Com. v. Kirchner, S.

J-S28020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHEN T. KIRCHNER :
:
Appellant : No. 1873 MDA 2018
Appeal from the Judgment of Sentence Entered October 17, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-SA-0000289-2018
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 27, 2019
Stephen Kirchner appeals from the judgment of sentence imposed
following his conviction for the summary offense of disorderly conduct.1
Kirchner argues that evidence he made a hand gesture, in the form of a gun,
was insufficient to prove that he created a hazardous or physically offensive
condition. He further contends that the evidence was insufficient to establish
the requisite mens rea, and the trial court should have dismissed the charge
on the ground that his conduct was de minimis. We affirm.
On June 7, 2018, Kirchner was issued a citation for disorderly conduct
as a summary offense. He was found guilty in district court, and he appealed.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 5503(a)(4).
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The trial court held a trial de novo. The relevant facts were largely undisputed,
and were as follows.
Josh Klingseisen was mulching in his backyard when Kirchner and
Klingseisen’s neighbor, Elaine Natore, walked through an alley that runs
behind Klingseisen’s yard to Natore’s residence. Kirchner stopped, made eye
contact with Klingseisen, and then made a hand gesture at him imitating the
firing and recoiling of a gun.
The incident was video-recorded by Klingseisen,2 who had previously
installed six security cameras at his home due to ongoing confrontations
between him and Natore. At the time of the incident, Natore had a “no contact”
order against Klingseisen. Klingseisen testified at trial that he felt “[e]xtremely
threatened” when Kirchner made the gun gesture at him. Trial Court Opinion,
filed January 7, 2019, at 2 (quoting N.T., 10/17/18, at 7).
Klingseisen’s neighbor, Yvonne Rodriguez, saw the incident from her
front porch. Rodriguez testified she saw Kirchner turn towards Klingseisen and
“put his finger up like he was going to shoot him.” N.T. at 9. Rodriguez stated
she felt “[i]nsecure” after seeing the gesture, and called 911. Tr. Ct Op. at 2;
N.T. at 10.
Kirchner testified in his own defense, and admitted that he made the
gesture. However, he said he did so after Klingseisen “gave [him] the finger
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2 The video recording was introduced as evidence at trial, but was not included
in the certified record.
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with both hands.” N.T. at 13, 16. The court found Kirchner guilty, and imposed
a $100 fine and court costs.
Kirchner appealed, raising the following issue:
Was the evidence in this case sufficient to sustain a conviction of
the summary criminal offense of Disorderly Conduct; in particular,
was the evidence sufficient to establish that making a hand
gesture, albeit in the rough form of a gun, is a hazardous or
physically offensive condition, and further that the defendant had
the necessary mens rea of intent or recklessness to cause public,
rather than just individual or private, inconvenience, annoyance,
or alarm, or in the alternative, was the defendant’s conduct de
minim[i]s?
Kirchner’s Br. at 4 (italics added). We will address the issue in three parts.
A challenge to the sufficiency of the evidence requires us to determine
whether the evidence supports every element of the crime charged beyond a
reasonable doubt. Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa.Super.
2015). We do not assess the credibility of witnesses or the weight of the
evidence, both of which are within the sole purview of the finder of fact. Id.
As sufficiency of the evidence is a question of law, our standard of review is
de novo. Id. Our scope is limited to a review of the record evidence in the
light most favorable to the Commonwealth. Id.
I. Hazardous or Physically Offensive Conduct
Kirchner argues first that the evidence presented at trial was insufficient
to sustain a conviction for the summary offense of disorderly conduct, because
the evidence did not establish that making a hand gesture in the form of a
gun creates a hazardous or physically offensive condition. Kirchner argues that
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such a gesture is similar to actions that were found insufficient to support
disorderly conduct convictions in Commonwealth v. Mauz, 122 A.3d 1039
(Pa.Super. 2015), Forrey, 108 A.3d at 897, and Commonwealth v. Maerz,
879 A.2d 1267 (Pa.Super. 2005). Kirchner also argues his actions no more
support a conviction for disorderly conduct than any other hand gesture, as
his hand could never be mistaken for an actual firearm.
Kirchner was convicted under 18 Pa.C.S.A § 5503(a)(4), which provides
that “[a] person is guilty of disorderly conduct if, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [the
person] . . . creates a hazardous or physically offensive condition by any act
which serves no legitimate purpose of the actor.” 18 Pa.C.S.A. § 5503(a)(4).
The statute 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.” Id. at § 5503(c). Disorderly conduct is a
summary offense unless “the intent of the actor is to cause substantial harm
or serious inconvenience, or if he persists in disorderly conduct after a
reasonable warning or request to desist,” in which case the offense is graded
as a third-degree misdemeanor. Id. at § 5503(b).
The offense of disorderly conduct “is not intended as a catchall for every
act which annoys or disturbs people[.]” Maerz, 879 A.2d at 1269. Rather,
“[t]he dangers and risks against which the disorderly conduct statute are
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directed are the possibility of injuries resulting from public disorders.”
Commonwealth v. Williams, 574 A.2d 1161, 1164 (Pa.Super. 1990).
Specifically, a “hazardous condition” under subsection 5503(a)(4) “is a
condition involving danger or risk,” including a condition that creates the risk
of an altercation. Williams, 574 A.2d at 1164 (quoting Commonwealth v.
Roth, 531 A.2d 1133, 1137 (Pa.Super. 1987)).
We conclude that there was sufficient evidence that Kirchner’s act of
mimicking his shooting Klingseisen created a hazardous condition as it risked
an altercation. Williams, 574 A.2d at 1164. Despite Natore’s no-contact order
against Klingseisen and the ongoing rift between them, Kirchner, while
accompanying Natore, approached Klingseisen in his own backyard, created a
gun-like hand gesture, pointed it at Klingseisen, and made a recoil motion as
if to suggest he had shot him. This act served no legitimate purpose, and
recklessly risked provoking a dangerous altercation.
The cases Kirchner cites do not compel a different result. In Maerz and
Forrey, we determined that the remarks made by the defendants were
insufficient to support convictions under subsection 5503(a)(2), which applies
when a person “makes unreasonable noise.” See 18 Pa.C.S.A. § 5503(a)(2);
Forrey, 108 A.3d at 897-99; Maerz, 879 A.2d at 1269-71. They are thus
inapplicable to the instant analysis. In Mauz, the defendant made insulting
comments through his fence to his neighbor, such as calling her a “whore,”
before retreating into his home; no one else present could hear the remarks;
and the remarks could not have been heard beyond the two properties. See
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Mauz, 122 A.3d at 1040, 1042. We held that the evidence was insufficient for
a conviction under subsection 5503(a)(4) because the defendant’s remarks
did not create a risk of a hazardous condition by creating a risk of injury. Id.
at 1042-43.
Here, in contrast, two other persons—Natore and Rodriguez—witnessed
Kirchner make his hand gesture to Klingseisen. In addition, given the history
of the parties involved, as evidenced by Natore’s no-contact order against
Klingseisen and the six cameras Klingseisen had in place, Kirchner’s act risked
an altercation or other public disturbance. We thus conclude the evidence was
sufficient for the conviction for disorderly conduct.
II. Mens Rea
Kirchner argues next that there was insufficient evidence that he
possessed the requisite mens rea to support his conviction for disorderly
conduct. Kirchner argues that because his conduct was directed at a lone
individual, he lacked intent to cause “public inconvenience, annoyance or
alarm,” as required by the statute. Kirchner cites Commonwealth v. Coon,
695 A.2d 794 (Pa.Super. 1997), in support.
Kirchner’s argument is meritless. We have specified that a reckless
disregard of creating a risk of public inconvenience, annoyance, or alarm is
sufficient, “even if the [defendant’s] intent was to send a message to a certain
individual, rather than to cause public inconvenience, annoyance, or alarm.”
Maerz, 879 A.2d at 1269. Here, Kirchner acted with a reckless disregard of
creating a risk of public alarm, as evidenced by the fact that an eyewitness on
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a neighboring property contacted 911 because Kirchner’s actions caused her
to feel insecure.
Coon offers Kirchner no relief. In Coon, the defendant was charged with
disorderly conduct as a third-degree misdemeanor under subsection 5503(b).
We concluded that a conviction under that subsection required proof that the
defendant “intended to cause substantial harm to the public or serious public
inconvenience by his actions,” and the evidence against the defendant did not
satisfy that standard. Coon, 695 A.2d at 798-99 (emphasis in original). Here,
however, Kirchner was convicted of disorderly conduct as a summary offense,
which requires the lesser mens rea of recklessness. Moreover, Coon was
abrogated by Commonwealth v. Fedorek, 946 A.2d 93 (Pa. 2008). In
Fedorek, the Pennsylvania Supreme Court held that for the offense to be
graded as a misdemeanor under subsection 5503(b), the Commonwealth need
only offer proof that the defendant acted with the intent “to cause substantial
harm or serious inconvenience,” as stated by the statute, not substantial
public harm or serious public inconvenience, as we had held in Coon. Id. at
101.
III. De Minimis Conduct
Kirchner’s final argument is that the evidence was insufficient for
conviction because his conduct was de minimis. Kirchner cites Section 312 of
the Crimes Code, which states that the court shall dismiss the prosecution if
it finds the defendant’s conduct:
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(1) was within a customary license or tolerance, neither expressly
negatived by the person whose interest was infringed nor
inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to
be prevented by the law defining the offense or did so only to an
extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be
regarded as envisaged by the General Assembly or other authority
in forbidding the offense.
18 Pa.C.S.A. § 312(a). We review the refusal to dismiss under Section 312 for
abuse of discretion. Commonwealth v. Lutes, 793 A.2d 949, 963 (Pa.Super.
2002).3
This issue is also meritless. “An offense alleged to be de minimis in
nature should not be dismissed where either harm to the victim or society in
fact occurs.” Id.; accord Commonwealth v. Toomer, 159 A.3d 956, 960
(Pa.Super. 2017). In other words, the court does not abuse its discretion in
refusing to dismiss the charges where the conduct of the offender actually
caused public alarm, annoyance, or inconvenience. Lutes, 793 A.2d at 963.
Here, the trial court explained in its Pa.R.A.P. 1925(a) opinion that it did
not find the conduct at issue to be de minimis because it “did, in fact, cause
public alarm, annoyance or inconvenience.” Tr. Ct. Op. at 6. The court noted
that Klingseisen felt extremely threatened and Rodriguez felt insecure enough
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3 But see Commonwealth v. Raban, 31 A.3d 699, 702 (Pa.Super. 2011),
aff’d, 85 A.3d 467 (Pa. 2014) (treating question as sufficiency of the evidence
and employing de novo standard). The discrepancy among the cases
regarding the standard of review does not affect our disposition because we
would affirm the trial court’s refusal to dismiss under Section 312 under either
standard.
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following her observation of the incident that she called emergency services.
Id. The court concluded that Kirchner’s conduct “caused the very harm sought
to be prevented by the law defining the offense.” Id. We discern no abuse of
discretion in this analysis.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2019
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