Com. v. Delong, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DINA DELONG :
:
Appellant : No. 872 MDA 2017
Appeal from the Judgment of Sentence May 3, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-SA-0000112-2017
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 21, 2017
Appellant, Dina Delong, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following her non-jury
trial conviction for the summary offense of disorderly conduct.1 We affirm.
The trial court opinion sets forth the relevant facts and procedural
history of this case as follows:
Appellant Dina Delong is the resident of a property located
at 1226 Cleveland Street, Reading, Berks County
Pennsylvania. On or about July 10, 2016, Appellant’s
neighbor had [her] porch power-washed, and following the
power-washing Appellant went onto her adjoining porch
and scooped debris onto a magazine and threw it onto her
neighbors’ freshly [power-]washed porch. Appellant’s
neighbor called the police and Appellant was issued a
citation for disorderly conduct (hazardous/physically
____________________________________________
1 18 Pa.C.S.A. § 5503(a)(4).
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offensive condition) under 18 Pa.C.S.A. Section
5503(a)(4).
On March 9, 2017, a summary trial was held before
Magisterial District Judge Nicholas M. Bentz, Jr. Appellant
was found guilty at the trial and timely appealed to
Common Pleas Court. A de novo hearing was held in this
Court on May 3, 2017. Following testimony, this [c]ourt
found Appellant guilty.
(Trial Court Opinion, filed July 24, 2017, at 1). The court ordered Appellant
to pay a $50.00 fine and court costs. Appellant timely filed a notice of
appeal on May 26, 2017. On June 6, 2017, the court ordered Appellant to
file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b), which Appellant filed on June 13, 2017.
Appellant raises the following issues for our review:
WHERE APPELLANT PUTS DEBRIS FOUND ON HER PORCH
BACK ONTO HER NEIGHBOR’S ADJOINING PORCH WHICH
SHE ASSUMES CAME FROM THE POWER WASHING OF HER
NEIGHBOR’S PORCH, IS THE EVIDENCE INSUFFICIENT TO
SUSTAIN THE VERDICT OF GUILTY OF DISORDERLY
CONDUCT (HAZARDOUS/PHYSICIALLY OFFENSIVE
CONDITION), 18 PA.C.S.A. SECTION 5503(A)(4), FOR THE
FOLLOWING REASONS:
(1) APPELLANT’S ACTIONS DID NOT CREATE A
HAZARDOUS OR PHYSICALLY OFFENSIVE CONDITION
BY ANY ACT WHICH SERVED NO LEGITIMATE
PURPOSE[?]
(2) APPELLANT DID NOT ACT WITH INTENT
TO…CREATE PUBLIC INCONVENIENCE, ANNOYANCE OR
ALARM, OR RECKLESSLY CREATE A RISK THEREOF[?]
(Appellant’s Brief at 5).
When examining a challenge to the sufficiency of the evidence, our
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standard of review is as follows:
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 [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
Appellant argues she found debris on her porch, which she assumed
came from the power-washing of her neighbors’ porch, and put that debris
back onto her neighbors’ porch. Appellant contends her actions did not
create a hazardous or physically offensive condition. Likewise, Appellant
submits she did not intend to or risk or create a public inconvenience,
annoyance or alarm. Appellant concedes her actions were un-neighborly but
they were not disorderly and did not occur in the “public arena,” but on
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private property, so there was no public disturbance. Appellant concludes
the Commonwealth did not present sufficient evidence to sustain her
summary conviction for disorderly conduct, and this Court must reverse her
conviction and judgment of sentence. We disagree.
The Pennsylvania Crimes Code defines disorderly conduct as follows:
§ 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.
(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.
(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.
18 Pa.C.S.A. § 5503(a)(4)-(c).
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
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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.
Commonwealth v. Fedorek, 596 Pa. 475, 487, 946 A.2d 93, 100 (2008)
(emphasis in original). In other words, a violation of this statute must
involve some jeopardy to the public peace. Commonwealth v. Mauz, 122
A.3d 1039, 1041 (Pa.Super. 2015).
To prove intent, the Commonwealth must establish the defendant, by
her actions intentionally or recklessly created a risk of causing or caused a
public inconvenience, annoyance or alarm. Commonwealth v. Maerz, 879
A.2d 1267 (Pa.Super. 2005). Intent may be shown by “a reckless disregard
of the risk of public inconvenience, annoyance, or alarm, even if the
[defendant’s] intent was to send a message to a certain individual, rather
than to cause public inconvenience, annoyance, or alarm.” Id. at 1269. To
establish recklessness, the defendant’s actions must show a “conscious
disregard of a substantial and unjustifiable risk that public annoyance or
alarm would result from her conduct, or a gross deviation from the standard
of conduct that a reasonable person would observe in her situation.”
Commonwealth v. Troy, 832 A.2d 1089, 1094 (Pa.Super. 2003) (quoting
Commonwealth v. Weiss, 490 A.2d 853, 857 (Pa.Super. 1985)). “The
reckless creation of a risk of public alarm, annoyance or inconvenience is as
criminal as actually causing such sentiments.” Commonwealth v.
Reynolds, 835 A.2d 720, 731 (Pa.Super. 2003). A porch of a house can be
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considered a public place in this context, where it is generally accessible to
the public, such as mail carriers, delivery persons, guests, invitees,
solicitors, etc. See generally Commonwealth v. Gibbs, 981 A.2d 274,
280 (Pa.Super. 2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010).
Instantly, the trial court reasoned:
Here, Appellant is mistaken in the assertion that “Appellant
did not act with intent to create or create public
inconvenience. annoyance or alarm, or recklessly create a
risk thereof.” The Supreme Court has determined that
intent to cause serious inconvenience to a single individual
is sufficient for conviction. This [c]ourt determined, based
on the evidence, that Appellant intended to create
annoyance or inconvenience to her neighbor.
This [c]ourt assessed the evidence, which included a video
of Appellant’s actions, and determined that Appellant acted
with the intent to cause a physically offensive condition to
her neighbor. This [c]ourt further believes that Appellant’s
actions had no legitimate purpose, but instead were for the
sole purpose of causing physical offense to her neighbor.
(Trial Court Opinion at 3). The record supports the court’s decision. Here,
Appellant dumped debris on her neighbor’s porch after her neighbor had just
had her porch power-washed. Both sides of the shared porch were
accessible to the general public and divided only by a railing. Therefore, for
purposes of this statute, the scooping and dumping took place in a “public
arena.” Accordingly, we affirm.
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Judgment of sentence affirmed.
Judge Ott joins this memorandum.
Judge Shogan notes her dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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