Com. v. Green-Webb, T.

J-A02023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRAVIS TARRELL GREEN-WEBB :
:
Appellant : No. 391 WDA 2021
Appeal from the Judgment of Sentence Entered February 18, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002040-2020
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY MURRAY, J.: FILED: MARCH 8, 2022
Because I disagree with the Majority’s disposition downgrading
Appellant’s conviction for disorderly conduct under 18 Pa.C.S.A. § 5503(a)(1)
from a misdemeanor to a summary offense, as well as the Majority’s
disposition vacating Appellant’s conviction for disorderly conduct under
§ 5503(a)(4), I respectfully dissent.
Importantly, the parties stipulated to the facts of record, which are
limited to the Affidavit authored by Officer Di Cesare. See Majority at 2-4;
see also Affidavit of Probable Cause, 2/10/20, at 2; N.T., 2/18/21, at 2, 8-
11. After reviewing the Affidavit and hearing argument, the trial court
concluded there was “no doubt in the court’s mind that [Appellant’s] conduct
caused substantial inconvenience and amounted to disorderly conduct as
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* Retired Senior Judge assigned to the Superior Court.
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described in Section 5503A1 and B and A3 and B, and also 5503A4.” N.T.,
2/18/21, at 11.
While the Majority agrees with Appellant’s conviction under
§ 5503(a)(1), it finds the evidence “insufficient to establish the grading of the
offense as a misdemeanor … under Section 5503(b).” Majority at 8.
The disorderly conduct statute provides for grading, in entirety, as
follows:
(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.
18 Pa.C.S.A. § 5503(b) (emphasis added).
The Majority begins its analysis by noting the Commonwealth indicated
at oral argument “that reducing the conviction to a summary offense was
appropriate.” Majority at 7. However, the Commonwealth was not so clear
in its appellate brief, and acknowledged that Appellant, despite multiple
requests, persisted in his conduct. See Commonwealth Brief at 15 (Appellant
“continued to resist cooperating”). The Commonwealth states:
Given the sparse record, it cannot be affirmatively asserted
that [A]ppellant’s conduct delayed clearance of the construction
area that morning, but a reasonable inference, which is proper
under sufficiency analysis, is that it did cause some delay. This is
especially true since a supervisor of the construction company had
to call police because “there were vehicles parked within the
construction area in which they were to work.” Appellant’s
tirade certainly caused three other police officers to
respond to the disturbance. He ignored efforts to have the
situation explained to him and continued to resist
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cooperating, even though he knew that the construction site
needed to be cleared. His anger and obstinacy were such that
when his girlfriend asked him to calm down, his response
was to scream: “Get me the fucking keys to the car! I’m moving
my car! I ain’t paying you shit! You ain’t taking my car!” Having
to forcibly remove an angry, hostile person from a car is fraught
with risk and danger. Not only to the police, but to bystanders as
well. His confrontational profane threats and his active
defiance of police instructions risked escalating the
situation, especially if his behavior was keeping workers
from their jobs. His clenched fists demonstrated he was willing
to physically confront anyone who tried to stop him from moving
his car.
Commonwealth Brief at 15-16 (emphasis added).
The Majority cites authority from the Pennsylvania Supreme Court,
recognizing that the grading of disorderly conduct “focuses on the offender’s
behavior.” Majority at 7 (citing Commonwealth v. Fedorek, 946 A.2d 93,
101 (Pa. 2008) (italics in Majority, underline in original)).1 In concluding
Appellant’s behavior was “insufficient to establish the grading of the offense
as a misdemeanor,” the Majority reasons “there is no showing that Appellant
intended to cause substantial harm or serious inconvenience or that his
conduct went on for a long period of time after the police told him to cease
and desist.” Id. at 8. The Majority adds that the “Affidavit does not set forth
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1 The Supreme Court also stated that “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 . . . [t]o determine the
meaning of a statute, a court must first determine whether the issue may be
resolved by reference to the express language of the statute, which is to be
read according to the plain meaning of the words.” Fedorek, 946 A.2d at 98
(citations omitted).
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how long the incident lasted so that the impact of his conduct could be
determined.” Id.2 Critically, the length of the disorderly conduct is not a
grading factor. See 18 Pa.C.S.A. § 5503(b).
As the Majority notes, we must view the evidence and all reasonable
inferences in the light most favorable to the Commonwealth as the verdict
winner, and may not substitute our judgment for the trial court sitting as the
factfinder. See Majority at 5 n.4 (citation omitted); see also
Commonwealth v. Goldman, 252 A.3d 668, 673 (Pa. Super. 2021). Any
doubt about Appellant’s guilt is for the factfinder, and if the record supports
the verdict, it may not be disturbed. Id. Furthermore, “[t]he Commonwealth
may sustain its burden of proving every element of the crime by means of
wholly circumstantial evidence.” Commonwealth v. McConnell, 244 A.3d
44, 48 (Pa. Super. 2020).
Upon review, I would conclude that the evidence supports the trial
court’s grading of Appellant’s conviction as a misdemeanor, consistent with
the disjunctive elements of 18 Pa.C.S.A. § 5503(b) (disorderly conduct is a
misdemeanor if the actor’s “intent … is to cause substantial harm or serious
inconvenience, or if he persists in disorderly conduct after reasonable
warning or request to desist.”) (emphasis added). The Affidavit describes
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2 Appellant likewise asserts that “the mandate of Section 5503(b) was not
sufficiently established. As noted above, there was no evidence indicating
how long the incident lasted.” Appellant’s Brief at 38.
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Appellant persisting in his conduct despite requests from multiple people to
stop. See, e.g., Majority at 3-4, citing Affidavit at 2 (“Ms. Hairston was telling
[Appellant] to calm down”; “[Appellant] continued screaming profanities on
the street with parents and children walking nearby and construction workers
present”; “Ms. Hairston continued to scream at [Appellant,] asking him to stop
behaving belligerently. He refused.”; “Officer Marculaitis gave [Appellant]
multiple order[s] to step out of the vehicle”). I dissent on this issue because
the record supports Appellant’s conviction of misdemeanor disorderly conduct
under §§ 5503(a)(1) and (b).
I would also affirm Appellant’s conviction of disorderly conduct under §
5503(a)(4), which provides that a person is guilty of disorderly conduct if he
“creates a hazardous or physically offensive condition by an act which serves
no legitimate purpose.”
Again, the Majority mentions that at “oral argument, the Commonwealth
indicated its agreement on this issue.” Majority at 10. The Majority also
recognizes that the Commonwealth equivocated on the issue in its brief. Id.
The Majority vacates Appellant’s conviction under § 5503(a)(4) based on its
finding that Appellant’s behavior “did not create a risk or hazard to anyone[,
and] there was no evidence that any person or property was placed in harm’s
way as a result of Appellant’s conduct[.]” Id. at 11. Because the record does
not support the Majority’s conclusion, I respectfully dissent.
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The trial court found Appellant “created a hazardous and offensive
barrier to the orderly process of municipal government.” Trial Court Opinion,
5/5/21, at 2. Viewing the evidence most favorably to the Commonwealth and
the trial court, I agree.
The Commonwealth stated there “is not a lot of relevant case law dealing
with 5503(a)(4),” and that it “defers to this Court’s decision as to whether
Appellant’s conduct violated 18 Pa.C.S.A. § 5503(a)(4).” Commonwealth Brief
at 20. However, the Commonwealth observed:
In the present case, causing a profane disturbance at a
construction site at 7:45 a.m., getting into a vehicle that is about
to be towed and refusing to exit it while knowing that the area had
to be cleared of cars so that construction work could begin,
causing police to use physical force, and then threatening police
officers with a veiled challenge to engage in physical
confrontation, created a hazardous condition.
Commonwealth Brief at 22.
The Commonwealth cited Commonwealth v. Love, 896 A.2d 1276 (Pa.
Super. 2006), which is instructive. In Love, this Court affirmed the
appellant’s convictions for disorderly conduct under § 5503(a)(4), stating that
the appellant “had jumped from his seat[] while disrupting [court] proceedings
. . . and publicly and angrily vocalized his disagreement with the court’s order.”
Love, 896 A.2d at 1286. We “emphasized that [a]ppellant’s actions occurred
in a crowded courtroom in which [others] were present.” Id. Significantly,
[The a]ppellant physically confronted [a deputy sheriff] in an
effort to prevent him from carrying out his official duties.
Inherent in the act of physically attempting to impede a law
enforcement officer from carrying out his or her official
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duties in the public arena is the risk of creating
a condition hazardous or physically offensive in nature.
Appellant created that risk here. As we have held, “[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) (quoting Commonwealth v. Lutes, 793 A.2d
949, 962 (Pa. Super. 2002)). Accordingly, we determine that the
evidence was sufficient to convict Appellant of disorderly conduct
under Section 5503(a)(4).
Id. (emphasis added).
The above reasoning supports the trial court’s determination that
Appellant “created a hazardous and offensive barrier to the orderly process of
municipal government.” Trial Court Opinion, 5/5/21, at 2. “Officer Di Cesare
was working construction detail in full uniform.” Majority at 2, citing Affidavit
at 2. “Officer Rosetti was also assigned to the construction detail (in full
uniform) … along with Officer Marculaitis and Chief Kokoski.” Id. at 3, citing
Affidavit at 2. Similar to Love, Appellant “physically confronted” law
enforcement to prevent the carrying out of official duties (i.e., facilitating the
towing of vehicles from a posted “No Parking” construction area), as Appellant
“continued screaming profanities” and “quickly opened the car door and
jumped in the driver’s seat,” refused requests to exit the car, and physically
resisted officers’ attempts to remove him. See id.
In addition to Love, we addressed § 5503(a)(4) more recently,
explaining:
Concerning § 5503(a)(4), a “‘hazardous condition’ is a
condition that involves danger or risk.” Commonwealth v.
Williams, 394 Pa.Super. 90, 574 A.2d 1161, 1164 (1990). “The
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dangers and risks against which the disorderly conduct statute
are directed are the possibility of injuries resulting from public
disorders.” Id.Commonwealth v. Mauz, 122 A.3d 1039, 1042 (Pa. Super. 2015) (emphasis
added).
Consistent with the foregoing, I would affirm Appellant’s conviction of
disorderly conduct under § 5503(a)(4).
In sum, I would affirm Appellant’s convictions of misdemeanor
disorderly conduct under 18 Pa.C.S.A. §§ 5503(a)(1) and (a)(4).
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