Com. v. Little, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARBARA LITTLE :
:
Appellant : No. 568 WDA 2022
Appeal from the Judgment of Sentence Entered April 13, 2022
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-SA-0000296-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARBARA LITTLE :
:
Appellant : No. 569 WDA 2022
Appeal from the Judgment of Sentence Entered April 13, 2022
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-SA-0000297-2021
BEFORE: BOWES, J., OLSON, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: APRIL 13, 2023
In this consolidated appeal,1 Appellant, Barbara Little, appeals from the
April 13, 2022 judgments of sentence entered in the Court of Common Pleas
of Blair County after the trial court, in a summary appeal hearing, found
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1In a July 1, 2022 per curiam order, this Court consolidated, sua sponte, the
two appeals docketed in this Court at 568 WDA 2022 and 569 WDA 2022.
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Appellant guilty of two counts of disorderly conduct – unreasonable noise.2
We affirm.
The record demonstrates that, on July 5, 2021, the Allegheny Township
Police Department responded to Appellant’s residence in Duncansville,
Pennsylvania, concerning a noise complaint lodged by Appellant’s neighbor.
Following the police response, Appellant was issued two non-traffic citations
at 6:25 p.m. Citation R2994525-2 charged Appellant with disorderly
conduct – unreasonable noise for “beat[ing] a cooking pan outside her
residence making unreasonable noise throughout the day, taunting the
neighbors [and] dogs.” Citation R2994525-2, 7/7/21. Citation R2994526-3
charged Appellant with harassment – course of conduct with no legitimate
purpose for “repeatedly engaging in a conduct[,] namely beating a cooking
pan outside her residence throughout the day taunting the neighbors [and]
dogs.” Citation R2994526-3, 7/7/21 (emphasis and extraneous capitalization
omitted).
Later that same day, the police again responded to Appellant’s residence
concerning a noise complaint lodged by a different neighbor. Following the
police response, Appellant was issued two non-traffic citations at 11:22 p.m.
Citation R2994531-1 charged Appellant with disorderly
conduct – unreasonable noise for “beat[ing] cooking pans outside her
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218 Pa.C.S.A. § 5503(a)(2). As discussed infra, the trial court found Appellant
not guilty of two counts of harassment – course of conduct with no legitimate
purpose. 18 Pa.C.S.A. § 2709(a)(3).
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residence making unreasonable noise late at night taunting neighbors and
dogs.” Citation R2994531-1, 7/18/21. Citation R2994530-0 charged
Appellant with harassment – course of conduct with no legitimate purpose for
“engag[ing] in a course of conduct[,] namely beating cooking pans outside
her residence late at night taunting the neighbor and dogs.” Citation
R2994530-0, 7/18/21.
On August 16, 2021, a magisterial district judge found Appellant guilty
of two counts each of disorderly conduct and harassment. On September 2,
2021, Appellant appealed her four summary convictions to the Court of
Common Pleas of Blair County for a de novo trial pursuant to Pennsylvania
Rule of Criminal Procedure 462(A).3 See Pa.R.Crim.P. 462(A) (stating that,
“[w]hen a defendant appeals after the entry of a guilty plea or a conviction by
an issuing authority in any summary proceeding, upon the filing of the
transcript and other papers by the issuing authority, the case shall be heard
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3 Appellant was convicted of one count each of disorderly conduct (Citation
R2994525-2) and harassment (Citation R2994526-3) at magisterial district
court dockets MJ-24302-NT-0000108-2021 and
MJ-24302-NT-0000109-2021, respectively. The appeal of these two charges
was lodged with the trial court at trial court docket number
CP-07-SA-0000297-2021 (“Case 297-2021”).
Appellant was also convicted of one count each of disorderly conduct (Citation
R2994531-1) and harassment (Citation R2994530-0) at magisterial district
court dockets MJ-24302-NT-0000114-2021 and
MJ-24302-NT-0000113-2021, respectively. The appeal of these two
convictions was lodged with the trial court at trial court docket number
CP-07-SA0000296-2021 (“Case 296-2021”).
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de novo by the judge of the court of common pleas sitting without a jury”);
see also Pa.R.Crim.P. 466 (permitting a defendant to appeal a summary
conviction by filing a notice of appeal with the court of common pleas in the
judicial district in which the magisterial district court is located).
The trial court conducted a de novo trial on Appellant’s aforementioned
summary offenses on April 8, 2022. On April 13, 2022, the trial court found
Appellant guilty of two counts of disorderly conduct – unreasonable noise.4
Trial Court Order, 4/13/22. Appellant was ordered to pay an aggregate fine
of $400.00, as well as court costs.5 These appeals followed.6
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4 The trial court found Appellant not guilty of two counts of
harassment – course of conduct with no legitimate purpose. Trial Court Order,
4/13/22.
5At Case 297-2021, the trial court, upon finding Appellant guilty of one count
of disorderly conduct, ordered Appellant to pay a $100.00 fine plus court costs.
Trial Court Order, 4/13/22.
At Case 296-2021, the trial court, upon finding Appellant guilty of one count
of disorderly conduct, ordered Appellant to pay a $300.00 fine plus court costs.
Id.
6 Appellant filed a separate notice of appeal at each trial court docket in
compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and
its progeny. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
The record demonstrates that, on April 25, 2022, Appellant filed a petition for
reconsideration on the ground that Appellant’s “banging [of] pots and pans
while on her own property” did not give rise to “unreasonable noise” to support
her convictions. Pursuant to Pennsylvania Rule of Criminal Procedure 720(D),
a defendant is not permitted to file a post-sentence motion, including a motion
for reconsideration, following a trial de novo in the court of common pleas.
Pa.R.Crim.P. 720(D) (stating, “[t]he imposition of sentence immediately
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Appellant raises the following issue for our review: “Did the trial court
err by finding that the Commonwealth presented evidence beyond a
reasonable doubt that [] Appellant was guilty of the offense of [d]isorderly
[c]onduct?” Appellant’s Brief at 5.
Appellant raises a challenge to the sufficiency of the evidence to support
her convictions of disorderly conduct – unreasonable noise for which our
standard and scope of review are well-settled.
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 proof or 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 the 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.
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following a determination of guilt at the conclusion of the trial de novo shall
constitute a final order for purposes of appeal”). Therefore, the fact that the
trial court did not rule on Appellant’s petition for reconsideration before the
filing of her notices of appeal on May 13, 2022, is of no consequence because
Appellant’s petition for reconsideration was a legal nullity pursuant to Rule
720(D).
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Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004); see also
Commonwealth v. Brown, 52 A.3d 1139, 1163 (Pa. 2012) (stating that, in
reviewing a claim of insufficient evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier[-]of[-]fact could have found the essential elements of the crime
beyond a reasonable doubt” (emphasis in original)).
Section 5503(a)(2) of the Crimes Codes states that “[a] person is guilty
of disorderly conduct if, with intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof, he” or she “makes unreasonable
noise[.]” 18 Pa.C.S.A. § 5503(a)(2). It is well-settled that “the offense of
disorderly conduct is not intended as a catchall for every act which annoys or
disturbs people” and “it is not to be used as a dragnet for all the irritations
which breed in the ferment of a community.” Commonwealth v. Hock, 728
A.2d 943, 947 (Pa. 1999). Rather, the specific and definite purpose of the
disorderly conduct statute is “to preserve the public peace.” Id.; see also
Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (stating, the
disorderly conduct statute “is aimed at protecting the public from certain
enumerated acts” (original quotation marks and emphasis omitted)).
“The mens rea requirement of Section 5503[a] demands proof that [a
defendant] by her[, or his,] actions intentionally or recklessly created a risk
of causing or caused a public inconvenience, annoyance[,] or alarm.”
Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005) (citation
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and original brackets omitted). “The specific intent requirement of [Section
5503(a)] may be met by a showing of 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. (citation and original quotation
marks omitted); see also Fedorek, 946 A.2d at 100 (stating, “[a]lthough
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”).
The actus reus requirement of a disorderly conduct – unreasonable
noise offense, pursuant to Section 5503(a)(2), requires proof that a
defendant’s actions or words created noise that was unreasonable. Id.
“Under Pennsylvania law, a noise is unreasonable for the purpose of the
disorderly conduct statute where it is not fitting or proper in respect to the
conventional standards of organized society or a legally constituted
community or [is] inconsistent with neighborhood tolerance or standards.”
Commonwealth v. McConnell, 244 A.3d 44, 51 n.5 (Pa. Super. 2020), citing
Commonwealth v. Forrey, 108 A.3d 895, 898 (Pa. Super. 2015).
“Ultimately, [] what constitutes the actus reus of ‘unreasonable noise’ under
[Section 5503(a)(2)] is determined solely by the volume of the speech, not
by its content.” Forrey, 108 A.3d at 898 (citation omitted, emphasis in
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original) (stating that, the Commonwealth must present “evidence that the
volume of [a defendant’s words or actions] was inappropriate for the place in
which it occurred”).
In finding Appellant, in the case sub judice, guilty of disorderly
conduct – unreasonable noise, the trial court explained,
the evidence and testimony presented regarding [Appellant’s]
behavior demonstrated that she had the requisite mens rea under
18 Pa.C.S.A. § 5503(a). [Appellant] testified that she has had
longstanding "troubles" with [neighbors] in the area, and that she
has appeared seven or eight times at the magisterial district court
to face charges of harassment or disorderly conduct regarding
incidents involving neighbor[s]. Further, [Appellant] testified she
was dissatisfied with the police[] response to her calls [and]
complaints regarding the neighbors' dogs. She testified that she
took it upon herself to purposely engage in the banging of pots
and pans on her front lawn as a means to quiet the dogs, and that
such action was legally permissible because no local neighborhood
noise ordinance exists. [Appellant] presented no authority at trial
to support this conclusion.
Moreover, [Appellant] intentionally kept up the offensive condition
despite police involvement, directives to cease the behavior, and
a citation earlier in the evening for disorderly conduct. As such,
she clearly had the requisite mens rea to intentionally create a
risk of public inconvenience, annoyance, or alarm to sustain
conviction.
Next, the hours long repetitive beating and banging of a cooking
pot or pan in her front lawn until 11:22 p.m. clearly creates
unreasonable noise "not fitting or proper in respect to the
conventional standards of organized society or a legally
constituted community" and is "inconsistent with neighborhood
tolerance or standards." By her own words [Appellant] admitted
she created noise louder than barking dogs. Her logic of
deliberately creating louder neighborhood noise, for the purpose
of quieting other neighborhood noise, and doing so under the
misguided belief that such behavior should be tolerated because
no excessive noise ordinance exists, is flawed logic.
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[Appellant’s] public disturbance was not brief, nor confined in
scope, where despite being told by police to stop the banging of
pots and pans, she continued to do so for hours, as police were
called to her residence twice in one evening, hours apart. As such,
the noise was unreasonable.
Trial Court Opinion, 6/14/22, at 6-9 (citations omitted).
A review of the record demonstrates that the Commonwealth rested
solely on a stipulation by the parties as proof that Appellant’s actions
constituted disorderly conduct – unreasonable noise. The stipulation, stated
on the record, is as follows:
on July 5[,] 2021, in the evening hours, [Appellant] was in her
yard banging pots and pans and [a neighbor] captured this on
video[.] The [police] were called to the residence for [Appellant’s]
beating the cooking pans to allegedly agitate the dogs nearby and
when [police] officers arrived there was an observation that
[Appellant] was sitting in a chair on the front lawn facing [the
neighbor’s] residence specifically banging this pot and pan.
[Appellant] was banging pots and pans outside her residence on
that date.
Allegheny Township does not have a dog barking ordinance[,] and
[the township does not] have a noise ordinance.
N.T., 4/8/22, at 3-4. The Commonwealth did not present any additional
evidence, including the testimony of the responding police officers or the
neighbors that reported the incidents which led to the issuance of the citations.
Appellant testified that, on July 5, 2021, she was in her yard “banging
pots and pans” in an attempt to stop the neighbors’ dogs from barking because
the noise hurts the dogs’ ears. Id. at 5-6. Appellant acknowledged that there
were two noise-related incidents that evening where the police were called to
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her house. Id. at 6. The non-traffic citations show that a police officer
responded to noise complaints caused by Appellant’s “banging of pots and
pans” “throughout the day” and “late at night.” The responding police officer
issued citations at 6:25 p.m. and 11:22 p.m. Appellant explained that the
barking dogs were located 25 feet from her residence. Id. at 9. Appellant
further admitted that she received several prior citations and warnings for
disorderly conduct based upon noise complaints. Id. at 7-8 (explaining that
she had received a citation for, inter alia, sitting in her vehicle talking on the
telephone loudly and that the police responded to a neighbor’s complaint she
was playing her radio loudly, for which she was not cited).
In viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, we discern no error of law or abuse of
discretion in the trial court’s determination that Appellant “intentionally
create[d] a risk of public inconvenience, annoyance, or alarm” and that her
actions “clearly create[d] unreasonable noise”. Trial Court Opinion, 6/14/22,
at 8. Appellant testified that she has a history of being issued noise citations
by the police based upon complaints lodged by, inter alia, the neighbor living
across the street. N.T., 4/8/22, at 8 (stating that, “every time I’m outside, if
I do something that the [neighbor from across the street does not] like, [the
neighbor] call[s] the [police]”). As part of the stipulation, Appellant agreed
that she was observed, by the police, sitting in a chair in her front yard facing
the neighbor’s house across the street banging pots and pans while the
neighbor recorded her actions on video. Id. at 3-4. Appellant explained,
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however, that the dogs to which her actions of banging pots and pans were
directed, were not owned by the neighbor living across the street from her
residence Id. at 9 (explaining that the dogs did not belong to the neighbor
living across the street but, rather, belonged to “the other neighbor”).
Moreover, Appellant explained that she banged on the pots and pans to stop
the dogs from barking and that the dogs barked “all the time.” Id. at 6.
Based upon the stipulation and Appellant’s testimony, the Commonwealth
presented sufficient evidence to enable the trial court, as fact-finder, to find
the mens rea element of the disorderly conduct offense beyond a reasonable
doubt.
Regarding the actus reas element, this Court in Commonwealth v.
Alpha Epsilon Pi, 540 A.2d 580 (Pa. Super. 1988) held that “the [police]
officer’s ability to hear the noise from a distance of fifty yards” (150 feet) at
11:20 p.m. and the fact that the complainant who reported the noise lived “at
least a block away” gave rise to sufficient evidence to support a finding that
the noise was unreasonable. Alpha Epsilon Pi, 540 A.2d at 583. In
reviewing the sufficiency of the evidence to establish the element of
unreasonable noise, the Alpha Epsilon Pi Court relied on evidence
demonstrating the volume of the noise, as shown by, inter alia, how far away
the police officer and complainant were when they heard the noise, and the
time of night at which the noise occurred. Id.
In contrast, this Court in Maerz, supra, found insufficient evidence that
the noise rose to the level of being “unreasonable” based upon evidence that
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the defendant’s brief, single sentence outburst “was only as loud as a person
of her presumably ordinary physical abilities can shout,” that the outburst
occurred “in the evening [hours] prior to ordinary sleeping hours,” and
“prompted neither civil unrest nor a single neighbor to seek police
intervention.” Maerz, 879 A.2dd at 1271. Similarly, this Court in Forrey,
supra, held that the Commonwealth presented insufficient evidence to
demonstrate “unreasonable noise” where one law enforcement officer
reported that he could hear the defendant yelling at police officers alongside
a rural highway from a ten foot distance. Forrey, 108 A.3d at 898.
In the case sub judice, the evidence, viewed in the light most favorable
to the Commonwealth, demonstrates that Appellant was observed by a police
officer banging pots and pans on her property on the day in question. Citation
R2994525-2 stated that Appellant banged the pots and pans “throughout the
day” on July 5, 2021. This citation was issued at 6:25 p.m., thus permitting
the inference that Appellant had been banging pots and pans continuously
“throughout the day” leading up to the issuance of the citation. Moreover, as
discussed supra, Appellant banged the pots and pans every time the dogs
barked, and the dogs barked “all the time.” Thus, it may be inferred that
Appellant’s actions of banging pots and pans occurred prior to the issuance of
the 6:25 p.m. citation and continued throughout the evening hours until the
issuance of the 11:22 p.m. citation. While some of Appellant’s actions
occurred during “non-sleeping hours,” certainly the continuation of the actions
leading up to the 11:22 p.m. citation occurred during “sleeping hours.”
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Appellant also stated the neighbor’s dogs that were barking were located 25
feet away from her property. Thus, the noise created by Appellant’s actions
could be heard at least 25 feet away from her property.7 Furthermore, the
stipulation contains an agreement that the neighbor living across the street
recorded Appellant’s actions. Although there is no indication on the record
that the video footage was played for the trial court’s benefit or entered as
evidence, the agreement that a video of Appellant’s actions was created leads
to the reasonable inference that the noise created by Appellant’s actions was
loud enough to be heard across the street and captured on video. Therefore,
viewing the record in the light most favorable to the Commonwealth, we
conclude there was sufficient evidence to permit the trial court, as fact finder,
to conclude that the volume of noise created by Appellant’s actions rose to the
level of being “unreasonable.” Maerz, 879 A.2dd at 1271; see also Alpha
Epsilon Pi, 540 A.2d at 583.
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7 The trial court cites page 7 of the April 8, 2022 notes of testimony in support
of its finding that “[b]y her own words[, Appellant] admitted she created noise
louder than barking dogs.” Trial Court Opinion, 6/14/22, at 8, citing N.T.,
4/8/22, at 7. We have reviewed the notes of testimony and cannot find such
an admission by Appellant. Appellant does state that the neighbors’ “dogs are
barking all the time so, if I bang the pans, the dogs quit barking because it
hurts their ears.” N.T., 4/8/22, at 6. This statement by Appellant, even when
viewed in the light most favorable to the Commonwealth, does not permit an
inference that the noise created by the banging of pots and pans was louder
than the dogs’ barking. Rather, a reasonable inference drawn from this
statement demonstrates that the dogs were able to hear the noise and that
the noise, according to Appellant, hurt their ears and made them stop barking
(at least temporarily).
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Judgments of sentence affirmed.8
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2023
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8 It is clear, even from the limited record, that there is much discord in this
neighborhood and that Appellant has taken to self-help to resolve her
annoyance with, inter alia, barking dogs. The police officer’s advice to
Appellant that she consult an attorney over such matters is sound. Appellant
can also work to advance a noise ordinance in the community which would
make certain noises, at certain times prohibited. If for nothing more than the
sake of the dogs’ ears, we hope that any discord going forward can be resolved
amicably.
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