Com. v. Gruber, A.

J-S91035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANN LOUISE GRUBER :
:
Appellant : No. 475 MDA 2016
Appeal from the Judgment of Sentence February 17, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000887-2015,
CP-38-CR-0002024-2015
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 13, 2017
Appellant Ann Louise Gruber appeals from the judgment of sentence
entered in the Court of Common Pleas of Lebanon County on February 17,
2016, at which time she received an aggregate eighteen (18) month
nonreporting probationary sentence.1 Upon our review of the record, we
affirm.
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1
In light of the unusual nature of this matter, which shall be discussed infra,
and the trial court’s finding that Appellant did not pose any danger to society
aside from her threat to the decorum of meetings conducted by the Board of
Supervisors of Jackson Township, the trial court directed that her probation
be nonsupervised. As such, Appellant was not assigned a probation officer
and was not directed to comply with all of the rules governing probation. In
addition, a specific condition of Appellant’s probation required that she
(Footnote Continued Next Page)
* Former Justice specially assigned to the Superior Court.
J-S91035-16
The trial court aptly detailed the procedural and factual history herein
as follows:
I. PROCEDURAL BACKGROUND
Charges regarding [Appellant’s] conduct were filed to two
separate dockets. The first criminal complaint was filed on March
9, 2015 and set forth charges against [Appellant] for Disruption
of a Public Meeting and Disorderly Conduct- Unreasonable Noise.
It was alleged in the Complaint that [Appellant’s] behavior at a
Jackson Township Supervisors Meeting on January 5, 2015 was
disruptive and inappropriate and that such behavior prevented
the township from conducting its business. The second set of
charges were filed on October 19, 2015. These charges allege
that [Appellant] entered a private area of the Jackson Township
Municipal Building without permission and created a disturbance
at that location.
After both sets of charges were bound over to the Court of
Common Pleas, the Commonwealth sought to have the charges
consolidated. After a hearing that occurred on November 25,
2015, this [c]ourt ordered the consolidation of both dockets
lodged against [Appellant].
On December 4, 2015, the Commonwealth filed a Motion
for Trial on a Date Certain. The [c]ourt granted the
Commonwealth's Motion and trial was scheduled for December
16 and 17 of 2015. After hearing all of the testimony and
evidence presented on those dates, the jury returned a verdict of
guilty on all counts.
Sentencing was conducted on February 16, 2016. This
[c]ourt imposed a sentence of 18 months of unsupervised
probation on both docket numbers. As a special condition,
[Appellant] was given the ability to submit to Township Solicitor
_______________________
(Footnote Continued)
refrain from attending any meetings of the Jackson Township supervisors so
long as she is permitted to send a letter of seven hundred fifty (750) words
or less at least five days prior to each meeting to Paul Bametzreider, the
Jackson Township solicitor. Attorney Bametzreider shall ensure the
correspondence is read at the public portion comment of all meetings to the
extent it relates to legitimate Township business. N.T. Sentencing,
21/17/16, at 34-35.
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Paul Bametzreider, Esquire, a letter of 750 words or less at least
5 days prior to each township meeting. As long as [Appellant’s]
letter related to legitimate business of the township, Attorney
Bametzreider was to ensure that it be read at the public
comment portion of all Jackson Township meetings. If this was
accomplished, [Appellant] would not be permitted to attend any
meeting of the Jackson Township Supervisors or any meeting of
any governing body appointed by the Jackson Township
Supervisors to conduct business with Jackson Township.
[Appellant] hired new counsel. On March 16, 2016, Vincent
J Quinn, Esquire filed a, Notice of Appeal on behalf of
[Appellant]. Simultaneously with the filing of the Notice of
Appeal, [Appellant] also filed a Motion for Extension of Time to
file her Statement of Errors Complained of on Appeal pending
completion of a trial transcript. The [c]ourt granted said Motion.
[Appellant] filed pro se Post Sentence Motions on March
18, 2016. As a result of [Appellant’s] pro se motion, a Grazier
hearing was scheduled for April 20, 2016. During the Grazier
hearing, [Appellant] withdrew her Post Sentence Motions. She
chose to have Attorney Quinn continue his representation of her.
On May 25, 2016, [Appellant] filed her Concise Statement
of Errors Complained of on Appeal challenging the weight and
sufficiency of the evidence. She also complained about an
evidentiary ruling we made regarding a prior court proceeding.
Finally, she objected to a sentencing condition we imposed that
prevented [Appellant] from attending Jackson Township
meetings.
II. STATEMENT OF FACTS
Jackson Township is a Lebanon County municipality located
in Eastern Lebanon County. According to local records, the
Township has a population of 8,163 as of 2010. It is governed by
an elected Board of three supervisors.
Paul Bametzreider, Esquire (hereafter "BAMETZREIDER") is
and has been the Solicitor of Jackson Township since 1989. He
attends monthly Supervisors meetings. During these meetings,
bills are paid and official decisions are made. The function of the
Board Chairman is to preside over the meetings, recognize
people to speak and basically move the Board's agenda forward
in an efficient manner. (Trial N.T. 28). Notice of the meetings
must be published in the newspaper in order to let the public
know that a meeting will be conducted that citizens may wish to
attend. (Trial N.T. 30).
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During the meetings, time is set aside for public comment.
This allows residents and taxpayers of the township to address
the Board regarding matters which are currently at issue. In
Jackson Township, the time limit for each public comment is four
minutes. Depending on whether the matter is relevant to
Township business, the Chairman has the discretion to choose
not to hear the comments or extend or shorten the time frame
for each public comment. (Trial N.T.31 -32). If someone asks
questions during the meeting that are redundant or repetitive or
impertinent, the Chair does not have to answer them. (Trial N.T.
49).
Dean Moyer has been a Township Supervisor for 36 years.
(Trial N.T. 52). He testified that [Appellant] started attending
meetings sometime in 2011. (Trial N.T. 38; 52). [Appellant]
constantly questioned the Supervisors as to why they reached
certain decisions. If her questions were not answered in a way
she wanted them answered, she would become loud and
boisterous. (Trial N.T. 54). [Appellant] approached Mr. Moyer
about building a community building on a lot that was just
purchased by Jackson Township. When nothing came of
[Appellant’s] request, her behavior at the meetings gradually
changed. (Trial N.T.57).
At trial, a video of the February 18 public meeting was
played. In that video, [Appellant] approached the Supervisors
table and sat down. (Trial N.T. 63; 200). Mr. Moyer testified the
protocol is for the person speaking to sit at their table or stand
at their chair and not move out and walk all over the place and
make comments to people or make comments about the
meeting. (Trial N.T. 63). By way of a letter authored by Solicitor
Bametzreider dated February 27, 2014, [Appellant] was advised
of parameters for conduct at the meetings. The letter also
indicated that [Appellant] was not permitted to enter the
Jackson Township Offices unless invited to do so. (Trial N.T. 112-
113; 124; 128.)
Videos of public meetings were played for the jury. (See,
e.g., N.T. 112 re 4/21/14 meeting and N.T. 113 re 8/17/14
meeting.) These videos depicted the manner and tone of
[Appellant’s] voice, and actions. The August 17, 2014 video
depicted what occurred after the supervisors' meeting when
[Appellant] attempted to go into the Supervisors' office without
permission. (Trial N.T. 139 -140.)
A video of the January 5, 2015 meeting was also played
for the jury. This was the video that dealt with the charges
brought against [Appellant] for disruption of a public meeting.
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(See N.T. 132-133; Exh. 6.) This meeting was adjourned early
due to the behavior of [Appellant]. When public comment was
called for, [Appellant] started her comment by shouting . . .
"hear ye, hear ye, all citizens of Jackson Township." Thereafter,
[Appellant] so disrupted the meeting that legitimate business
could not be conducted. (Trial N.T. 135-137; 268.)
Trooper John Huffstutler is a member of Troop L of the
Pennsylvania State Police. He was dispatched to the Jackson
Township Building on February 18, 2013 as a result of a report
of a disturbance at the Township meeting. Upon arrival at the
Township building, Tpr. Huffstutler interviewed Township
Supervisors, Zoning Officer Gene Meade and various audience
members. All indicated that [Appellant] was disruptive. Tpr.
Huffstutler did not file charges but instructed [Appellant] to
change her mannerisms. (Trial N.T. 70-73).
Sergeant Mark Tice is also employed by the Pennsylvania
State Police. Part of Sgt. Tice's job requires him to attend
township meetings in Lebanon County where the State Police
provides primary coverage. (Trial N.T. 90). Sgt. Tice's first
involvement with [Appellant] was when he attended a meeting in
January of 2013. At some point after the February 18 hearing,
Sgt. Tice recalled having an informal meeting with [Appellant]
about meetings and behavior. During this meeting, he provided
[Appellant] with a copy of the Pennsylvania Crimes Code that
referenced Disruption of Public Meetings and Disorderly Conduct
and also some paperwork dealing with case law. (Trial N.T. 90-
91). Sgt. Tice was dispatched to the Jackson Township Building
on May 20, 2013. He indicated that upon his arrival, the meeting
had been placed in recess and that people were talking back and
forth in a second smaller conference room. (Trial N.T. 92). Sgt.
Tice proceeded to speak with Chairman Tom Houtz and
Bametzreider to find out what had taken place. (Trial N.T. 93).
Upon entering the meeting room, the first person Sgt. Tice heard
was [Appellant]. After allowing [Appellant] to finish her
conversation with someone, he asked her to step out of the
room. (Trial N.T. 94). Sgt. Tice explained to [Appellant] that the
Supervisors had made a request that she be removed from the
meeting as she was being so disruptive that business could not
be conducted. [Appellant] told Sgt. Tice that she wished to go
back into the room to obtain witnesses for her defense and that
she was not the one being disruptive. [Appellant] became loud in
the vestibule, and Sgt. Tice asked her to step outside in the
parking lot. Even though Sgt. Tice told [Appellant] that she was
not permitted to go back into the meeting, [Appellant] persisted
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in her effort to be disruptive. Sgt. Tice therefore placed
[Appellant] under arrest and removed her from the meeting.
(Trial N.T. 95-98).
[Appellant] hired Attorney Scott L. Grenoble, Esquire to
represent her. On September 17, 2013, a meeting was
conducted at the law firm of Buzgon Davis. Present at this
meeting were Attorney Grenoble, [Appellant], Chairman Tom
Houtz and Bametzreider. [Appellant’s] behavior was discussed
and she was provided with documentation from her attorney
indicating that if she persisted in disrupting meetings, criminal
charges could result. (Exh. 2; Trial N.T. 99; 104 -105; 235-236.)
Sgt. Tice was again dispatched to the Jackson Township
Building on April 21, 2014 due to an alleged disruption of their
meeting by [Appellant] (Trial N.T. 102.) After viewing a video
from that date, Sgt. Tice declined to file charges. (Trial N.T.
103.)
Trooper Noll was also dispatched to the Jackson Township
Building on January 5, 2015 for a reported disturbance. Upon his
arrival, the meeting had already been adjourned. There were
people outside of the entrance and some people were inside the
front door in a waiting area. The front door to the building was
locked. Tom Houtz and several other people indicated that
[Appellant] had gone too far and that her actions caused the
meeting to be adjourned. (Trial N.T. 147-149; 180-181; 257).
Upon interviewing various people, Trp. Noll learned that
[Appellant] had forced her way into the supervisors' office. (Trial
N.T. 157). Trp. Noll testified that one of the charges related to
the January 5, 2015 [sic] involved very loud unreasonable noise
or yelling by [Appellant]. (Trial N.T. 154).
Trooper Justin Summa of the Pennsylvania State Police
testified that he was completing paperwork in the parking lot of
the Jackson Township on August 17. [Appellant] approached
him. She seemed irate at what was happening. She told Trp.
Summa that he would be receiving a call about her actions after
the township meeting had adjourned. (Trial N.T. 158). Trp.
Summa learned that Bametzreider and Supervisor Deck had
walked back to the supervisors' office in order to discuss
something privately and that [Appellant] had followed them. As
the supervisors were attempting to close the door to the office,
[Appellant] was standing on the threshold of the door.
[Appellant] was told that the meeting was a private one and that
she was not allowed to enter. [Appellant] became very upset and
entered the room while yelling at the supervisors. (Trial N.T.
165-166; 170-171; 175-176; 208-209; 243).
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During the course of the trial, a tape was played from a
public meeting during which [Appellant] made reference to a
court proceeding that she won. Thereafter, Bametzreider replied
"no you did not." A dispute exists about the type of hearing that
was being referenced. We were told by counsel that two court
proceedings pertaining to [Appellant] had been adjudicated prior
to the meeting in question. One was a civil proceeding that was
resolved in favor of [Appellant], and another involved a
summary offense where [Appellant] was found guilty.
Apparently, yet another dispute was addressed at an informal
mediation process brokered by [Appellant’s] then-attorney, Scott
Grenoble. At trial, both [Appellant] and the Commonwealth
wanted to present evidence about the nature of the court
proceedings; [Appellant] wanted to prove that the civil dispute
was resolved in her favor to support her claim that "I won" and
the Commonwealth wanted to present evidence of the other
proceeding to corroborate Bametzreider's statement, "no, that is
not right."
At trial, [Appellant’s] counsel sought to admit testimony
regarding the proceeding that was resolved in [Appellant’s]
behavior [sic]. The Commonwealth objected. We ultimately ruled
that if one side wished to present evidence regarding one prior
proceeding, then the other side would be permitted to present
evidence regarding the other prior proceeding. Based upon that
ruling, [Appellant] chose not to enter that arena of inquiry.
Because [Appellant] raised her First Amendment right of
free speech as a defense to the charges, we instructed the jury
about that right. We afforded the following instruction:
I want to talk a little bit now about the First
Amendment and the right of all citizens to free
speech. Not surprisingly to me, the defense attorney
emphasized in his closing argument the concepts of
free speech. The prosecutor emphasized in her closing
arguments the need for decorum in a public meeting.
There is a tension between free speech and the
need for decorum in a public meeting. There is a
tension between those concepts.
John Adams, as part of the Constitutional
Convention of 1787, described juries as the
conscience of the community. That is what you are.
That is why you are here. In some ways you are going
to have to decide, given the facts of this case,
whether this is something where free speech is
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elevated over decorum, or whether decorum is
elevated over free speech. That is going to be your
call.
Let me tell you a little bit about both concepts.
Every one of us was taught in Civics class all
Americans enjoy a right to free speech protected by
the First Amendment of the United States
Constitution.
Every single one of us may express opinions
without fear of being arrested because someone else
may disagree with our opinion. That is part of the First
Amendment. That is part of our right as American
citizens.
The United States Supreme Court has described
the right of free speech with the following language: A
function of free speech under our system of
government is to invite dispute. It may indeed best
serve its high purpose when it creates dissatisfaction
with conditions as they are, or even stirs people to
anger. It may strike at prejudices and preconceptions
and have profound unsettling effects as it presses for
acceptance of an idea.
That is why freedom of speech though not
absolute, is protected against censorship or
punishment. There is no room under our constitution
for a more restrictive view, for the alternative would
lead to standardization of ideas either by Legislatures,
courts or dominate political or community groups.
As a very general proposition, no one can be
convicted if [sic] a crime simply because they were
exercising their First Amendment right of free speech.
With that being said, and with that being
recognized, the right of free speech is not absolute.
The law recognizes that some speech, such as a
threat of violence, can actually harm other people.
Other speech such as yelling "fire" in a crowded
auditorium can create a risk of harm for the public.
Recently Pennsylvania (sic) highest court ruled that
schools are able to expel students or [sic] make text
or create a website that is threatening to teachers and
other students in that school.
With respect to public meetings conducted by
elected officials, individuals enjoy a right of free
speech, but it is not absolute.
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Citizens have a right to be present at a public
meeting. They have a right to communicate opinions.
However, reasonable restriction can be imposed on
this right.
Once again, in 2009 the United States Supreme
Court declared elected officials may impose
restrictions on speech provided they are reasonable
and viewpoint neutral.
In particular, the law permits governmental
entities to impose rules governing public comment.
Those rules can limit the manner of comment and the
duration of comment.
Our courts have even determined that when an
individual violates the rules that govern a public
meeting in terms of reasonableness and duration of
comments, they can then be ejected from that
meeting.
Let me summarize: We all have a right to free
speech. It's an important right that we enjoy as
Americans. You cannot be punished for the content of
our opinions. However, the right of free speech is not
absolute. With respect to a public meeting, elected
officials cannot prevent public comment. They cannot
edit its contents, but the[y] can impose reasonable
limits. Those reasonable limits can include the
duration of comment so long as those limits are,
"viewpoint neutral."
If [Appellant’s] conduct in this case violates the
rules imposed on the manner and duration of public
comment, and if [Appellant’s] behavior fits all of the
elements of the offenses as I have outlined them for
you, then you can find [Appellant] guilty.
On the other hand, if you find that [Appellant]
was asserting her First Amendment right of free
speech in a manner that comported with the rules
established by the governmental entity, or if you find
that the rules established by the public entity
infringed on her right to provide reasonable comment,
or were designed to censor a particular viewpoint,
then you can find that her First Amendment right of
free speech was violated. If you so find, the
Defendant cannot be convicted.
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No objection was proffered by [Appellant] to the charge as
outlined above. (Trial N.T. 399). Based upon those instructions,
based upon the testimony and evidence presented, and based
upon the videotapes that were played in open court, the jury
determined that [Appellant] was guilty of all charges.
Trial Court Opinion, filed 6/23/16, at 1-12.
In her brief, Appellant presents the following Statement of Question[s]
Involved:
A. Whether the evidence was insufficient to support the
verdict of the jury finding [Appellant] guilty of “Disrupting
Meetings and Processions” in violation of 18 Pa.C.S.A. § 5508?
B. Whether the evidence was insufficient to support the
verdict of the jury finding [Appellant] guilty of Disorderly
Conduct in violation of 18 Pa.C.S.A. § 5503(a)(2)?
C. Whether the evidence was insufficient to support the
verdict of the jury finding [Appellant] guilty of Disorderly
Conduct in violation of 18 Pa.C.S.A. §§ 5503(a)(1)?
D. Whether the trial judge erred when he ruled that if
[Appellant] testified that she triumphed in a civil action filed
against her by the Jackson Township Supervisors that the
prosecution would be permitted to introduce evidence of
[Appellant’s] plea of nolo contendere to an unrelated charge of
summary Disorderly Conduct?
E. Whether the lower court imposed an illegal sentence when
it made a specific condition of probation that [Appellant] not be
permitted to attend meeting of the Board of Supervisors of
Jackson Township which condition impermissibly burdened her
right to engage in political speech in violation of the First
Amendment to the United States Constitution.
Brief for Appellant at 7 (some capitalization omitted). As Appellant’s first
three claims challenge the sufficiency of the evidence to sustain her
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convictions, we shall consider them together. In reviewing such claims, we
employ a well-settled standard of review:
[W]e examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence. Commonwealth v.
Doughty, 126 A.3d 951, 958 (Pa. 2015).
Commonwealth v. Lloyd, 2016 WL 6962127, at *1 (Pa.Super. Nov. 29,
2016).
Appellant first maintains the Commonwealth’s evidence was
insufficient to prove beyond a reasonable doubt that she possessed the
necessary intent under Pa.C.S.A. § 5508 to disrupt or prevent the meeting
of the Board of Supervisors of Jackson Township on January 5, 2015. Brief
for Appellant at 16-17. The crime of “Disrupting Meetings and Processions,”
is defined as follows:
A person commits a misdemeanor of the third degree if, with
intent to prevent or disrupt a lawful meeting, procession or
gathering, he disturbs or interrupts it.
18 Pa.C.S.A. § 5508.
While she acknowledges that a review of the videotape of the January
5, 2015, meeting reveals she raised her voice and “lacked civility,” and that
the trial court’s characterization of her behavior as obnoxious was a fair one,
Appellant reasons her becoming “loud and abrasive is not synonymous with
intending to disrupt or prevent the meeting.” Id. at 18-19. We disagree.
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As the trial court notes in its Pa.R.A.P. 1925(a) Opinion, the jury both
heard testimony regarding and viewed the videotapes of Appellant’s
behavior at numerous public meetings, including that which occurred on
January 5, 2015.2 Appellant’s behavior prevented the Jackson Township
supervisors from conducting business on the agenda and forced them to
adjourn the meeting prematurely. In addition, several Jackson Township
residents who were present at the meeting testified that Appellant’s behavior
prevented them from meaningfully participating in their local government.
See trial Court Opinion, filed 6/23/16, at 15 citing N.T. Trial, 12/16-17/15,
at 178, et seq.; 256, et seq.; 258 et seq.; 261, et seq.; 264, et seq. Our
review of the testimony in a light most favorable to the Commonwealth as
the verdict winner supports the jury’s finding that the Commonwealth
established Appellant intentionally disturbed the Jackson Township meeting
on January 5, 2015; therefore, this claim must fail.
Appellant further posits the Commonwealth’s evidence to convict her
of two counts of Disorderly Conduct was insufficient because it failed to
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2
We note that while Appellant has provided us with two discs containing
audio of the January 5, 2015, meeting as well as audio from others and
some still photos, we were unable to access a video recording of any
meeting. Appellant had the responsibility ensure that the record forwarded
to this Court contained those documents necessary to allow a complete and
judicious assessment of the issues raised on appeal. Commonwealth v.
Walker, 878 A.2d 887, 888 (Pa.Super. 2005). Notwithstanding, Appellant's
failure to include a video recording of the meetings in the certified record
does not hamper our review, for we were able to listen to the exchanges
and review testimony of various individuals regarding the same.
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prove that she acted with an intent to cause public annoyance,
inconvenience or alarm or that she made unreasonable noise. To obtain
convictions for the charged counts of Disorderly Conduct, the
Commonwealth must have established that:
(a) . . . with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk
thereof, [one]:
(1) engages in fighting or threatening, or in violent or
tumultuous behavior;
(2) makes unreasonable noise[.]
18 Pa.C.S.A. §§ 5503(a)(1), (2). The aforementioned statute further
provides that “ ‘public’ means affecting or likely to affect persons in a place
to which the public or a substantial group has access,” including “any
premises which are open to the public.” 18 Pa. C.S.A. § 5503(c).
Appellant asserts that the Disorderly Conduct conviction pursuant to
18 Pa.C.S.A. § 5503(a)(1), which arose following Appellant’s actions on
August 17, 2015, in the office of one of the township supervisors, was not
supported by sufficient evidence. Appellant reasons that because she
engaged in an argument with Attorney Bametzreider and Supervisors Clyde
Deck and Tom Houtz in a private office in the township building, and the
Commonwealth did not present testimony from any individuals who had
heard the confrontation, there was “no public disorder.” Id. at 21-22. In
addition, Appellant contends Section 5503(a)(1) requires a defendant to
engage in “fighting or threatening, or in violent or tumultuous behavior,” and
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her act of crossing the threshold to the supervisor’s office and raising her
voice in an effort to discuss a matter with him was not a threatening or a
violent act. Id. at 22-23.
Appellant’s position that it is uncertain as to whether other individuals
heard the confrontation ignores Subsection (c), for the evidence presented
at trial clearly supported a finding that Appellant’s actions met the “public”
requirement under the statute. The record reveals Mr. Deck’s office was
located in the Jackson Township Municipal Building, a place open to the
general public, and the doorway to the office connected the lobby to the
office. N.T. Trial, 12/16-17/15 at 177. As a meeting had just adjourned,
citizens were in the vicinity and close enough to overhear Appellant. This
supports a finding that Appellant’s words and actions affected or were likely
to affect those individuals while they were in a public place. 18 Pa.C.S.A. §
5503(c). See also Commonwealth v. Reynolds, 835 A.2d 720,732
(Pa.Super. 2003) (holding that creating a risk of disorder is as criminal as
actually causing disorder).
Also, Appellant’s actions fall within the plain meaning of “tumultuous”
under the statute. Appellant admits that as Attorney Bametzreider testified,
she burst into Mr. Deck’s private office uninvited and ignored his repeated
requests to leave. She further admits that when Mr. Houtz entered the
office, she began shouting at him. Indeed, she does not dispute Mr. Houtz’s
testimony that Appellant had attempted to provoke him to engage in
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physical contact with her when she urged him repeatedly to “go ahead hit
me; I know you want to hit me.” Brief for Appellant at 21-22 citing N.T.
Trial, 12/16-17/15, at 165, 176-77, 245. In addition, Mr. Houtz explained
Appellant confronted him in an area adjacent to the public lobby where two
citizens were seated in the meeting room. Id. at 246-47.
Appellant further acknowledges that she left the office only after
repeated warnings from Messers. Bametzreider and Houtz. Brief for
Appellant at 22 citing N.T. Trial, 12/16-17/15, at 245. These admissions,
taken together with trial testimony that Appellant was aggressive, shouting
and speaking more loudly than normal while individuals were in the vicinity
of the building, support a conclusion that Appellant engaged in tumultuous
behavior and created a disturbance on August 17, 2015, in a public arena.
Finally, the testimony regarding and the recordings of Appellant’s
behavior support a finding that she had the requisite mens rea under 18
Pa.C.S.A. 5503(a). The Commonwealth may meet the statute's specific
intent requirement by showing that the Defendant recklessly (e.g.,
consciously) disregarded a substantial and unjustifiable risk that his/her
actions would cause public annoyance, inconvenience, or alarm.
Commonwealth v. Troy, 832 A.2d 1089, 1094 (Pa.Super. 2003).
Recklessness can also include a gross deviation from a reasonable person's
standard of conduct in the same situation. Id. at 1094. As such, we find
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the jury had sufficient evidence to convict Appellant under Subsection (a)(1)
of the statute.
Appellant also reasons that while she became “somewhat loud” when
she intended to engage the supervisors in a discussion during the public
meeting on January 5, 2015, an inference cannot be drawn that she
intended to cause public annoyance, inconvenience or alarm or that she was
reckless under 18 Pa.C.S.A. § 5503(a)(2). Brief for Appellant at 19-20.
Appellant avers that “[w]hile some might consider [her] comments to be
impolite, they did not rise to the level of criminal conduct.” Id. at 20.
Pursuant to Subsection (a)(2), this Court uses a two-part test to
determine whether a person's actions constitute disorderly conduct
(unreasonable noise). Commonwealth v. Maerz, 879 A.2d 1267, 1269
(Pa.Super. 2005). We will look at the content of a person's speech only to
infer the requisite mens rea (intent or recklessness). Id. “Ultimately,
however, what constitutes the actus reus of “unreasonable noise” under the
disorderly conduct statute is determined solely by the volume of the speech,
not by its content.” Id. (emphasis in original). See also Commonwealth
v. Forrey, 108 A.3d 895, 898 (Pa.Super. 2015). “Pennsylvania law defines
unreasonable noise as ‘not fitting or proper in respect to the conventional
standards of organized society or a legally constituted community.’” Id.
(citations omitted). One’s presence in public “is merely necessary, but not
alone sufficient, to convict of disorderly conduct. The Commonwealth must
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also prove the particular act requirement, that the noise here was
unreasonable, i.e., inconsistent with neighborhood tolerance or standards.”
Id. at 899 (citation omitted).
As has been noted previously, the record contains testimony of
numerous witnesses that the January 5, 2015, meeting was adjourned
prematurely due to the extreme disruption Appellant had caused. The jury
had the benefit of viewing the entire episode, and this Court has heard the
same. Upon doing so, we find sufficient evidence existed from which the
jury properly found Appellant made unreasonable noise and intentionally had
engaged in behavior not befitting of what is proper and acceptable at a
public meeting. No relief is due.
Appellant next challenges the trial court’s evidentiary ruling regarding
prior court proceedings in which she had been involved. Our standard of
review of the trial court's evidentiary rulings is as follows:
Questions concerning the admission of evidence are left to the
sound discretion of the trial court, and we, as an appellate court,
will not disturb the trial court's rulings regarding the admissibility
of evidence absent an abuse of discretion. An abuse of discretion
is not merely an error of judgment, but is rather the overriding
or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence or record. If in reaching a
conclusion the trial court overrides or misapplies the law,
discretion is then abused and it is the duty of the appellate court
to correct the error.
Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa.Super. 2016) (citations
and internal quotation marks omitted).
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Appellant references an exchange between Attorney Bametzreider and
her that had been captured on video on January 5, 2015, and shown to the
jury at trial. At that time, Appellant blurted out that she had been victorious
at a prior hearing, at which time Attorney Bametzreider corrected her by
stating: “No, that is not correct.” N.T. Trial, 12/16-17/15, at 316. A
discussion was held at sidebar following which it became apparent to the
trial court that Appellant had been involved in a civil proceeding resolved by
a Magisterial District Judge in Appellant’s favor and also was convicted of a
summary disorderly conduct charge.
The trial court determined that were Appellant to choose to present
evidence pertaining to the proceeding resolved in her favor, the
Commonwealth would be permitted to present evidence of the summary
charges brought against her which resulted in a conviction. N.T. Trial,
12/16-17/15, at 315. The trial court indicated it rendered this decision
cognizant of the fact that the jury hearing a brief exchange on the videotape
which implicated prior litigation, such that both Appellant and Attorney
Bametzreider may have subjectively believed their respective positions at
the January 5, 2015, meeting had been the accurate one. Trial Court
Opinion, filed 6/23/16, at 19-20. In response to the trial court’s ruling,
Defense counsel stated, “[m]y plan is not to bring it in any further, Judge.”
N.T. Trial, 12/16-17/15, at 315-16.
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Ultimately, Appellant did not present testimony pertaining to any prior
charges. Therefore, other than the brief reference on the videotape to a
previous proceeding, the jury did not hear details concerning either the prior
civil or criminal matter in which she had been involved. Nevertheless,
Appellant argues herein that the reference was “irrelevant and highly
prejudicial” in that “the Commonwealth opened the door to [Appellant’s]
testimony by introducing that portion of the tape into evidence at trial” and
“wanted the evidence introduced and made a conscious decision to introduce
the entire tape.” Brief for Appellant at 24-25.
Preliminarily, we note that to preserve a claim of error for appellate
review, a party must make a specific, timely objection to the alleged error
before the trial court at the appropriate stage of the proceedings.
Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super. 2011), appeal
denied, 612 Pa. 696, 30 A.3d 486 (2011); Pa.R.A.P. 302(a). Failure to raise
a proper objection results in a waiver of the underlying issue on appeal. See
Charleston, supra. Instantly, Appellant did not object at trial to the
Commonwealth’s playing of the video from the January 5, 2015, public
meeting in its entirety. In addition, Appellant did not specifically object to
the trial court’s determination to permit the Commonwealth to present
evidence of her nolo contendere plea were she to testify pertaining to her
favorable court ruling; rather, counsel stated an intention not to reference
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the prior court proceedings. N.T. Trial, 12/16-17/15, at 313. Accordingly,
Appellant has waived his fourth issue for review on appeal.3
Lastly, Appellant maintains the trial court’s condition of probation
prohibiting her from attending meetings of the Jackson Township
Supervisors so long as Attorney Bametzreider reads letters penned by her
during the public comments portion of the meeting renders her sentence
illegal as such provision “serves no rehabilitative purpose” and
“impermissibly burdens her rights to free political speech” under the First
Amendment to the United States Constitution. Brief for Appellant at 26-27.
We must first determine whether Appellant’s challenge of this
condition imposed on her probation constitutes a challenge to the legality of
her sentence or whether it is, instead, a challenge to the discretionary
aspects of sentencing. Commonwealth v. Wilson, 11 A.3d 519, 524
(Pa.Super. 2010), order vacated in part, 620 Pa. 251, 67 A.3d 736 (2013).
A challenge to the legality of a sentence may be raised as a matter of right,
is non-waivable, and may be entertained so long as the reviewing court has
jurisdiction. Id. citing Commonwealth v. Robinson, 931 A.2d 15, 19–20
(Pa.Super. 2007) (en banc). This Court may sua sponte review an illegal
sentence. Id. citing Commonwealth v. Muhammed, 992 A.2d 897, 903
____________________________________________
3
Even if Appellant had not waived this issue, we would conclude it merits no
relief, as the trial court opinion properly disposed of the issue. See supra;
see also Trial Court Opinion, filed 6/23/16, at 18-20.
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(Pa.Super. 2010). Conversely, when one questions the discretionary aspects
of her sentence, an appeal is not guaranteed as of right. Id. citing
Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.Super. 2006)
(explaining that to appeal the discretionary aspects of sentencing an
appellant must have (1) preserved such claims below and (2) provided a
Rule 2119(f) statement which raises a substantial question for our review in
her appellate brief).
This Court repeatedly has held that a challenge to a condition of
probation involves a matter specifically committed to the jurisdiction of the
sentencing court under the Sentencing Code, 42 Pa.C.S. § 9754(b) and
generally constitutes a challenge to the discretionary aspects of his sentence
rather than to its legality. See e.g., Commonwealth v. Houtz, 982 A.2d
537, 538 (Pa. Super. 2009) (challenge to probation condition “challenges the
discretionary aspects of sentencing, not the legality of the sentence
imposed”). A challenge to the legality of a sentence, however, “is essentially
a claim that the trial court did not have jurisdiction to impose the sentence
that it handed down.” Commonwealth v. Cappetlini, 690 A.2d 1220, 1226
(Pa.Super. 1997) (quoting Commonwealth v. Catanch, 581 A.2d 226, 228
(Pa.Super. 1990)). This Court previously determined that a challenge to the
condition of one’s probation that she have no contact with her boyfriend or
his family during her two years of probation on the grounds that it unduly
restricted her liberty constituted a challenge to the discretionary aspects of
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her judgment of sentence. Commonwealth v. Koren, 646 A.2d 1205,
1208 (Pa.Super. 1994). This Court also has held that the trial court’s
placing a condition upon a defendant’s probation that he not possess or use
a computer, own a cell phone or PDA with Internet capabilities, or otherwise
access the internet presented a challenge to the discretionary aspect of his
sentence. Commonwealth v. Hartman, 908 A.2d 316, 319 (Pa.Super.
2006).
In light of the foregoing, despite Appellant’s contrary characterization,
her final claim challenges the discretionary aspects of sentencing, not the
legality of the sentence the trial court imposed. Accordingly, she is not
entitled to an appeal of her sentence as of right, but rather to an allowance
of appeal at the discretion or this Court. 42 Pa.C.S.A. § 9781(b).
When an appellant challenges the discretionary aspects of her
sentence, this Court will utilize a four-part test to determine:
(1) whether appellant has filed a timely notice of appeal, see Pa.
R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa. R.Crim. P. [720]; (3) whether appellant's brief
has a fatal defect, Pa. R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa. Cons.Stat.Ann. §
9781(b).
Commonwealth v. Moury, 992 A.2d 162, 270 (Pa.Super. 2010) (internal
citations omitted).
Appellant filed a timely notice of appeal; however, while she filed a
post-sentence motion pro se on March 23, 2016, wherein she stated her
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sentence “should be modified to be reinstated to attending any meetings of
the Jackson Township Boards. . . ,” Appellant was represented by counsel at
that time of that filing. The trial court scheduled a Grazier4 hearing;
however, in its Order entered on April 6, 2016, the court found that such
hearing was not necessary as Appellant was represented by counsel who
requested that Appellant’s pro se post-sentence motion be withdrawn and
indicated that Appellant would be pursuing the counseled appeal he had filed
on her behalf. Trial Court Order, filed 4/26/16, at ¶ C. The trial court
proceeded to order, inter alia, that the post-sentence motion was dismissed
without prejudice. Id. at ¶ 2. A timely, counselled post-sentence motion
challenging the discretionary aspects of Appellant’s sentence was never filed,
nor did Appellant object at sentencing. In addition, her brief does not
contain the requisite Pa.R.A.P. 2119(f) statement. Accordingly, we find
Appellant has waived her final challenge on appeal.5
____________________________________________
4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
5
Even if we were to address Appellant’s challenge to the discretionary
aspects of her sentence and find that it raised a substantial question on
appeal, we would afford no relief. In imposing an order of probation, a court
may require a defendant “[t]o satisfy any other conditions reasonably
related to the rehabilitation of the defendant and not unduly restrictive of his
liberty or incompatible with his freedom of conscience.” 42 Pa.C.S.A. §
9754(c)(13). The trial court noted its “sentencing decision was an
individualized response to the unique behavior of Appellant” whom the court
acknowledged was generally a “law abiding citizen.” Notwithstanding, the
trial court felt it needed to both protect the citizens of Jackson Township by
ensuring their elected representatives would be able to perform their duties
and to facilitate Appellant’s rehabilitation “by removing her from the
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
_______________________
(Footnote Continued)
environment where she consistently caused problems.” Trial Court Opinion,
filed 6/23/16, at 23-24. In an effort to respect Appellant’s passion toward
and knowledge of Jackson Township’s political issues, the trial court believed
it unfair to her to prevent her from appearing at Township meetings and
“completely silence” her. As such, in an effort to ensure her views were
heard by the supervisors as well as other citizens who respected her point of
view, the trial court crafted a sentence that permitted her thoughts to be
relayed in writing by the Jackson Township solicitor. Id. at 24-25. In doing
so, the trial court indicated it believed that its “sentencing scheme
effectuated justice in a situation that was equally sad and unique.” Id. at
25. We agree, and would have found that based upon the circumstances
presented herein, the creative condition the trial court set on Appellant’s
probation did not completely curtail her First Amendment rights, was
reasonably related to her rehabilitation, and was not unduly restrictive of her
liberty as required under 42 Pa.C.S.A. § 9754(c)(13). Accordingly, we would
have found no abuse of the sentencing court's discretion.
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