Com. v. Darrah, L.

J-A29042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LISA MARIE DARRAH :
:
Appellant : No. 500 WDA 2021
Appeal from the Judgment of Sentence Entered March 9, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014255-2019
BEFORE: BENDER, P.J.E., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: NOVEMBER 29, 2021
Lisa Marie Darrah (Darrah) appeals from the judgment of sentence
imposed in the Court of Common Pleas of Allegheny County (trial court)
following her bench conviction of two counts of harassment and one count of
disorderly conduct1 for her treatment of her neighbors Kelly Keller (Keller) and
Keller’s daughter, Mia Jarnot (Jarnot). On appeal, Darrah challenges the
sufficiency of the evidence supporting her conviction. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2709(a)(4), 5503(a)(3).
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I.
A.
This case arises from a series of incidents in the summer and fall of 2019
during which Darrah shouted obscenities at Keller and Jarnot. Jarnot was 17
years old at the time. The parties reside in a residential neighborhood of 44
houses with 14 single-family homes on their street. Darrah is wheelchair
bound and resides with her mother next door to Keller.
B.
At Darrah’s February 2021 bench trial, the Commonwealth presented
the testimony of Keller, Jarnot and Officer Thomas Trocki of the West Deer
Township Police Department. Keller testified that during a neighborhood yard
sale on July 14, 2019, at which “there were a lot of people coming and going,”
Darrah “was riding back and forth in front of my driveway and she yelled some
sort of obscenity.” (N.T. Trial, 2/08/21, at 19). Darrah went to a neighboring
home before riding past Keller’s property again while Keller was in her garage
looking at her phone. Darrah accused Keller of videotaping her and yelled
numerous obscenities at Keller, including “fucking bitch” and “filthy cunt.” She
screamed: “You are so fucking ugly, why don’t you put some makeup on.
Pig.” (Id. at 19-20). Keller filed a police report the next morning.
At approximately 6:00 p.m. on July 15, 2019, Darrah yelled graphic
insults to Keller concerning Jarnot as Keller washed her car in her driveway.
Keller testified that Darrah “started commenting about my daughter being
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‘fucking ugly’ and being a ‘whore’ and that she had nudes [photographs] of
my daughter and they were spread all over West Deer.” (Id. at 21). Darrah
shouted these insults while looking directly at Keller from her driveway at a
distance of about 25 to 30 feet away. (Id. at 22). Darrah then sent Keller a
note through Facebook Messenger stating, “Take all the videos you want
honey. I know tons of young men that have naked pictures of your daughter.
Be careful what you wish for. Don’t harass me again. This is your final
warning . . . Little piglet she is. You got to be ashamed of yourself that you
raised a daughter that is so sleazy.” (Id. at 24).
On July 31, 2019, while Keller and Jarnot were on their back patio with
Keller’s husband, Darrah yelled to them from her patio, “You dike-looking fat
bitch. You go down on chicks you are so ugly. You fat dike bitch. And little
dope smoking bitch you got over there like her fat-ass mother. You dike . . .
Do you like men or do you go down on chicks?” (Id. at 26). Keller recorded
the incident using her cell phone.
On October 12, 2019, as Jarnot was preparing to leave for a
homecoming dance, Darrah yelled obscenities at her and Keller. They went
inside of their home to avoid Darrah and Keller called the police. Jarnot called
her friends to pick her up and when they arrived she quickly left in their
vehicle. Officer Trocki arrived at the scene as Darrah was still shouting insults.
Keller testified that from the time of the first incident with Darrah at the yard
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sale in July until the homecoming incident in October, she called the police
four or five times to report Darrah’s conduct.
Jarnot testified regarding a July 30, 2019 incident wherein “a couple of
friends had stopped by my house before I went to volleyball, and I went
outside to talk to them and [Darrah] came outside and started yelling at me,
calling me a ‘fat hoe’ and accused me of doing a drug deal.” (Id. at 43).
Darrah then took a photograph of her “and it circulated to some people, and
then it was sent to a friend of mine in the car, who forwarded it to me.” (Id.).
Jarnot did not respond to Darrah and instead went into her house because she
was “really embarrassed and scared.” (Id.). On July 31, 2019, while she was
on the patio with her mother, Darrah screamed, “You dike-looking fat bitch.
You go down on chicks you are so ugly. You fucking dike bitch.” (Id. at 44).
Darrah also called her a “drug addict” and a “dope smoking little fucking bitch.”
(Id.). Regarding the October 12, 2019 homecoming incident, Jarnot
explained that she was outside her house “about to start taking pictures in my
dress and [Darrah] came outside” and began yelling from her driveway that
Jarnot was a “whore . . . so fucking ugly” she “couldn’t even get a date.”
(Id.). Darrah also asked her if she “liked men or eat pussy.” (Id.). Jarnot
testified that she never responded to Darrah’s insults because she “was just
too afraid to say anything back.” (Id. at 45).
Officer Trocki testified that he took Keller’s report of harassment on July
15, 2019, and that he immediately called Darrah and left a message asking
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her to return the call. Darrah did not return the call but did answer the phone
the next day. The officer described Darrah’s demeaner as “extremely angry
and irritated” as she talked over him during the call. Darrah yelled that she
would call Keller “a fat fucking pig” and other vulgar terms if she wanted to.
(Id. at 48). Darrah referred to Jarnot as a “little slut [who] little boys have
naked pictures of[.]” (Id. at 49). When Officer Trocki advised Darrah not to
continue this conduct, she indicated that she would not comply with this
directive. Officer Trocki was dispatched to the Keller residence on October 12,
2019, and when he arrived, Darrah was in her driveway screaming vulgarities.
The officer directed her to go inside her home.
The defense did not call any witnesses on Darrah’s behalf at trial after
the court conducted a thorough colloquy. The court permitted the parties to
submit briefs on the legal issues involved in the case. On March 9, 2021, the
trial court convicted Darrah of the aforementioned offenses2 and sentenced
her to an aggregate term of two years of probation. This timely appeal
followed. Darrah and the trial court complied with Rule 1925. See Pa.R.A.P.
1925(a)-(b). In its opinion, the court expressly found the testimony of Keller
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2 The Disorderly Conduct count was graded as a third-degree misdemeanor
instead of a summary offense based on the trial court’s finding that Darrah
continued her disparaging conduct despite Officer Trocki’s prior warning that
she desist. See 18 Pa.C.S. § 5503(b) (setting forth permissible grading for
the offense).
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and Jarnot credible as to Darrah’s derogatory insults and profanity directed at
them. (See Trial Court Opinion, 6/22/21, at 6).
II.
Darrah first contests the sufficiency of the evidence supporting her
conviction of harassment. Darrah characterizes the incidents with Keller and
Jarnot as “merely name-calling during an ongoing dispute with her neighbors
[and] de minimus conduct” falling short of criminal harassment. (Darrah’s
Brief at 12). Darrah also challenges the element of intent by arguing the
evidence did not demonstrate that she had the specific intent to harass, annoy
or alarm either Keller or Jarnot.3
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3
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 a 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 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.
(Footnote Continued Next Page)
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The Crimes Code provides in relevant part: “A person commits the
crime of harassment when, with intent to harass, annoy or alarm another, the
person . . . (4) communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or
caricatures[.]” 18 Pa.C.S. § 2709(a)(4). “An intent to harass may be inferred
from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d
719, 721 (Pa. Super. 2013) (citation omitted). Additionally, Section 312
provides for dismissal of a case where an infraction is negligible:
§ 312. De minimis infractions
(a) General rule.─The court shall dismiss a prosecution if, having
regard to the nature of the conduct charged to constitute an
offense and the nature of the attendant circumstances, it finds
that the conduct of the defendant:
(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.
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Commonwealth v. Williams, 255 A.3d 565, 578-79 (Pa. Super. 2021)
(citation omitted).
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18 Pa.C.S. § 312(a)(1)-(3).4 “An offense alleged to be de minimis in nature
should not be dismissed where either harm to the victim or society in fact
occurs.” Toomer, supra at 960 (citation omitted).
In the instant case, the trial court rejected Darrah’s sufficiency challenge
to her harassment conviction, reasoning:
Keller and Jarnot credibly testified to several incidents
wherein Appellant shouted vulgar insults at them, degraded their
physical appearance, and accused Jarnot of illegal activity and
sexual promiscuity. These actions rise above de minimus
infractions and establish Appellant’s clear and specific intent to
harass, annoy, or alarm Keller and Jarnot. Furthermore,
screaming obscenities at Keller and Jarnot, and repeatedly making
derogatory comments regarding Jarnot’s sexual promiscuity,
satisfy the element of lewd, lascivious, threatening or obscene in
this matter.
(Trial Ct. Op., at 6) (quotation marks and case citation omitted).
After review of the record, we agree with the trial court’s assessment.
Contrary to Darrah’s view that the incidents merely amounted to a few
instances of “discourteous” name calling during a “neighborly dispute,” and
that her behavior was not overtly crude or lewd, we disagree. (Darrah’s Brief,
at 10, 18). Instead, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, her verbal abuse of Keller and Jarnot by
____________________________________________
4We review a trial court’s finding as to whether an infraction is de minimis for
an abuse of discretion. See Commonwealth v. Toomer, 159 A.3d 956, 960
(Pa. Super. 2017).
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attacking their physical appearance and screaming allegations of sexual
promiscuity and drug use was criminal.
Specifically, the evidence demonstrates that Darrah repeatedly shouted
graphic, profane remarks to Keller and Jarnot while they engaged in various
activities on their property, including participating in a neighborhood yard
sale, washing their car, conversing with friends and family and preparing to
take photographs before a high school homecoming dance. Jarnot expressly
testified that she did not respond to Darrah’s insults because she was “really
embarrassed and scared” and “too afraid to say anything back.” (N.T. Trial,
at 43, 45). We agree with the trial court’s conclusion that the record contains
ample evidence establishing that Darrah’s infractions were not simply de
minimus and that she communicated obscene, lewd statements to Keller and
Jarnot with the intent to harass, annoy and/or alarm them. Darrah’s first
issue merits no relief.
III.
Darrah next challenges her conviction of disorderly conduct on two
bases. She first argues the evidence failed to demonstrate that she intended
to cause a public rather than a private disturbance. Darrah maintains that
because she “was on her own private property when she called her neighbors
bad names . . . she did not risk inciting public unrest through her actions.”
(Darrah’s Brief, at 19). Alternatively, Darrah argues the grading of the count
as a misdemeanor of the third degree instead of as a summary offense was
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erroneous where the Commonwealth failed to show that she persisted her
conduct after she received a reasonable warning to desist. Darrah posits that
her brief phone conversation with Officer Trocki three months before her
arrest does not constitute a reasonable warning.
A.
We begin by addressing Darrah’s claim that she did not act with the
intent to create a public disturbance and that she instead “manifested an
intent to cause a private inconvenience to her neighbors.” (Darrah’s Brief, at
23).
The Crimes Code provides: “A person is guilty of disorderly conduct if,
with intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, [s]he: . . . (3) uses obscene language, or makes
an obscene gesture[.]” 18 Pa.C.S. § 5503(a)(3) (emphasis added). The
statute further provides that conduct is considered “public” if it affects or is
likely to affect “persons in a place to which the public or a substantial group
has access”; among these delineated locations are “places of business or
amusement, any neighborhood, or any premises which are open to the
public.” Id. at § 5503(c) (emphasis added).
“Whether a defendant’s words or acts rise to the level of disorderly
conduct hinges upon whether they cause or unjustifiably risk a public
disturbance.” Commonwealth v. Goldman, 252 A.3d 668, 673–74 (Pa.
Super. 2021). The mens rea element of the statute requires proof that an
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appellant by her actions intentionally caused or recklessly created a risk of
causing a public inconvenience, annoyance or alarm. See Commonwealth
v. McConnell, 244 A.3d 44, 51 (Pa. Super. 2020). This applies even if the
appellant’s intent was to send a message to a certain individual rather than
impact the public. See id.We conclude the “public” element of the Disorderly Conduct statute was
met by Darrah’s repeated shouting at Keller and Jarnot as they engaged in
various outdoor activities in the yard of their home in their neighborhood with
more than a dozen residences on their street. First, the statute specifically
enumerates “any neighborhood” as a public place. Additionally, the evidence
showed that Darrah yelled obscenities at Keller during a yard sale organized
by neighborhood residents open to the public during which “there were a lot
of people coming and going.” (N.T. Trial, at 19). Although Darrah claims she
yelled “bad names” from her private property only, Keller specifically testified
that during the yard sale, Darrah “was riding back and forth in front of my
driveway and she yelled some sort of obscenity.” (Id.) (emphasis added).
Darrah then went to a neighboring home to look at items for sale before she
rode by Keller again while yelling “fucking bitch” and accusing Keller of
videotaping her. (Id.).
In subsequent incidents, Darrah shouted obscenities at Jarnot while she
was talking with her friends outside of her home before a volleyball game and
as she prepared to attend a school homecoming dance. Darrah also took a
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photograph of Jarnot while she was with friends and circulated it to other
individuals who forwarded it to Jarnot’s friend. Darrah made several graphic
derogatory allegations relating to Jarnot’s sexuality by threatening “that she
had nudes of [Jarnot] and they were spread all over West Deer”; and
representing: “I know tons of young men that have naked pictures of
[Jarnot].” (Id. at 21, 24) (emphasis added).
Thus, contrary to Darrah’s assertion, the record shows that this was not
merely a private neighborly dispute. Rather, it reflects that she launched
unprovoked crude slurs at Keller and Jarnot in front of other people while
outside in a residential neighborhood, and that she actively involved other
individuals by taking and circulating at least one photograph of Jarnot while
indicating that she was in possession of other pictures of the minor in a
sexually compromised state and asserting that she knew of many men who
were in possession of these same photographs. Accordingly, Darrah’s first
challenge to her disorderly conduct conviction fails.
B.
We next address Darrah’s contention that the evidence was insufficient
to sustain her conviction of disorderly conduct graded as a third degree
misdemeanor as opposed to a summary offense.5
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5 Because the proper grading of a criminal offense is an issue of statutory
interpretation implicating the legality of sentence, this issue raises a question
of law and our standard of review is de novo and scope of review plenary.
See Commonwealth v. Raymond, 233 A.3d 809, 816 (Pa. Super. 2020).
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Section 5503 outlines the permissible grading for the offense of
disorderly conduct:
(b) Grading.─An offense under this section is a misdemeanor of
the third degree if the intent of the actor is to cause substantial
harm or serious inconvenience, or if he persists in disorderly
conduct after reasonable warning or request to desist. Otherwise
disorderly conduct is a summary offense.
18 Pa.C.S. § 5503(b) (emphasis added).
We agree with the trial court’s assessment that grading the offense as
a misdemeanor was entirely appropriate based on Officer Trocki’s testimony
describing his interactions with Darrah. Specifically, he advised Darrah to stop
yelling vulgar statements at Keller and Jarnot immediately after Keller filed
the initial police report in July 2019. Darrah became irate at his request,
yelled over him during their conversation and blatantly stated that she would
not comply with his directive. Officer Trocki then personally observed Darrah
scream obscenities at Keller when he responded to the residence in October
2019. Hence, it is clear that Darrah “persist[ed] in disorderly conduct after
reasonable warning or request to desist.” See 18 Pa.C.S. § 5503(b).
Further, as the statutory requirements are disjunctive, we find that
grading of the offense as a misdemeanor was also appropriate under the first
prong, i.e., upon a showing “the intent of the actor is to cause substantial
harm or serious inconvenience.” Id. The record in this case clearly evidences
Darrah’s intent to cause much more than a serious inconvenience to Keller
and Jarnot when she repeatedly went outside her home for the sole purpose
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of hurling venomous insults concerning their weight, sexual activity and drug
use in the presence of their friends and family, while Jarnot was a minor.
Darrah’s final issue merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2021
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