Com. v. Sanders, K.

J-A22026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KELLY SANDERS
Appellant No. 2150 MDA 2014
Appeal from the Judgment of Sentence December 3, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-SA-0000264-2014
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED AUGUST 28, 2015
Appellant Kelly Sanders appeals from the December 3, 2014 judgment
of sentence1 entered in the Lancaster County Court of Common Pleas,
following her bench trial conviction for disorderly conduct.2 We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The court’s sentencing order is not included in the certified record. In her
notice of appeal, Appellant refers to the docket, which reflects the court’s
December 3, 2014 order. In her brief, Appellant quotes the following from
the order, but does not provide a copy:
…find her guilty of the offense of Disorderly Conduct
beyond a reasonable doubt, imposing a fine of $300 plus
costs.
Appellant’s Brief at 2.
2
18 Pa.C.S.§ 5503(a)(2).
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On May 26, 2014,3 Lancaster City police officers responded to a call for
a domestic disturbance from an apartment on 139 College Avenue. Officer
William Hamby could hear a woman yelling when he exited his police car.
He and Officer Jay Hatfield approached the apartment from which the yelling
and the sound of glass breaking was emanating.
When the officers knocked on the door, the yelling stopped. The
officers looked through the window and found the apartment to be
“destroyed” with a broken table, chairs, guitar and shattered glass. Police
continued to knock on the door, and Appellant eventually emerged from the
bathroom. Officers told her to come to the window, but she refused. She
told them they were at the wrong apartment. She began to walk away from
the officers, and Officer Hatfield tased her. She fell to the ground. The
police officers entered the apartment, placed Appellant in handcuffs, and
brought her outside to be checked by Emergency Medical Services (“EMS”)
personnel, pursuant to police policy. Appellant was wearing only a long t-
shirt and underwear, and her less than two-year-old child was asleep in the
apartment at this time. While EMS was evaluating Appellant, police officers
called Children and Youth Services (“CYS”) to attend to the child.
____________________________________________
3
The trial court 1925(a) Opinion mistakenly lists the date of the offense as
March 26, 2014. The docket and notes of testimony, however, reflect
otherwise.
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Appellant began screaming at the EMS employees. Officers issued
approximately six warnings to Appellant to lower her voice, but she
continued to scream and tell EMS personnel that she did not want them to
examine or evaluate her. She screamed obscenities at them, and neighbors
came outside to see the commotion. Officer Hatfield thought Appellant was
drunk because she had glassy eyes and smelled of alcohol. Appellant said
that she had consumed only one drink around 5:00 p.m. Eventually, EMS
gave up on examining Appellant and left. Appellant was issued a citation for
disorderly conduct.
The court conducted a hearing on December 3, 2014, at which Officer
Hatfield, Officer Hamby, and Appellant testified. Appellant claimed she was
only protesting to EMS personnel touching her against her will. She
submitted that any mother would have objected when removed from her
sleeping child. She contended that she was sleeping when officers arrived
and that there had been no yelling in the apartment. She claimed the
apartment was messy because she and her boyfriend were in the process of
moving, but she denied anything being broken. The court found the officers’
testimony credible, and discredited Appellant’s testimony. The court
convicted Appellant of disorderly conduct and fined her $300.00.
On December 18, 2014, Appellant timely filed a notice of appeal. The
next day, the court ordered her to file a concise statement of errors
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complained of on appeal pursuant to Pa.R.A.P. 1925(b), and she timely
complied on January 5, 2015.
Appellant raises the following issues for our review:
DID [APPELLANT’S] ACTIONS IN PROTESTING LOUDLY
ABOUT BEING EXAMINED BY EMS PERSONNEL AGAINST
HER WISHES CONSTITUTE UNREASONABLE NOISE UNDER
THE CIRCUMSTANCES?
DID THE COMMONWEALTH [PRESENT] SUFFICIENT
EVIDENCE THAT [APPELLANT’S] YELLING PRODUCED THE
LEVEL OF NOISE THAT WAS INCONSISTENT WITH
NEIGHBORHOOD TOLERANCE OR STANDARDS?
WERE [APPELLANT’S] ACTIONS AND WORDS IN
PROTESTING THE POLICE ACTIONS AGAINST HER
PROTECTED UNDER HER RIGHT TO FREE SPEECH?
Appellant’s Brief at 4.
We shall address Appellant’s first two issues together. Appellant
challenges the sufficiency of the evidence for her disorderly conduct
conviction. She claims that she did not yell to cause public inconvenience or
recklessly create a risk of it. She claims that she yelled for the legitimate
purpose of telling the EMS personnel that she did not want treatment and
she did not want them to offensively touch her. She argues that it was
reasonable to yell considering that she had been tased for no reason, while
unarmed in her apartment and having just woken up, and that she was now
in a parking lot, wearing only a t-shirt and underwear, while her baby was
alone in the apartment. She concludes that her protests did not constitute
an unreasonable noise under the circumstances, and the Commonwealth
failed to produce sufficient evidence that her yelling was inconsistent with
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the neighborhood tolerance or standards to support her conviction for
disorderly conduct. We disagree.
“Whether sufficient evidence exists to support the verdict is a question
of law; thus, [an appellate court’s] standard of review is de novo and [its]
scope of review is plenary.” Commonwealth v. Patterson, 91 A.3d 55, 66
(Pa.2014) cert. denied sub nom. Patterson v. Pennsylvania, 135 S. Ct.
1400 (2015). When examining a challenge to the sufficiency of evidence,
we employ the following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
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Disorderly conduct is defined by statute:
§ 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:
* * *
(2) makes unreasonable noise
* * *
18 Pa.C.S. § 5503.
Further, this Court has observed:
“The mens rea requirement of Section 5503 demands
proof that appellant by her actions intentionally or
recklessly created a risk [of causing] or caused a public
inconvenience, annoyance or alarm.” Commonwealth v.
Gilbert, 4674 A.2d 284 ([Pa.Super.]1996). 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. See Commonwealth v. Kidd, 442
A.2d 826 ([Pa.Super.]1982).
In disorderly cases based on one’s making unreasonable
noise, this Court has looked to language content only to
infer whether the speaker intended to cause public
annoyance, alarm, etc. 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.
Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa.Super.2005).
“Pennsylvania law defines unreasonable noise as ‘not fitting or proper
in respect to the conventional standards of organized society or a legally
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constituted community.’” Commonwealth v. Forrey, 108 A.3d 895, 898
(Pa.Super.2015) (quoting Commonwealth v. Gilbert, 674 A.2d 284, 287
(Pa.Super.1996)). This Court examined the unreasonable noise necessary
to constitute disorderly conduct in Forrey, supra:
[A] defendant’s single, profane outburst yelled at a
neighbor across the street at 9:45 p.m. was deemed
insufficient unreasonable noise to constitute disorderly
conduct. [Commonwealth v. Maerz, 879 A.2d 1267,
1270 (Pa.Super.2005)]. The Commonwealth failed to show
that the outburst jeopardized the public peace, or that the
noise was “absolutely inconsistent with the residential
neighborhood’s tolerance levels or standards. No
evidence was offered as to why the public peace in this
particular neighborhood could not survive a passing, albeit
very loud, vocal noise during evening hours.” Id. at 1271
(emphasis added).
Similarly, in [Commonwealth v. Gilbert, 674 A.2d 284
(Pa.Super.1996)], we found insufficient evidence of
unreasonable noise where the defendant “openly
disagreed” with a police officer who was towing his
neighbor’s car. Gilbert, 674 A.2d at 285–86. At best, the
record reflected that the defendant spoke to the officer and
yelled across the street to his neighbor. Id. at 287. “The
arresting officer testified that half the neighbors eventually
came out to the street to view the ‘ruckus.’ However, no
evidence was produced that that the level of noise was
inconsistent with neighborhood tolerance or
standards.” Id. (emphasis added).
In contrast, in Commonwealth v. Alpha Epsilon Pi, 540
A.2d 580, 583 ([Pa.Super.]1988), we affirmed a disorderly
conduct citation of a college fraternity where noise from its
late-night partying could be heard fifty yards away from
the fraternity house.
Given the time of day, the officer’s ability to hear the
noise from a distance of fifty yards during a warm,
summer night, and the initial complaint to the officer
which was made by a resident living at least one
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block away, we cannot say that the trier of fact could
not have found the noise to have been unreasonable.
Id.
Forrey, 108 A.3d at 898-99.
Here, the Commonwealth presented sufficient evidence to support
Appellant’s disorderly conduct conviction. Specifically, two police officers
testified that they responded to a call from neighbors for a domestic
disturbance. Upon arriving at the scene, police officers could hear yelling
and breaking glass from their police vehicles. After Appellant had been
tased and brought to the parking lot for evaluation by EMS personnel,
Appellant began to scream obscenities. Several neighbors came out of their
homes to watch Appellant yell. Although there was testimony that neighbors
could have come outside to see the ambulance and police cars, the court did
not have to believe this was the only reason people exited their homes. See
Hansley, supra.
Further, a police officer testified that he could hear the yelling when he
returned to his car, about ¼ block away from the scene. Police officers
asked Appellant to lower her voice several times, but she refused and
seemed intoxicated. She yelled profanities and eventually EMS personnel
determined they could not evaluate Appellant and left. Although Appellant
testified that her yelling was reasonable under the circumstances of the
situation, the court, as the trier of fact, was free to believe all, some, or
none of the evidence presented. We cannot say that the trier of fact could
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not have found the noise to have been unreasonable. See Forrey, supra;
Alpha Epsilon Pi, supra. Thus, there was sufficient evidence for the court
to find Appellant made an unreasonable noise that intentionally or recklessly
created a risk of causing a public inconvenience, annoyance or alarm.4
In her third issue, Appellant argues that her constitutional right to
complain about police conduct outweighs any inconvenience society
experienced during the incident. She claims her conviction for disorderly
conduct under 18 Pa.C.S. § 5503 violated her constitutional right to free
speech. We disagree.
“As the constitutionality of a statute is a pure question of law, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Omar, 981 A.2d 179, 185 (Pa.2009).
This Court “has repeatedly determined that Article I, § 7 [of the
Pennsylvania Constitution] affords greater protection to speech and conduct
in this Commonwealth than does its federal counterpart, the First
Amendment.” Melvin v. Doe, 836 A.2d 42, 47 (Pa.2003) (internal
____________________________________________
4
Appellant’s conviction for disorderly conduct is based on the unreasonable
noise she made while she was in the parking lot and arguing with police
officers and EMS personnel. We note that police officers brought Appellant
to the parking lot for an EMS evaluation pursuant to police policy regarding
tasers. We further note that Appellant does not challenge the propriety of
police tasing her in her home originally, so that issue is not before this
Court.
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quotations and citations omitted). The Pennsylvania constitution provides,
in relevant part:
§ 7. Freedom of press and speech; libels
The printing press shall be free to every person who may
undertake to examine the proceedings of the Legislature or
any branch of government, and no law shall ever be made
to restrain the right thereof. The free communication of
thoughts and opinions is one of the invaluable rights of
man, and every citizen may freely speak, write and print
on any subject, being responsible for the abuse of that
liberty. No conviction shall be had in any prosecution for
the publication of papers relating to the official conduct of
officers or men in public capacity, or to any other matter
proper for public investigation or information, where the
fact that such publication was not maliciously or
negligently made shall be established to the satisfaction of
the jury; and in all indictments for libels the jury shall have
the right to determine the law and the facts, under the
direction of the court, as in other cases.
Pa. Const. art. I, § 7.
However, the right to free speech is not absolute:
“Allowing the broadest scope to the language and purpose
of the Fourteenth Amendment, it is well understood that
the right of free speech is not absolute at all times and
under all circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or
‘fighting’ words those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.
It has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the
social interest in order and morality. ‘Resort to epithets or
personal abuse is not in any proper sense communication
of information or opinion safeguarded by the Constitution,
and its punishment as a criminal act would raise no
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question under that instrument.’ Cantwell v.
Connecticut, 310 U.S. 296, 309-310, 60 S. Ct. 900, 905-
906, 84 L. Ed. 1213.” (Footnotes omitted.)
Commonwealth v. Mastrangelo, 414 A.2d 54, 58 (Pa.1980).
Specifically, regarding free speech and disorderly conduct, our
Supreme Court has held that:
[A] state, in a valid exercise of its police power, may enact
laws to protect the public peace even though such
ordinances may curtail free speech or assembly.
Commonwealth v. Mastrangelo, 414 A.2d 54, 58
([Pa.]1980). See: Chaplinsky v. New Hampshire, 315
U.S. 568, 571–572, 62 S. Ct. 766, 769, 86 L. Ed. 1031
(1942) (right of free speech found not to be absolute
where language tends to incite an immediate breach of the
peace). Instantly, we do not share Appellants’ view that
the phrase “creates a hazardous or physically offensive
condition” could be used to punish anyone exercising a
protected First Amendment right. Our legislature
specifically limited the breadth of the statute in subsection
(a) which states that the offense of disorderly conduct
requires an “intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof.”
Thus, we are of the opinion that the statute demonstrates
a narrowly confined exercise of the Commonwealth’s police
powers, which cannot be utilized to prohibit constitutionally
protected conduct.
Commonwealth v. Roth, 588, 531 A.2d 1133, 1140 (Pa.Super.1987).
Although Appellant is correct that she has a right to free speech, this
right is not absolute. This Court has held that the disorderly conduct statute
demonstrates a narrowly confined exercise of the Commonwealth’s police
powers. See Roth, supra. Because the statute is constitutional, it can be
enforced. Thus, Appellant’s claim that the law infringes on her constitutional
rights is meritless.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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