Com. v. Mauz, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GARY ALAN MAUZ
Appellant No. 2068 EDA 2014
Appeal from the Judgment of Sentence June 20, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-SA-0000956-2013
BEFORE: BOWES, DONOHUE, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015
Appellant, Gary Alan Mauz, appeals from the trial court’s June 20,
2014 judgment of sentence imposing a $50 fine and court costs. After
careful review, we vacate the judgment of sentence.
Police cited Appellant on April 25, 2013 for disorderly conduct (using
obscene language and creating a hazardous or physically offensive
condition1) based on an encounter between Appellant and his neighbor,
Victoria Battistini (“Battistini”) the previous day. The trial court summarized
the pertinent facts:
At the de novo trial, [Battistini], testified that on April 24,
2013, at approximately 10:00 p.m., she was present at her
home located at 882 Euclid Avenue, Warrington, Bucks County.
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1
18 Pa.C.S.A. § 5503(a)(3) and (4).
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At that time, she was setting up a fire in a fire pit in her
backyard with her boyfriend and his two brothers. She noticed
noises on the outside of the fence surrounding her residence
and, as a result, she walked over to investigate. She relayed
that her neighbor, [Appellant], was walking over towards his
residence uttering words that were initially unclear. She
recalled:
I couldn’t really understand what exactly he
was saying, but I know that it was some language …
calling me like a whore and stuff. And I kind of–I
didn’t really know what was going on, and I went to
… walk over. By the time I got over to the fence, I
had saw [sic] the figure walking up to the house that
was my neighbors that live diagonal. Then I
recognized who it was…
Because of lights on her back porch and a light post by
[Appellant’s] front door, she was able to clearly view [Appellant]
initially walking towards his residence, then standing at the front
door of his residence over her fence, which was diagonal from
her own residence. [Appellant] repeatedly directed statements
toward [Battistini] such as [Battistini’s] “fat mom humps [her]
dog” and “whore.” Furthermore, she stated that the statements
made her feel “uncomfortable and scared” and this was
exacerbated by the fact that her mother was on vacation and
she was home alone.
Trial Court Opinion, 9/20/14, at 2-3 (record citations omitted).
Appellant pled guilty to disorderly conduct under § 5503(a)(3)
(obscene language or gesture) before a Magisterial District Judge on October
29, 2013. Appellant filed a timely summary appeal on November 26, 2013,
and the trial court conducted a de novo trial on June 20, 2014. The trial
court, sitting as finder of fact, found Appellant guilty under § 5503(a)(4)
(hazardous or physically offensive condition) as a summary offense, and
imposed sentence as set forth above. This timely appeal followed.
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Appellant argues the Commonwealth produced insufficient evidence to
sustain a conviction under § 5503(a)(4). The following standard governs
our review of a challenge to the sufficiency of the evidence:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
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.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013).
Section 5503 reads:
§ 5503. Disorderly conduct.
(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:
[…]
(4) creates a hazardous or physically offensive condition
by any act which serves no legitimate purpose of the actor.
[…]
(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.
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18 Pa.C.S.A. § 5503(a)(4), (c).
“The offense of disorderly conduct is not intended as a catchall for
every act which annoys or disturbs people; it is not to be used as a dragnet
for all the irritations which breed in the ferment of a community.”
Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005)
(quoting Commonwealth v. Hock, 728 A.2d 943, 947 (Pa. 1999)). “It has
a specific purpose; it has a definite objective, it is intended to preserve the
public peace.” Id. (emphasis added). Indeed, our courts have repeatedly
emphasized that the goal of § 5503 is to protect the public.
Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (“Certainly,
Section 5503 is aimed at protecting the public from certain enumerated
acts.”); Hock, 728 A.2d at 946 (“The cardinal feature of the crime of
disorderly conduct is public unruliness which can or does lead to tumult and
disorder.”).
In Commonwealth v. Forrey, 108 A.3d 895 (Pa. Super. 2015), for
example, the defendant cussed at police officers while no one else was
present. Id. at 897. The record reflected only that one officer could hear
the defendant’s remarks from ten feet away. Id. Therefore, the defendant
could not have created unreasonable noise (per § 5503(a)(2)) because no
member of the public was present to hear it. Id. at 899. Likewise, in
Maerz, the defendant yelled obscenities across the street at a neighbor she
believed was shining a flashlight into her home. Maerz, 879 A.2d at 1268.
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We concluded the defendant’s action did not jeopardize “the public peace.”
Id. at 1271. “[The defendant’s] single outburst was brief, was only as loud
as a person of her presumably ordinary physical abilities can shout, occurred
in the evening prior to ordinary sleeping hours, and prompted neither civil
unrest nor a single neighbor to seek police intervention.” Id. In making
statements that were “briefly irritating”, the defendant did not commit
disorderly conduct. Id.
On the other hand, in Commonwealth v. Roth, 531 A.2d 1133 (Pa.
Super. 1987), appeal denied, 541 A.2d 1137 (Pa. 1988), this Court held that
the defendants, in threating to enter a church during a worship service and
dump scrap iron on an altar, acted with intent to cause public annoyance,
inconvenience, or alarm. Id. at 1136-37. “The occurrences of that day were
steeped in an emotionally charged atmosphere. … Those who attended were
frightened for their safety as well as for the welfare of the young and elderly
members present.” Id. at 1137.
Concerning § 5503(a)(4), a “’hazardous condition’ is a condition that
involves danger or risk.” Commonwealth v. Williams, 574 A.2d 1161,
1164 (Pa. Super. 1990). “The dangers and risks against which the
disorderly conduct statute are directed are the possibility of injuries resulting
from public disorders.” Id. In Williams, this Court held the defendant did
not create a hazardous condition by walking silently through a parking lot in
his underwear. Id. “His conduct was neither boisterous nor confrontational.
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He did not threaten any residents of the apartment house.” Id. The
defendant committed only a “minor act of vandalism” on a car in the parking
lot. Id.
In contrast, the defendants in Roth created a hazardous condition
because altercations could have occurred. Roth, 531 A.2d at 1137. A
physically offensive condition, within the meaning of § 5503(a)(4),
“encompasses direct assaults on the physical senses of members of the
public.” Williams, 574 A.2d at 1164. “A defendant may create such a
condition if she sets off a ‘stink bomb’, strews rotting garbage in public
places, or shines blinding lights in the eyes of others.” Id. Likewise, a
physically offensive condition can occur where the defendant invades the
physical privacy of the victim. Id. (citing Commonwealth v. Young, 535
A.2d 1141 (Pa. Super. 1988) (holding that two male defendants created a
physically offensive condition by entering a bathroom stall and confronting a
woman sitting on a toilet), appeal denied, 544 A.2d 961 (Pa. 1988)). The
Williams Court concluded the defendant did not create a physically
offensive condition even though one person observed him walking through
the parking lot in his underwear. Id. at 1165.
Our review of the instant record reveals the following. Appellant was
in his yard when he shouted the obscene remarks to Battistini, who was in
her yard at the time with her boyfriend and several other people. N.T. Trial,
6/20/14, at 13-16, 21. A five or six foot high fence separated the two
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properties. Id. at 14. The record does not reflect that anyone other than
Battistini heard Appellant’s remarks,2 nor does the record reflect that
Appellant’s remarks could have reached anyone not present in the yard of
Battistini or Appellant.
Since the both the speaker and recipient of the offensive remarks were
present in respective private yards, we believe the evidence is insufficient to
establish that Appellant acted with the intent to cause public annoyance,
inconvenience or alarm. Cf. Young, 535 A.2d at 1142-43 (holding a
dormitory restroom that served fifty female students and their guests was a
public place despite the presence of only the perpetrators and the victim at
the time of the offense). We cannot conclude Appellant acted with the intent
to create public annoyance when he made his offensive remarks in a private
setting and the remarks apparently were discernible only to Battistini.
Furthermore, we do not believe Appellant recklessly created a risk of a
hazardous or physically offensive condition under § 5503(a)(4). Appellant’s
conduct created no risk of “injuries resulting from public disorders.”
Williams, 574 A.2d at 1164. Here, Appellant made a few brief, offensive
remarks to Battistini and then retreated into his home. The two were
separated by a fence, and the record fails to reflect that anyone else heard
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2
The Commonwealth’s only witnesses were Battistini and the investigating
police officer.
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Appellant’s statements. The encounter ended only seconds after it began.
N.T. Trial, 6/20/14, at 24-26.
We also do not believe Appellant’s conduct created a physically
offensive condition, as Appellant did not engage in a direct assault on
Battistini’s physical senses, as described in Williams. Williams, 574 A.2d
at 1164. The Williams Court described offensive odors or blinding light as
examples of physically hazardous conditions. Appellant also did not invade
Battistini’s physical privacy, as the encounter occurred when she was
present in her yard and visible to Appellant from his own yard.
Here, Appellant’s conduct implicates only Battistini’s sense of sound.
We therefore turn to Maerz and Forrey for persuasive authority, as those
cases were decided under § 5503(a)(2) (“unreasonable noise”). 18
Pa.C.S.A. § 5503(a)(2). In Maerz, the defendant shouted across the street
at her neighbor: “you goddamn motherfucking son of a bitch, what the hell
are you doing, get that light off my house[.]” Maerz, 879 A.2d at 1268. As
noted above, the Maerz Court found the evidence insufficient because,
among other things, the outburst was brief and did not cause a disturbance
or “upset the public peace.” Id. at 1271. In Forrey, the defendant
shouted: “all you fucking cops are communists just like Obama,” and “this
fucking country sucks,” and “you better watch your back.” Forrey, 108
A.3d at 897. The Commonwealth failed to prove the defendant created a
level of noise inconsistent with neighborhood standards, especially since the
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defendant uttered the remarks in a remote location. Id. at 898. Similarly,
in the instant case, Appellant’s remarks were brief and did not cause public
unrest or create a risk thereof. We therefore conclude the record does not
contain sufficient evidence to support a finding that Appellant created a
physically offensive condition.3
For all of the foregoing reasons, we conclude the record, read in a light
most favorable to the Commonwealth, does not contain sufficient evidence
to support Appellant’s conviction under § 5503(a)(4).4 We therefore vacate
the judgment of sentence.
Judgment of sentence vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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3
In reaching this decision, we certainly do not condone Appellant’s
behavior. We find Appellant’s comments reprehensible but not criminal.
4
Appellant argues the trial court erred in permitting the Commonwealth to
proceed under § 5503(a)(4), rather than § 5503(a)(3), to which Appellant
pled guilty at the summary hearing. Given our disposition, we need not
address this argument.
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