Com. v. Burns, M.

J. S12010/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARIA BURNS, : No. 3499 EDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, November 14, 2012,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-SA-0000228-2012
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 03, 2014
Appellant, Maria Burns, appeals from the judgment of sentence
entered in the Court of Common Pleas of Northampton County following her
conviction for disorderly conduct. We affim.1
Appellant was charged by the Moore Township Police Department with
two separate incidents of disorderly conduct; the first incident occurred on
June 13, 2012, at the Moore Township recreational park. According to the
testimony of Sydney Wright (“Wright”), age 14, she and appellant’s son,
Anthony, and another boy, Brandon Green, were riding their bicycles on the
trails. (Notes of testimony, 11/14/12 at 4-5.) Wright received a call on her
1
On April 8, 2014, in a memorandum decision, we remanded this case to
the trial court for appellant’s court-appointed counsel to file a
Pa.R.A.P. 1925(b) statement and the trial court to prepare and file its
Pa.R.A.P. 1925(a) opinion. The case is now ready for our review.
J. S12010/14
cell phone from Brandon’s mother, Dana Green, asking the group to come
back to the park. (Id. at 5.) Upon their return, Wright testified that
appellant was there and “everything was normal.” (Id. at 6.) Appellant
went back to her house to get Anthony a pair of shoes and Gatorade. (Id.)
When appellant returned a half-hour later, Wright said appellant was acting
“differently” and “mumbling under her breath.” (Id.) Wright was playing
with Dana Green’s two-year-old son when appellant, standing three feet
away from Wright, started talking about how she thought Wright was a
foreign exchange student from Germany. (Id. at 6-7.) Wright testified she
did not understand what appellant was saying because “it didn’t make much
sense to me” and then appellant “called us the N word and white trash.”
(Id. at 7.) When asked how she felt when appellant approached her, Wright
said, “I felt intimidated and just nervous.” (Id. at 9.) When asked how
many times appellant used the “N word,” Wright answered, “I only heard it
once.” (Id. at 11.) When asked if appellant referred to only Wright as white
trash, Wright responded, “I don’t know if it was meant for me, but she said
it to the group of us.” (Id.) Dana Green also testified that appellant used
the “N word” one time. (Id. at 18.) The police were called and appellant
was issued a citation for disorderly conduct, 18 Pa.C.S.A. § 5503(a)(1), (2),
(3) & (4) at Citation No. P 8605386-6.2
2
We note that the citation lists “sub. sec. A(1), (2), (4)” on one line.
Directly above, under Crimes Code Title 18, “(A3)” is listed. The original
citation is attached to Document # 2 in the certified record.
-2-
J. S12010/14
The second incident occurred on July 10, 2012. Colleen Greene,
(“Greene”), testified that appellant’s house is next door to her house, and
there are about 100 feet between the properties. (Notes of testimony,
11/14/12 at 28.) According to Greene, she had just returned to her home
after going to lunch and grocery shopping. (Id. at 29) Appellant, while
standing on her own driveway, started yelling and calling Greene names;
such as, “you are white trash, you’re mother F-ing white trash, controlling
jerk.” (Id. at 30.) Greene testified this has happened before; and on this
particular day, appellant just kept saying, “you’re white trash, you’re white
trash.” (Id. at 31.) Greene testified no one else was present during this
incident. (Id. at 34.) She called the police and appellant was cited for
disorderly conduct, 18 Pa.C.S.A. § 5503(a)(2), (3) & (4) at Citation
No. P 9256315-5.
A hearing was held on August 1, 2012, before District Magistrate
Robert A. Hawke on both citations. The certified record indicates that
appellant was found guilty of disorderly conduct at both citations and fined
$339 for each citation for a total of $678. Appellant filed a timely appeal to
the Court of Common Pleas of Northampton County on August 30, 2012.
Both summary convictions were consolidated for a non-jury trial de novo
that took place on November 14, 2012.
On November 14th, at the close of testimony, Attorney Paul J. Levy,
counsel for appellant, made an oral motion for a demurrer regarding the
-3-
J. S12010/14
second incident appellant was cited for on July 10, 2012. The trial court
sustained counsel’s motion. (Notes of testimony, 11/14/12 at 34.) The trial
court then went on to find appellant guilty in connection with the first
incident on June 13, 2012. The trial court stated:
The Court will find the defendant, after a
de novo hearing, guilty of violating section 5503 of
the Crimes Code, subsections two, three, and
four. The Court will impose a fine upon her identical
to that imposed upon her earlier at $339, plus the
additional costs associated with the Northampton
County proceedings.
Id. at 35-36 (emphasis added).
A timely appeal to this court followed, and appellant presents the
following issues for our review:
1. WHETHER THE VERDICT WAS AGAINST THE
WEIGHT OF THE EVIDENCE?
2. WHETHER THE VERDICT WAS AGAINST THE
SUFFICIENCY OF THE EVIDENCE?
3. WHETHER THE CONDUCT OF [APPELLANT]
UNDERLYING THE CRIMINAL CONVICTION
CONSTITUTED FREE SPEECH PROTECTED BY
THE FIRST AMENDMENT OF THE UNITED
STATES CONSTITUTION?
Appellant’s brief at 4.3
Section 5503(a) defines disorderly conduct as follows:
3
A fourth issue listed in appellant’s statement of questions involved has
been abandoned.
-4-
J. S12010/14
§ 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:
(1) engages in fighting or threatening,
or in violent or tumultuous
behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes
an obscene gesture; or
(4) creates a hazardous or physically
offensive condition by any act
which serves no legitimate purpose
of the actor.
18 Pa.C.S.A.§ 5503. Specifically, our supreme court has held that an
individual may be convicted for 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).
Before proceeding, we must address the unclear nature of exactly
which sections appellant was charged with and convicted of. The only
matter before us is the first citation regarding the June 13, 2012 incident.
The original citation found in the certified record charges appellant with a
violation of Section 5503(a)(1), (2), (3), and (4). The nature of the offense
is described as follows:
-5-
J. S12010/14
Defendant caused public inconvenience annoyance
and alarm; to wit she began yelling at the victim
(15 years old) in a loud tone and screaming at other
children and adults in the rec. center. Defendant’s
actions had no meaning toward the victim which
served no legitimate purpose.
Citation No. P 8605386-6, received 6/18/12, District Court 03-3-01
(attached to Document #2).
As already noted at the conclusion of the November 14, 2012 de novo
trial, the trial court found appellant guilty of Section 5503(a)(2), (3), and
(4). However, the trial court’s Rule 1925(a) opinion indicates the issues in
this case concern Subsections (a)(1), (2), and (4). (Trial court opinion,
7/7/14 at 1, 3.)
By letter dated October 3, 2014, the Commonwealth advised this court
that it concedes there was insufficient evidence presented at trial to sustain
appellant’s conviction under Section 5503(a)(3).4 However, the
Commonwealth notes appellant was convicted under two other sections,
Sections 5503(a)(2) and (a)(4), and that appellant has not challenged those
convictions on appeal. We have reviewed appellant’s brief, and the
Commonwealth is correct that appellant only addresses the evidence as it
relates to Section 5503(a)(3). Specifically, appellant argues that the trial
4
We agree with the Commonwealth that there was insufficient evidence to
convict appellant under Section 5503(a)(3). There was no evidence that
appellant’s words were intended to appeal to anyone’s prurient interest or
described sexual conduct in a patently offensive way. See Commonwealth
v. McCoy, 69 A.3d 658, 665 (Pa.Super. 2013), appeal denied, 83 A.3d
414 (Pa. 2014).
-6-
J. S12010/14
court confuses the two incident dates since Section 5503(a)(3) was charged
in the July 10th incident which was dismissed. To the extent that appellant
argues sufficiency under Section 5503 generally, or as to
Sections 5503(a)(2) and (4), we find the trial court’s opinion amply supports
a finding of sufficiency with respect to these two sections, and we affirm on
that opinion.
Appellant has filed an application for relief to include copies of both the
June 13, 2012 and July 10, 2012 citations. Our review indicates the original
citation regarding the June 13, 2012 incident is already included in the
certified record. Based on our review and discussion in this Memorandum,
the supplementation of the record is not necessary. Accordingly, the motion
is denied.
Judgment of sentence affirmed.
Donohue, J. joins the Memorandum.
Jenkins, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2014
-7-
Circulated 11/21/2014 09:34 AM
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA ·
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
VS.
MARIA BURNS, ::..::
Appellant. .,
Pa,R.A.P. 1925(.) Stat.",ent
"-
AND NOW, this L day of July, 2014, the Court issues the following
statement:
A. Pxocedural History
On June 13, 2012, the Appellant, Maria Burns, was issued a non-traffic
citation at DO. 8605386'6 for disorderly conduct under 18 Po.C.S. §§ 5503(a)(1), (2),
& (1). The citation charges the Appellant with causing public inconvenience,
annoyance, and alarm by yelling at the Victim (age 14) in a loud tone and screaming
at other children and adults in a recreational center. It further alleges that the
Appellant's actions had no meaning or legitimate purpose.
0.0. July 9, 2012, the Appellant received a sQcond citation for clisorderly
conduct at no . 9256315-5. This citation charges the Appellant with causing public
inconvenience, annoyance, and alarm by yelling and cursing at bel' neighbor
without justification.
J
Circulated 11/21/2014 09:34 AM
The Appellant represontod hersolf ut the summary pmceading before
Magisterial District Judge Robert Hawke . MDJ Hawke found her guilty of both
offenses. The Appellan~ then appealed her convictions to the Court of Common
Pleas, this time with the assistance of counsel, Paul Levy, Esquire .
The undersigned heard the summary appeal on Nuvember 14, 2012. The
Court lound the Appellant guilty of disorderly conduct on the June 13, 2012 citation
but not guilty on the July 9,2012 citation.
The Appellant filed a timely notice of appeal on December 11, 2012. At this
point, we incorporate the procedural history from OUI Pa.R.A.P. 1931(b) Statement
dated June 20, 2013,
On remand from the Superior Court, we appointed Brian Monahan , EsqUire,
to represent the Appellant on April 11, 2014. We directed Attorney Monahan to file
a statement pursuant to Pa.R.A.P. 192Mb). We later granted his request for
additional time due to the unavailability ofilie trial transcript.
B. The Appellate Issues
Attorney Monahan submitted his 1925(b) statement on May 29, 2014,l'aising
the following issues:
(1) The verdict was against the weight of the evideoce;
(2) The verdict was against the sufficiency of the evidence;
(a) The conduct of Defendant underlying the criminal L'ODvlction constituted
free speech protected by the First Amendment ofthe Unit.ed States
Constitution; and
2
Circulated 11/21/2014 09:34 AM
(4) The Court erred in allowing testimony to SUPpOl"t Lbe conviction which
related to a different offense.
C. DiscuBsion
We begin our discussion with the Appellant's challenge to the sufficiency of
the evidence. The test for the sufficiency of the evidence is whether, a~epting as
true all the evidence, including all reasonable inferences drawn therefrom, the
evidencc and inferences are sufficient to prove guilt beyond tl reasonable doubt. 1
The summary offense of "Disorderly Conducf' is governed by 18 Pa.C.S. §
5503(a), which provides that "A person is guilty of disorderly conduct if, within the
intent to cause public inconvenience, annoyan(:e or a larm, or reckless creating a risk
thereof, be:
(D engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene langua ge, Or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which
serves nO legitimate purpose of the actor.
At issue in this case are subsections (a)(1), (2), and (4) .
During the hearing, the Commonwealth presented two witnesses in support
of the June 13,2012 citation. The first witness to testify was the Victim, age 14.
I See Commonwealth v. Msstrll.nge.io, 414 A.2d 54, 59 (Fa. 1980)
3
Circulated 11/21/2014 09:34 AM
The Victim testified that. on June 14, 2012,2 she rode her bike to the Moore
Township Recreational Park with the Appellant's son and Dana Green's son. The
trio rode their bikes until Dana Green called the Victim and her son and asked
them to return. The children complied with this request and returned to the park
Upon their retul'n, everything was "normal." The Appellant was pI'esent and
414 A.2d 5'1. (Pa. 1980)
t Commonwea.Jrh v. Widmer, 744 A.2d 745,751'752 CPa. 2000) (internal citatiON omitted).
7
Circulated 11/21/2014 09:34 AM
In our view. there are 00 facts of rocord &.hat compel a new trial. For
whatever reason, the Appellant appeal'S i.o ha ve undergone a mental or emotional
shift that caused her to become hostile and abusive. This personality change may
be attributable to the brain issue for which she received medical treatment.
However, a brain abnormality (even if proven) would not give the Appellant a
license to bel'ate others, especialJy children, with impunity.
Moreover, the Appellant did not raise this defense at tl'laJ. Rather, Attorney
Levy argued that the Appellant had a "legitimate purpose" for addressing the
Victim with racial epithets like "white trash" and "N·l·G·G·E-R." We do not agree.
In our view, no civilized society should condone this type of unprovoked and
abusive behavior from an adult toward a child. Accordingly, 've submit that the
verdict was n ot contrary to the weight ofthe evidence.
Next, we addre38 the Appellant" contention that her cond uct was protected
by the First Amendment to the United States Constitution. The U.S. Suprerue
Court has explained the limitations on the right to free speech as follows:
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 limjtoo. 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 velj' utterance inJ1ict injury or tend to incite an
immediate hreach of the peace. It has been weH observed that such
utterances are no essential part of any exposition of ineas, and are of such
slight social value as a step to truth that any benefit that may be derived
8
Circulated 11/21/2014 09:34 AM
from t.hem is clearly outweighed by the social interest:in order and morality.
'Resort to epithets or personal abuse is not in any sense proper
communicatioIl of information or opinion safeguarded by the Constitution,
and its punishment as a criminal act would raise no question under that
instrument. s (emphasis added) .
We submit that the AppeUant's speech falls into the unprotected category of
'fighting words.' In support, we note that neither Dana Green nor the Victim
understood what the Appellant was saying. Because the Victim was not a foreign
exchange student, the AppeUant's attempt to interrogate her on this topic was
meaningless.
The Appellant peppered her invective with racial epithets and used a hostile
tone to press her attack. She was not engaged in a meaningful dialogue or symbolic
speech . . In OUl' view, her speech was devoid of any "social value as a step to truth."
We therefore submit that her actions are not subject to protection by the First
Amendment.
Finally, we address the Appellan~s claim that the Court erred in using
testimony from a. different offense to support this conviction. The AppelJant is
referring to the testimony of CoUeen Green, the Appellant's neighbor, offered by the
Commonwealth in support of the Ju.ly 9, 2012 citation.
Colleen Green testified that the Appellant had berated her On a daily basis
for over a year without any apparent cause. 'fhe Appellant alternately referred to
5 CommonwealtlJ Y. Mas/.rangeio, 414 A.Zd 51, 58 (Pa. 1980) (quoting Chaplinsky Y. N£'w
HllmpsiJll'l', 315 U.S . 568, 571-572 (]912)).
9
Circulated 11/21/2014 09:34 AM
her (and he.r other neighbor) as "F'ing white trash," "controlling jel'k," "whoro." and
"prostitute," Ultimately, the Court dismissed the July 9, 2012 citation for lack of
testimony that this behavior had taken place in a public location.
To start, we Dote the presumption "that a trial court, sitting as fact'finder,
can and will disregard prejudicial evidence."6 In addition, we submit that there is
no indication that the Court used Colleen Green's testimony to support its verdict
on the June 13, 2012 citation. Instead, as set forth above, we believe the evidence
was sufficient to sustain the Court's guilty verdict independent of Colleen Green's
testimony. We therefore submit that thi s final assertion of error is meriiless.
We respectfully request that the judgment be affirmed in all respects.
d CommomvelJ./th v. .FellI'S. 86 A.3d 795, 820 (P8.. 2014) Gnt.ernaJ CItation omittedJ.
10