the
event, he did so on his own accord. See N.T. Trial, 2/6/20, at 91.
4 18 Pa.C.S. § 2709.
5 The Commonwealth also filed a separate criminal information charging
Appellant with disorderly conduct, trespass, and related offenses for a June
2019 incident in which Appellant allegedly used a bullhorn to scream
obscenities at Innovation Works employees while he stood outside the office
on a public street. See Docket No. 4269-2019. However, Appellant was
acquitted of those charges at trial.
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at 147. That same day, the trial court sentenced Appellant to ninety days’
probation.
Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement.6 The trial court issued a responsive
Rule 1925(a) opinion concluding that there was sufficient evidence to support
his conviction for disorderly conduct.
On appeal, Appellant raises the following issues:
1. Whether the Commonwealth failed to present sufficient
evidence to prove beyond a reasonable doubt that [Appellant]
acted with “intent to cause public inconvenience, annoyance,
or alarm, or recklessly creat[ed] a risk thereof[,]” as required
to sustain a conviction of disorderly conduct under 18 Pa.C.S.
§ 5503(a).
2. Whether the Commonwealth failed to present sufficient
evidence to prove beyond a reasonable doubt that the incident
giving rise to [Appellant’s] conviction of disorderly conduct
occurred in a public place as defined in 18 Pa.C.S § 5503(c)
and relevant case law.
Appellant’s Brief at 5 (some formatting altered).
Both of Appellant’s claims challenge the sufficiency of the evidence
supporting his conviction for disorderly conduct. Id. at 12. First, Appellant
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6 We note that after Appellant filed his pro se notice of appeal, counsel from
the Allegheny County Public Defender’s Office entered his appearance on
Appellant’s behalf. Counsel subsequently filed a Rule 1925(b) statement and
appellate briefs with this Court. On January 13, 2021, counsel filed a motion
to withdraw and requested that we remand the matter for a hearing pursuant
to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On remand, the
trial court conducted a Grazier hearing and permitted Appellant to proceed
pro se. Ultimately, after Appellant indicated his intention to file a new brief,
this Court reset the briefing schedule and gave Appellant forty days to file his
appellate brief. Appellant filed his pro se brief on June 1, 2021.
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argues that “the Commonwealth’s evidence was insufficient to demonstrate
that [he] either intended or consciously disregarded a substantial and
unjustifiable risk that his conduct would result in public inconvenience,
annoyance, or alarm.” Id. at 14. Appellant asserts that “while Mr. Lunak may
have felt subjectively threatened by [Appellant’s] close proximity and
‘agitated’ demeanor, there was no objective basis for the inference that
[Appellant] recklessly disregarded (much less specifically intended) the
possibility that his confrontation would cause public inconvenience,
annoyance, or alarm among the remaining attendees.” Id. at 14-15.
Likewise, Appellant argues that “while [his] swat of Mr. McDaniel’s arm ‘may
have been intemperate, unreasonable, or even unjustified,’” that conduct was
insufficient to prove that he intended to cause or recklessly disregarded the
risk of causing public inconvenience or alarm. Id. at 15-16.
Appellant also asserts that the Commonwealth failed to prove that the
incident occurred in a public place, as required for a disorderly conduct
conviction under Section 5503(a)(1). Id. at 18. In support, Appellant argues
that the incident “took place at an event held by Innovation Works,” and that,
similar to the private party in Commonwealth v. Lawson, 759 A.2d 1, 5 (Pa.
Super. 2000), “the Commonwealth introduced no evidence that [the] event
was public in nature.” Id. at 19. Instead, Appellant notes that Mr. McDaniel
“described the event in question as one for members of the Innovations Works
community that included investors or stakeholders [and] other
entrepreneurs,” which suggests that “attendance was limited to a
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predetermined set of guests.” Id. Appellant concludes that “[b]ecause the
Commonwealth failed to present any evidence that [his] conduct took place
in a public setting and therefore risked public disturbance or unruliness, his
conviction must be reversed.” Id. at 20.
The Commonwealth responds that “the evidence demonstrated that
[Appellant] did indeed specifically intend to cause public inconvenience,
annoyance, or alarm.” Commonwealth’s Brief at 12. Specifically, the
Commonwealth contends that during Appellant’s interactions with Mr. Lunak
and Mr. McDaniel, he “began shouting and uttering profanities” towards the
middle of the room and also loudly claimed that Innovation Works was “not
investing in African American-led companies.” Id. The Commonwealth
asserts that even if Appellant’s “subjective intent had not been to disturb any
of the other guests and instead he had only wanted to yell at the higher-ups
whom he felt were withholding money from him,” his conduct was sufficient
to demonstrate that he “consciously disregarded the risk that public
inconvenience, annoyance, and alarm would ensue as a result of his actions.”
Id.The Commonwealth also argues that although “the location at which
Innovation Works had held its cookout was presumably private, it was, on the
day in question at least, accessible to hundreds of invited guests.” Id. at 19;
see also id. at 17-18 (discussing Commonwealth v. O’Brien, 939 A.2d 912(Pa. Super. 2007) and Commonwealth v. Whritenour, 751 A.2d 687 (Pa.
Super. 2000)). The Commonwealth contends that, “by any reasonable
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interpretation, [Appellant’s] actions were quite public, occurring as they did in
an outdoor setting to which access was afforded to a substantial group of
people, many of whom, it would be fair to infer, would not have had any idea
who [Appellant] even was.” Id. The Commonwealth contends that “these
circumstances—the nature of the event, the number of people in attendance,
the fact that many of them were undoubtedly strangers to [Appellant]—
distinguish the instant matter from Lawson.” Id. at 19 n.7. Therefore, the
Commonwealth concludes that Appellant is not entitled to relief.7
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
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7 Notably, the Commonwealth does not dispute that the incident occurred at
a private event. See Commonwealth’s Brief at 19. Instead, the
Commonwealth argues that the statutory definition of ‘public’ applies to the
instant matter because the event was “accessible to hundreds of invited
guests.” Id. at 19.
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Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
Pursuant to Section 5503 of the Crimes Code, “[a] person is guilty of
disorderly conduct if, with intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, he . . . engages in fighting or
threatening, or in violent or tumultuous behavior[.]” 18 Pa.C.S. § 5503(a)(1).
Section 5503(c) defines ‘public’ as “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. § 5503(c).
Our Supreme Court has explained that
Section 5503 is aimed at protecting the public from certain
enumerated acts. Under the statute, whether a defendant’s words
or acts rise to the level of disorderly conduct hinges upon whether
they cause or unjustifiably risk a public disturbance. The cardinal
feature of the crime of disorderly conduct is public unruliness
which can or does lead to tumult and disorder. . . .
Although Section 5503 as a whole is aimed at preventing public
disturbance, it accomplishes this aim by focusing upon certain
individual acts, which, if pursued with the intent to cause public
inconvenience, annoyance, or alarm, or recklessly creating a risk
thereof, constitute the offense of disorderly conduct. These
individual acts focus upon the offender’s behavior. One such act
. . . is “engag[ing] in fighting or threatening, or in violent or
tumultuous behavior.” 18 Pa.C.S. § 5503(a)(1). Significant is the
fact that the General Assembly did not require that this prohibited
act be directed at a certain number of persons that could qualify
as “the public.” Therefore, 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
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person, the offender may be subject to conviction for disorderly
conduct.
Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (some citations
omitted) (some formatting altered); see also Commonwealth v. Greene,
189 A.2d 141, 145 (Pa. 1963) (holding that the crime of disorderly conduct
“is intended to preserve the public peace”).
This Court has held that “the size of any neighborhood, any premises or
private community does not dictate whether or not that premises,
neighborhood, or community is ‘public’ for purposes of the disorderly conduct
statute.” O’Brien, 939 A.2d at 914. Instead, this Court has focused on
whether the area “constitutes ‘a place to which the public or a substantial
group’” has access. Id.In Lawson, the defendant was convicted of disorderly conduct for an
incident that occurred during a college party inside of an apartment. Lawson,
759 A.2d at 2-3. On appeal, the defendant argued that, because the entire
confrontation took place inside of a private residence, there was insufficient
evidence to prove that he intended to cause public inconvenience or alarm.
Id. at 5. Ultimately, this Court agreed, noting that the apartment party was
limited to “renters of the apartment and their invited guests” and concluding
that places that are “not open to the public, [but] [where] several members
of the public [have] been invited[,]” are not ‘public’ under 18 Pa.C.S. §
5503(c). Id. at 5-6.
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In Whritenour and O’Brien, this Court held that a private road located
inside of a private neighborhood could be considered ‘public’ for purposes of
Section 5503(c). See O’Brien, 939 A.2d at 914; see also Whritenour, 751
A.2d at 688. In both cases, the Court reasoned that although the roads were
labeled as “private,” they were accessible to a substantial group of the public.
See Whritenour, 751 A.2d at 688 (noting that the road was “traversed by
members of the community and their invitees or licensees” which “included
residents of the homes in the community, their guests and employees, as well
as visitors attending religious events, users of the public library located in the
community, and delivery people of all kinds”); see also O’Brien, 939 A.2d at
914 (stating that, like in Whritenour, the private road was “‘a place to which
the public or a substantial group,’ namely the surrounding community’s
residents and their invitees, ha[d] access”).
Here, in concluding that there was sufficient evidence to support
Appellant’s conviction for disorderly conduct under Section 5503(a)(1), the
trial court stated: “The Commonwealth presented evidence that [Appellant]
attended a [barbecue] event held by Innovation Works for investors,
stakeholders and other entrepreneurs. At the event, [Appellant] became
irate, threatening Mr. McDaniel and Mr. Lunak both verbally and physically
causing a significant disruption and alarm to the event and individuals
attending.” Trial Ct. Op. at 4.
Based on our review of the record, and viewing the evidence in the light
most favorable to the Commonwealth, we conclude that there was insufficient
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evidence to establish Appellant’s intent to cause public inconvenience. See
Palmer, 192 A.3d at 89; see also 18 Pa.C.S. § 5503(a)(1), (c).
As discussed previously, the record reflects that Appellant confronted
Mr. Lunak and Mr. McDaniel in the Innovation Works office during an annual
meeting that was open to investors, stakeholders, and other entrepreneurs.
See N.T. Trial, 2/6/20, at 57. Like in Lawson, attendance at the Innovation
Works event was limited to a specific group of individuals. See Lawson, 759
A.2d at 5-6. Further, the Commonwealth did not present any evidence or
testimony to establish that the event, or even the Innovation Works office,
was accessible to a substantial group of the public.8,9 Although a large number
of guests attended the event, that fact does not transform private property
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8 As noted previously, the record reflects that the entire event was held within
the confines of the Innovation Works office space, which included an outdoor
patio area. However, we note that the trial testimony did not establish that
the patio was open to the public. Instead, it appears that the patio area was
only accessible through the Innovation Works office. See N.T. Trial, 2/6/20,
at 101 (reflecting Mr. Lunak’s testimony that the event took place in the office,
which includes an outdoor patio area, but that guests had to use the front
door of the office to exit the event). In any event, it was the Commonwealth’s
burden to prove that the incident occurred in a public place, rather than
Appellant’s burden to establish that the event was private. See
Commonwealth v. Cosnek, 836 A.2d 871, 874 (Pa. 2003) (reiterating that
the Commonwealth bears the “never shifting burden to prove each element of
the crime charged beyond a reasonable doubt” and a criminal defendant has
no duty to produce evidence in his own defense at trial). Therefore, in the
absence of any evidence proving the public element required for disorderly
conduct, Appellant’s conviction cannot stand.
9 We emphasize that none of the alleged behavior at this docket occurred on
the outdoor patio. See N.T. Trial, 2/6/20, at 60, 101 (establishing that
Appellant confronted Mr. Lunak inside the office space, after Mr. Lunak had
returned from the patio area).
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into a ‘public’ place for purposes of the disorderly conduct statute. See
O’Brien, 939 A.2d at 914 (stating that the size of a premises or community
does not dictate whether it is “‘public’ for purposes of the disorderly conduct
statute’”).
Therefore, because the Commonwealth failed to establish that the
incident occurred in public or in a place to which a substantial group of the
public had access, there is insufficient evidence to prove that Appellant
intended to cause or recklessly disregarded the risk of causing public
inconvenience or alarm. See Fedorek, 946 A.2d at 100 (stating that “Section
5503 is aimed at protecting the public from certain enumerated acts” and
reiterating that disorderly conduct occurs when a defendant “engages in
fighting or threatening, or in violent or tumultuous behavior in a public
arena”). Accordingly, we reverse.
Judgment of sentence reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2021
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