Com. v. McGrath, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUDY MCGRATH A/K/A JO ANN
FONZONE,
Appellant No. 1716 EDA 2014
Appeal from the Judgment of Sentence March 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-MD-00000061-2013, MC-51-CR-
00043169-2010, Nos. CP-51-CR-0008156-2013
BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 01, 2015
Appellant, Judy McGrath a/k/a Jo Ann Fonzone, appeals pro se from
the judgment of sentence entered following her conviction of disorderly
conduct. We affirm.
We summarize the history of this case as follows. On October 6, 2010,
Appellant attended a Philadelphia Phillies playoff game at Citizens Bank Park
in Philadelphia. During the game, Appellant’s behavior caused a disturbance
in her seating section. Eventually, a security guard, a supervisor, and
uniformed police were summoned to deal with Appellant. Appellant was
subsequently removed from her row, taken to the top of the seating section,
and told she could remain at the top of the seating section in the handicap
area if she wanted to remain standing, but that she could not go back to her
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seat. When Appellant walked away towards her seat, an officer touched
Appellant’s shoulder, and Appellant made a swinging motion at the officer.
Appellant was handcuffed, taken to the police room and then to a holding
cell. While she was in the holding cell, Appellant telephoned 911. Appellant
contended that she suffered injuries from the incident at the hands of the
police. Appellant has characterized herself as the victim in the incident.
Appellant was charged with the summary offense of disorderly
conduct. In spite of the fact that she had court-appointed counsel, Appellant
filed numerous pro se documents with the trial court. Ultimately, on October
2, 2013, Appellant appeared before the court of common pleas for a de novo
trial. Due to various delays, the trial was completed on March 19, 2014,1
and Appellant was convicted of one count of disorderly conduct. The trial
court imposed a sentence of credit for time served and a $300.00 suspended
fine. Appellant then filed this pro se appeal. Appellant filed a ten-page
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1
As the trial court explained:
Trial was held before this Court on two (2) dates, October
2, 2013 and March 19, 2014. In the interim, there were
numerous listings of this matter which addressed issues and
motions raised by [Appellant] herself. Due to procedural
deficiencies, such as the filing of various motions despite having
counsel of record or delays due to [Appellant’s] request for
discovery not relevant to the defense of this case, this matter
languished through the Court system.
Trial Court Opinion, 1/29/15, at 2-3.
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Pa.R.A.P. 1925(b) statement. The trial court has filed a twenty-seven-page
1925(a) opinion.
Appellant presents the following issues for our review:
1. WHETHER THERE WAS INSUFFICIENT EVIDENCE FOR THE
LOWER COURT’S DECISION AND [APPELLANT’S]
CONSTITUTIONAL RIGHTS WERE VIOLATED THROUGHOUT
PROSECUTION SINCE OCTOBER 2010 BY PROSECUTORIAL AND
POLICE MISCONDUCT INCLUDING NEGLIGENT INVESTIGATION
OF THE INCIDENTS OF OCTOBER 6, 2010[?]
2. WHETHER THE LOWER COURT ERRED WHEN IT DENIED
[APPELLANT] A SCHEDULED HEARING ON HER CITIZEN
CRIMINAL COMPLAINT CP-51-MD-61 AS THE INJURED VICTIM[?]
3. WHETHER THE LOWER COURT ERRED WHEN IT DISALLOWED
[APPELLANT] TO REPRESENT HERSELF AND THEREFORE SHE
HAD DISLOYAL AND INEFFECTIVE DEFENSE COUNSEL PRIOR TO
AND WHEN SHE WAS NOT CO-REPRESENTING OR SELF-
REPRESENT[I]NG[?]
Appellant’s Brief at 2.
As a prefatory matter, we observe that appellate briefs must materially
conform to the briefing requirements set forth in the Pennsylvania Rules of
Appellate Procedure. See Pa.R.A.P. Chapter 21. When a party’s brief fails
to conform to the Rules of Appellate Procedure and the defects are
substantial, an appellate court may, in its discretion, quash or dismiss the
appeal pursuant to Pa.R.A.P. 2101. Id.
As we have often stated, “Although this Court is willing to liberally
construe materials filed by a pro se litigant, pro se status confers no special
benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d 496,
498 (Pa. Super. 2005) (citing Commonwealth v. Lyons, 833 A.2d 245,
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252 (Pa. Super. 2003)). “To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent, assume that his
lack of expertise and legal training will be his undoing.” Adams, 882 A.2d
at 498 (citing Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super.
1996)).
While the defects in Appellant’s brief are numerous and warrant
dismissal of the appeal, we decline to do so in this instance. Instantly, with
regard to Appellant’s first issue, we will limit our review to a determination
of whether the Commonwealth presented sufficient evidence to support
Appellant’s conviction of disorderly conduct.
When reviewing a challenge to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the Commonwealth as
verdict winner, giving the prosecution the benefit of all reasonable inferences
to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d
226, 231 (Pa. Super. 2007) (citation omitted). “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.” Id. (quoting Commonwealth v. Brewer, 876 A.2d
1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not
establish guilt to a mathematical certainty, and it may sustain its burden by
means of wholly circumstantial evidence. Id. Moreover, this Court may not
substitute its judgment for that of the factfinder, and where the record
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contains support for the convictions, they may not be disturbed. Id. Lastly,
we note that the finder of fact is free to believe some, all, or none of the
evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.
Super. 2006).
The Pennsylvania Crimes Code defines disorderly conduct, in relevant
part, as follows:
(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;
***
(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. § 5503 (emphasis added).
Our Supreme Court has held that an individual may be convicted of
disorderly conduct “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 person.” Commonwealth v. Fedorek, 946
A.2d 93, 100 (Pa. 2008). With respect to the element of intent for the crime
of disorderly conduct, this Court has stated the following:
The mens rea requirement of Section 5503 demands proof that
appellant by her actions intentionally or recklessly created a risk
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[of causing] or caused a public inconvenience, annoyance or
alarm. The specific intent requirement of this statute may be
met by a showing of a reckless disregard of the risk of public
inconvenience, annoyance, or alarm, even if the appellant’s
intent was to send a message to a certain individual, rather than
to cause public inconvenience, annoyance, or alarm.
Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005)
(internal citations and quotations omitted). “Intent can be proven by direct
or circumstantial evidence; it may be inferred from acts or conduct or from
the attendant circumstances.” Commonwealth v. Faulk, 928 A.2d 1061,
1070 (Pa. Super. 2007) (citation omitted).
In addition, in Commonwealth v. Young, 535 A.2d 1141 (Pa. Super.
1988), this Court held that based upon the statutory definition of “public” in
section 5503(c), a location retains its “public” status even when there are
limitations on access that deny entry to some members of the general
public, as long as a “substantial group” of people are permitted access. Id.
at 1142-1143. In Young, we held that the women’s restroom located in a
coed college dormitory remained “public” despite obvious restrictions on
access, since a substantial group (including women residents and their
female visitors) had access. Id. at 1143. We further noted that while there
were access restrictions to the dormitory itself, i.e., to nonresidents, these
were no different than access restrictions to apartment houses, which are
nevertheless specifically defined in section 5503(c) as “public” for purposes
of the disorderly conduct statute.
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In addressing the sufficiency of the evidence, the trial court offered the
following analysis after setting forth large portions of the trial transcript:
In this case, under a totality of the circumstances, the
evidence was sufficient to establish that [Appellant] intended to
cause public inconvenience, annoyance or alarm, as required to
support her conviction for disorderly conduct after having been
warned by both [a stadium security guard] and a police officer
that she must sit down when appropriate. Instead, she
continued her boisterous behavior, used foul language,
maintained she could do as she wishe[d] in a loud voice, as she
flailed her arms around, all under the belief that paying for her
ticket gives her carte blanche to act in any manner which she
saw fit. [Appellant’s] actions required repeated intervention by
Phillies’ staff. She inconvenienced the fans behind her by
standing and also in her aisle, as they had to leave their seats to
permit [the security guard] access to [Appellant] who told him
[to] “go fuck himself” and then continued her version of cheering
until she was removed.
Granted, this action took place at a baseball game where
cheering, standing, yelling and various noises are to be
expected, however, it is only appropriate at certain times when
events occurring during the game warrant the same. [The
security guard] testified that at the point that he had confronted
[Appellant], nothing exciting was occurring and the other fans
around the area were simply seated and were watching the
game.
[Appellant’s] actions were not appropriate under the
circumstances at the time and were unreasonable, annoying and
served no legitimate purpose and which justified her removal by
refusing to heed the advice of stadium personnel to follow the
rules in place. Further, despite being requested to cease acting
in the manner which required her to be approached in the first
place, she continued to do so. [Appellant’s] own words that she
“could do whatever she wants” shows that she believed she was
free to act in any manner she so chose, even if such actions
were annoying to those around her. Clearly, such is not the case
in a public venue such as this.
The evidence was clearly sufficient to support the verdict
as it established each material element of the crime charged and
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the commission thereof by [Appellant] beyond a reasonable
doubt. Commonwealth v. Aguado, 760 A.2d 1181, 1185
(Pa.Super.2000) (“[T]he facts and circumstances established by
the Commonwealth need not be absolutely incompatible with the
defendant’s innocence”).
Trial Court Opinion, 1/29/15, at 24-26.
We have thoroughly reviewed the certified record before us on appeal,
and we agree with the trial court’s determination that the Commonwealth
presented sufficient evidence to establish that Appellant committed the
crime of disorderly conduct. Accordingly, Appellant’s contrary claim lacks
merit.
In her second issue, Appellant argues that her private criminal
complaint was inappropriately handled by the trial court. Essentially,
Appellant claims that, as an injured victim, the trial court erred in denying
her a hearing on her private complaint.
Pennsylvania Rule of Criminal Procedure 506 governs private
complaints and states, in pertinent part, that an application for a private
criminal complaint should be submitted to “an attorney for the
Commonwealth, who shall approve or disapprove it without unreasonable
delay.” Pa.R.Crim.P. 506(A). If disapproved, “the attorney shall state the
reasons on the complaint form and return it to the affiant.” Pa.R.Crim.P.
506(B)(2). Furthermore, if the complaint is disapproved, “the affiant may
petition the court of common pleas for review of the decision.” Id.Likewise, this Court has explained “[i]t is well-settled that, if the
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Commonwealth disapproves a private criminal complaint, the complainant
can petition the Court of Common Pleas for review, and the trial court must
first correctly identify the nature of the reasons given by the district attorney
for denying the complaint.” In re: Private Criminal Complaint of John
O’Brien Rafferty, 969 A.2d 578, 581 (Pa. Super. 2009). The trial court’s
standard of review is dependent upon the reasons provided by the district
attorney for the disapproval. Commonwealth v. Cooper, 710 A.2d 76, 80
(Pa. Super. 1998).
Therefore, it is axiomatic that following the denial of a private
complaint, the affiant must take particular steps to appeal the decision of
the district attorney’s office in disapproving the private complaint. The
affiant cannot attempt to challenge the decision of the district attorney’s
office before the trial court in a separate matter, i.e., criminal proceedings
filed against the affiant. Consequently, we are left to conclude that the trial
court did not err in refusing to indulge Appellant’s attempt to review the
decision of the district attorney regarding her private criminal complaint
during the proceedings pertaining to the instant criminal charges filed
against Appellant. Rather, pursuant to the rules of criminal procedure and
applicable case law, Appellant should have challenged the decision of the
district attorney in a separate proceeding. Hence, we discern no error on
the part of the trial court and conclude that Appellant’s issue lacks merit.
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In her final issue, Appellant argues that her previous attorneys were
somehow ineffective in their representation of Appellant. However, such
claims cannot be addressed in this direct appeal.
Ineffective assistance of counsel claims are generally deferred to
collateral review proceedings, with the exception of certain circumstances
not present in the instant case. See Commonwealth v. Arrington, 86
A.3d 831, 856-857 (Pa. 2014) (explaining deferral of ineffective assistance
of counsel claims to collateral proceedings). To be eligible for such relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9446, a
petitioner must be currently serving a sentence of imprisonment, probation,
or parole. 42 Pa.C.S. § 9543(a)(1)(i). As Appellant is appealing a summary
conviction, for which she was sentenced to pay a fine, we find that she is not
eligible for relief under the PCRA.
In Commonwealth v. Straub, 936 A.2d 1081 (Pa. Super. 2007), we
held that a defendant convicted of a summary offense and not incarcerated
or placed on probation is not entitled to litigate claims of ineffective
assistance of counsel on direct appeal even though he may not be eligible for
PCRA relief. Id. at 1083. The Straub Court stated the following:
In light of the [Commonwealth v.] O’Berg[, 880 A.2d
597 (Pa. 2005)] majority’s express disapproval of the
jurisprudential “short sentence” exception to [Commonwealth
v.] Grant[, 813 A.2d 726 (Pa. 2002)], and particularly in light of
Justice Castille’s cogent, thoughtful and well-reasoned
concurring opinion in O’Berg, we conclude that, in the case at
Bar, Appellant’s claims of ineffective assistance of counsel may
not be reviewed on direct appeal before this Court.
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Id. at 1083-1084. Consequently, the law does not provide Appellant with an
avenue to pursue her ineffective assistance of counsel claims.
Commonwealth v. Reigel, 75 A.3d 1284, 1288-1289 (Pa. Super. 2013).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
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