Com. v. Nevel, K. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KRISTI L. NEVEL
Appellant No. 90 MDA 2014
Appeal from the Order dated December 16, 2013
In the Court of Common Pleas of Montour/Columbia Counties
Montour County Criminal Division at No: CP-47-SA-0000003-2013
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 04, 2014
Appellant, Kristi L. Nevel, appeals from the December 16, 2013 order
entered on January 9, 2014 in the Court of Common Pleas of Montour
County dismissing Appellant’s summary appeal and finding her guilty of
disorderly conduct.1 Following review of Appellant’s sufficiency of evidence
challenge, we affirm.
On September 23, 2013, Appellant was cited for disorderly conduct
under 18 Pa.C.S.A. § 5503, which provides, in relevant part: “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: . . . (4)
creates a hazardous or physically offensive condition by any act which
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1
18 Pa.C.S.A. § 5503(a)(4).
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serves no legitimate purpose of the actor.” 18 Pa.C.S.A. § 5503(a)(4). For
purposes of § 5503, “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, . . . any neighborhood, or any
premises which are open to the public. 18 Pa.C.S.A. § 5503(c).
Appellant filed a notice of summary appeal and a hearing was
conducted on December 16, 2013. The prosecution’s sole witness was
Corporal Chad Thomas, the citing officer. Appellant testified on her own
behalf. No other witnesses testified. The trial judge summarized the
evidence and announced his credibility determinations as follows:
At the hearing on December 16, 2013, the Commonwealth called
Cpl. Chad Thomas, the citing officer. Cpl. Thomas testified that,
on September 23, 2013, he was dispatched to 1333 Bloom Road
in Mahoning Township, Montour County, PA. There was a report
of two (2) people arguing loudly outside in the driveway of the
home. The argument was regarding a property dispute following
the separation of [Appellant] and her estranged husband. It was
[Appellant] who initiated the call to the Police Department. Cpl.
Thomas testified that, when he arrived on scene, he advised the
parties that he would not intervene in a civil domestic dispute
over property, but that, if there was a confrontation that
escalated, then both parties would probably be arrested. That
conversation occurred prior to 8:00 a.m.
After the first dispatch, Cpl. Thomas was dispatched again
regarding a “loud argument.” When he arrived, both parties
were located in the driveway outside the residence and he was
able to see that they were “still verbally battling back and forth .
. . .” When Cpl. Thomas arrived after the second dispatch, he
could hear the parties arguing and the volume was loud enough
to wake the neighbors and for them to call 911. The neighbors
were the parties who called the second time. Cpl. Thomas
testified that he “heard them yelling back and forth at each other
. . . .”, but could not tell verbatim what was being said.
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After the Commonwealth rested, [Appellant] was called to
testify. She contradicted Cpl. Thomas and testified that, when
Cpl. Thomas arrived after his second dispatch, she was not
located in the driveway as Cpl. Thomas had recollected. Rather,
[Appellant] testified that she was in her kitchen.
The testimony of Cpl. Thomas is hereby accepted as credible,
including his testimony that there was a very loud volume in the
driveway, and that both [Appellant] and her estranged husband
were engaging in the loud argument, which was loud enough to
disturb the neighbors at an early morning hour.
Trial Court Opinion (“T.C.O.”), 5/13/14, at 1-2 (references to Notes of
Testimony omitted).
Appellant filed a timely notice of appeal and presents one issue for this
Court’s consideration:
The trial court erred as a matter of law and/or abused its
discretion in finding [Appellant] guilty of disorderly conduct,
18 Pa.C.S.A. § 5503(a)(4), as the facts of the case, even
interpreted in the best light to the Commonwealth, do not
amount to a physically offensive or hazardous condition nor
did this amount to a public inconvenience.
Appellant’s Brief at 4.2
This Court has explained the applicable standard of review as follows:
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2
“In order to preserve a challenge to the sufficiency of the evidence on
appeal, an appellant's Rule 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013). Appellant complied with that directive, stating in her 1925(b)
statement that the Commonwealth failed to “produce[] sufficient evidence
that [Appellant] created [a] hazardous or physically offensive condition” and
“never provided evidence that the alleged crime occurred with intent to
cause public inconvenience.” Appellant’s 1925(b) Statement of Matters
Complained of on Appeal, 1/29/14, at ¶¶ 2, 3. Appellant presents those
same two claims of insufficiency in the brief filed with this Court.
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“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.” Commonwealth v.
O’Brien, 939 A.2d 912, 913 (Pa. Super. 2007). “Any doubts
concerning an appellant’s guilt are to be resolved by the trier of
fact unless the evidence was so weak and inconclusive that no
probability of fact could be drawn therefrom.” Commonwealth
v. West, 937 A.2d 516, 523 (Pa. Super. 2007). “The trier of
fact while passing upon credibility of witnesses . . . is free to
believe all, part or none of the evidence.” Commonwealth v.
DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001) (internal
citations omitted).
Commonwealth v. Garland, 63 A.3d 339, 344-45 (Pa. Super. 2013).
“[W]e 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.”
Commonwealth v. O’Brien, 939 A.2d 912, 913-14 (Pa. Super. 2007)
(quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
2001) (additional citations omitted)).
Appellant contends the evidence does not support a finding that her
actions created a physically offensive or hazardous condition, citing
Commonwealth v. Williams, 574 A.2d 1161 (Pa. Super. 1990).
Appellant’s Brief at 9. In Williams, this Court first considered whether
Williams’ conduct created a hazardous condition and explained that a
“hazardous condition” is “a condition that involves danger or risk.” Id. at
1164. The Court determined that Williams’ action, walking in an apartment
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building parking lot in his underwear and entering a car belonging to a
tenant, did not create a hazardous condition.
This Court then considered whether Williams’ conduct created a
physically offensive condition, explaining that a “physically offensive
condition . . . encompasses direct assaults on the physical senses of the
members of the public.” Id. The Court determined Williams did not directly
assault the public’s physical senses by entering another person’s car while
wearing only underwear. Id. at 1165. The Court offered examples of
conduct sufficient to assault physical senses, including setting off a stink
bomb, strewing rotting garbage in public places or shining blinding lights in
the eyes of others. Id. at 1164. The senses offended in those examples are
smell and sight. Offending the sense of hearing by subjecting others in the
neighborhood to acrimonious verbal battling that prompted a neighbor to call
911 is no less offensive to the senses. Such conduct is readily distinguished
from entering another person’s car wearing only underwear and is
comparable to subjecting others to the smell of a stink bomb or rotting
garbage or shining a bright light in someone’s eyes. We conclude that the
evidence is sufficient to find that Appellant’s actions created a “physically
offensive condition.”
Corporal Thomas explained that Appellant and her estranged husband
were in the driveway, “still verbally battling back and forth,” when he arrived
at the scene the second time, arguing in a volume “loud enough to wake the
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neighbors for them to call 911.” N.T., 12/16/13, at 4-5. As the trial court
noted, “[W]hen a police officer is called for a second (first time by
[Appellant]; the second time by neighbors) at or around 8:00 a.m. during a
highly charged altercation between participants in a domestic dispute and
divorce, the same can (and did) pose a risk of being hazardous.” T.C.O.,
5/13/14, at 3. “The fact was that this was the second dispatch to which the
police had to respond within an approximate 20 minute period, and that the
dispute was acrimonious enough to warrant the neighbors to call police the
second time.” Id. Although the trial court refers to the conduct as posing a
risk of being hazardous, we do not find it necessary to consider the risk of
becoming hazardous when we have already concluded Appellant’s actions
were physically offensive, satisfying that element of the crime of disorderly
conduct.
Appellant also asserts that her actions did not amount to a public
inconvenience and suggests this Court’s decision in Commonwealth v.
Beattie, 601 A.2d 297 (Pa. Super. 1991), is instructive. Appellant’s Brief at
14. Appellant’s reliance on Beattie is misplaced. Beattie was arrested and
charged with disorderly conduct for his conduct with officers who arrived at
his home in response to a “vague radio dispatch apparently occasioned by a
telephone complaint about some men and an unlicensed car at Beattie's
address.” Id. at 299. Beattie refused to answer questions or provide
identification and told the officers to get off his property, all in response to
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questions posed by the officers in relation to what was later determined to
be an investigative stop. Id. at 300. This Court concluded that “the police
lacked the reasonable suspicion required to continue up the private driveway
and conduct an investigative stop of Beattie.” Id. at 301 (citation omitted).
“Inasmuch as the officers had no authority to compel Beattie to answer their
inquiries, Beattie’s conviction for disorderly conduct, which was the result of
his refusal to answer, must be reversed.” Id. (citation omitted).3
Appellant argues that no members of the public were affected by her
actions, contending “[t]he only members who were affected were [Appellant]
and her husband who had a private disagreement on her private driveway.”
Appellant’s Brief at 11. The 911 call from a neighbor belies that assertion.
Appellant may have intended to engage in a private argument with just one
person, i.e., her estranged husband, but by exposing her neighborhood to
the argument, as evidenced by the neighbor’s 911 call, her actions can
properly be classified as causing or risking public annoyance or alarm. See
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3
In dicta, this Court commented that Beattie’s disorderly conduct conviction
warranted reversal, even if his investigative stop had been valid, because
the events took place on his private property such that there was no risk of
public inconvenience or alarm, based on the definition of “public” in the
statute. Beattie, 601 A.2d at 301. The episode between Beattie and the
police occurred in his driveway, away from the street, on Beattie’s two-acre
property that abutted the South Pittsburgh Water Company and an
unoccupied two-acre lot. Id. As noted above, the definition of “public”
includes “neighborhood,” and unlike the facts in Beattie, Appellant’s arrest
stemmed from a disturbance that presented a risk of public inconvenience,
annoyance or alarm to a neighborhood.
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Commonwealth v. Troy, 832 A.2d 1089, 1094 (Pa. Super. 2003) (“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.”) (citing
Commonwealth v. Kidd, 442 A.2d 826, 827 (Pa. Super. 1982)). The fact
the dispute was taking place in the driveway on Appellant’s property does
not change the fact her actions affected the “public” in Appellant’s
neighborhood. See, e.g., Commonwealth v. Alpha Epsilon Pi, 540 A.2d
580 (Pa. Super. 1988), where this Court, in evaluating a sufficiency
challenge under § 5503(a)(2) (relating to unreasonable noise) stated: “We
are satisfied that any residences near enough to receive the noise emanating
from the fraternity house are within the ‘neighborhood’ for purposes of
establishing disorderly conduct.” Id. at 583.
Appellant also relies on Commonwealth v. Smith, 811 A.2d 578 (Pa.
Super. 2002), in support of her assertion that her conduct did not result in
public inconvenience. Importantly, Smith was charged with a third degree
misdemeanor under § 5503(b). Id. at 579.4 By contrast, Appellant was
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4
Section 5503(b) provides: “(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 . . . . Otherwise disorderly
conduct is a summary offense” (emphasis added).
(Footnote Continued Next Page)
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charged with a summary offense. The Court explained that the mens rea for
a summary charge can be simple recklessness. Id. The Court then
suggested that the misdemeanor version of the offense “requires a showing
of specific intent ‘to cause substantial harm to the public or serious public
inconvenience.’ [Commonwealth v. Coon, 695 A.2d 794, 798 (Pa. Super.
1997) (emphasis in original)].” Id. Our Supreme Court has since
announced that the grading of disorderly conduct as a misdemeanor does
not require substantial harm to the public or serious public inconvenience,
but rather only the intent to create substantial harm or serious
inconvenience. Commonwealth v. Fedorek, 946 A.2d 93, 100-01 (Pa.
2008).5
As our Supreme Court explained in Fedorek:
Although Section 5503 as a whole is aimed at preventing public
disturbance, it accomplishes this aim by focusing upon certain
individual acts, which, if pursued with the intent to cause public
inconvenience, annoyance, or alarm, or recklessly creating a risk
thereof, constitute the offense of disorderly conduct. These
individual acts focus upon the offender’s behavior. . . .
Significant is the fact that the General Assembly did not require
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(Footnote Continued)
5
The Supreme Court’s decision in Fedorek reversed this Court’s decision
reported at 913 A.2d 893 (Pa. Super. 2006), and abrogated not only Smith,
811 A.2d 578 (Pa. Super. 2002), but also Commonwealth v. Coon, 695
A.2d 794 (Pa. Super. 1997). Despite that fact, Appellant quotes this Court’s
opinion in Fedorek on page 13 of her brief and cites both Smith and Coon
in her brief on pages 15 and 14, respectively, without mentioning our
Supreme Court’s decision and the impact on the cited cases.
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that [a] prohibited[] act be directed at a certain number of
persons that could qualify as “the public.” Therefore, 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, the offender may be subject
to conviction for disorderly conduct. . . . Indeed, there are
numerous appellate decisions of this Commonwealth determining
evidence to be sufficient to sustain convictions for disorderly
conduct where the underlying public acts involve, as in the
instant case, the private melodramas of two or three people that
also cause or create the risk of public disturbance.
Id. at 100 (emphasis in original) (citations omitted).
Despite Appellant’s contention that her “private argument” with her
estranged husband did not constitute a “public inconvenience,” it is clear
that the argument created enough of a public inconvenience to prompt a 911
call from a resident of Appellant’s neighborhood. We agree with the trial
court that the evidence was sufficient to find that Appellant intended to
cause or created the risk of causing “public inconvenience, annoyance or
alarm.” 18 Pa.C.S.A. § 5503.
Viewing all the evidence admitted at trial in the light most favorable to
the verdict winner, we conclude there was sufficient evidence for the trial
court, as fact-finder, to find every element of disorderly conduct under 18
Pa.C.S.A. § 5503(a)(4) beyond a reasonable doubt. Therefore, we affirm
the December 16, 2013 order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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