J-S54027-17

                                  2017 PA Super 335



 COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

 N.M.C.

                             Appellant                  No. 225 WDA 2017


              Appeal from the Judgment of Sentence January 6, 2017
                In the Court of Common Pleas of Clearfield County
               Criminal Division at No(s): CP-17-SA-0000035-2016


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

OPINION BY MOULTON, J.:                               FILED OCTOBER 23, 2017

       N.M.C. appeals from the January 6, 2017 judgment of sentence entered

in the Clearfield County Court of Common Pleas following his bench trial

conviction for disorderly conduct – creates a hazardous or physically offensive

condition.1 Because we conclude that the evidence is insufficient to sustain

the conviction, we vacate N.M.C.’s judgment of sentence.

       On May 10, 2016, at approximately 1:15 p.m., then-14-year-old N.M.C.

used his cell phone to video-record a fight between two other male students

that occurred in the boys’ bathroom at Dubois Area Middle School. The 45-

second video shows two male students talking, squaring off, shoving each

____________________________________________


       *   Former Justice specially assigned to the Superior Court.

       1   18 Pa.C.S. § 5503(a)(4).
J-S54027-17



other, and throwing several punches. In the background of the video, a male

student exposes his buttocks to the camera and another is standing at a urinal

behind a divider. That evening after school, N.M.C. sent the video via text

message to his girlfriend and one other student. On May 11, 2016, a third

student asked N.M.C. if he could see the video, but N.M.C. refused to show it

to him.

       On May 11, 2016, the assistant principal, Michael Maholtz, learned of

the fight. Maholtz confronted the combatants and eyewitnesses to the fight,

who did not tell Maholtz the truth about the altercation.            After these

interviews, Maholtz received a copy of the video from N.M.C.’s girlfriend. The

video helped Maholtz identify the participants as well as other students

present for the fight,2 and Maholtz subsequently conducted additional

interviews. When first interviewed, N.M.C. admitted that he witnessed the

fight but did not reveal that he had taken a video. Shortly thereafter, N.M.C.

provided a second statement, in which he admitted to recording the fight.

       N.M.C. was cited for disorderly conduct – creates a hazardous or

physically offensive condition.        On August 15, 2016, a magisterial district

judge held a summary trial and found N.M.C. guilty. On September 7, 2016,

N.M.C. appealed to the court of common pleas.

       On January 6, 2017, the trial court held a de novo trial.         At trial,

Assistant Principal Maholtz testified that he was alarmed because the fight
____________________________________________


       2Both participants, N.M.C., and some of the other students present for
the fight were disciplined by the school.

                                           -2-
J-S54027-17



occurred in a restroom where there are “many safety hazards” and that there

had been a “rash of these incidents prior to this one.” N.T., 1/6/17, at 10.

Maholtz also testified that this was the first such incident that had been video-

recorded, that it was not common to see students video-record fights, and

that the administration was attempting to “prevent these [incidents] from

happening due to the national trend.” Id. at 16-17.

      N.M.C. testified in his own defense. He stated that went to the restroom

to watch the fight, that he had not planned in advance to record the fight, that

he did not publish the video on social media, and that he did not intend to

cause or promote more fights.       Id. at 20-21.    When asked why he had

recorded the fight, N.M.C. said he wanted to have evidence that he was not

fighting. Id. at 23. He further stated that he text-messaged the video only

to his girlfriend and to one other student, id., and that he did not show the

video to anyone else. Id. at 24, 26.

      N.M.C. also presented the testimony of one of the participants, who

stated that he did not know the fight was being recorded, that he did not tell

anyone he was going to fight the other student, and that N.M.C. entered the

bathroom right before the other combatant entered. Id. at 29-31.

      In closing, N.M.C.’s counsel argued that the Commonwealth had failed

to prove the creation of a hazardous or physically offensive condition. Id. at

32-33. The Commonwealth’s closing argument was as follows:

            This case is very straight[-]forward. I don’t think there
         is much of dispute about what happened in this case. For


                                      -3-
J-S54027-17


           me personally, I can see why this type of behavior shouldn’t
           be tolerated.

              I can see why it does create a hazardous condition. It
           encourages fighting. It promotes fighting. It encourages
           these videos to be spread around and kids to be
           embarrassed by this type of behavior, like maybe getting
           beat up in the video or something like that and having it
           posted online or in text messages like in this case, I think it
           entices individuals to get in fights. It makes them look
           tough. And that’s why, I guess, overall, I would ask the
           Court to find [N.M.C.] guilty here today.

Id. at 33.

       At the conclusion of the trial, the trial court found N.M.C. guilty:

              Okay. Well, it has been a long time since I have been in
           high school. I suppose back at that time, if there is a fight,
           yeah, I suppose a lot of people wanted to go see the fight.

              Of course, as we get older and wiser, then we realize
           where there is a fight, you want to go the other direction as
           fast as you possibly can.

               All that being said, I think the Commonwealth has proven
           its case. I think he is guilty of the disorderly conduct
           section.

Id. at 33-34. The trial court sentenced N.M.C. to 90 days’ probation, 35 hours

of community service, and ordered N.M.C. to pay a $100 fine and court costs. 3

On February 3, 2017, N.M.C. timely filed a notice of appeal.

       N.M.C.’s sole issue on appeal is:

           Whether the lower court erred in finding [N.M.C.] guilty of
           disorderly conduct and that the Commonwealth presented
           sufficient evidence to prove the same when it[] determined
           that by sharing a video of the fight[, N.M.C.] committed an
____________________________________________


       Because N.M.C. was charged with a summary offense, rather than a
       3

misdemeanor offense, his case did not go to juvenile court. Nevertheless,
given N.M.C.’s age and our disposition, we refer to him here by his initials.

                                           -4-
J-S54027-17


           act that created a hazardous or physically offensive
           condition; that sending of the video to two other teenagers
           recklessly created a risk of public annoyance or alarm; and
           that the video served no legitimate purpose?

N.M.C.’s Br. at 5 (full capitalization and trial court answer omitted).

      N.M.C. argues that the evidence was insufficient to convict him of

disorderly conduct – creates a hazardous or physically offensive condition.

According to N.M.C., the Commonwealth failed to prove that N.M.C.’s acts of

recording the fight and sending it to two people created a hazardous or

physically offensive condition because “he did not do any acts which could be

construed as ‘public unruliness’ which could or did lead to ‘tumult and

disorder.’”   N.M.C.’s Br. at 14.   N.M.C. asserts that “the Commonwealth

presented absolutely no evidence that sending the video of a fight to two (2)

individuals would incite danger or that this type of behavior tends to

encourage or promote physical violence.”       Id. at 15.   In addition, N.M.C.

contends that the Commonwealth presented no evidence that N.M.C. sent

words in those messages that would “encourage and incite violence,” that the

combatants in the fight “were motivated by seeing a similar video,” or that

possible dissemination of the video led the combatants to fight. Id. Finally,

N.M.C. contends that he did not create a “physically offensive condition”

because his actions were not “direct assaults on the physical senses of

members of the public.” Id. at 16. We agree.

      Our standard of review for a sufficiency of the evidence claim is as

follows:



                                      -5-
J-S54027-17


            We must determine whether the evidence admitted at
        trial, and all reasonable inferences drawn therefrom, when
        viewed in a light most favorable to the Commonwealth as
        verdict winner, support the conviction beyond a reasonable
        doubt. Where there is sufficient evidence to enable the trier
        of fact to find every element of the crime has been
        established beyond a reasonable doubt, the sufficiency of
        the evidence claim must fail.

            The evidence established at trial need not preclude every
        possibility of innocence and the fact-finder is free to believe
        all, part, or none of the evidence presented. It is not within
        the province of this Court to re-weigh the evidence and
        substitute our judgment for that of the fact-finder. The
        Commonwealth’s burden may be met by wholly
        circumstantial evidence and any doubt about the
        defendant’s guilt is to be resolved by the fact[-]finder unless
        the evidence is so weak and inconclusive that, as a matter
        of law, no probability of fact can be drawn from the
        combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

     Pennsylvania’s disorderly conduct statute provides as follows:

        (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.




                                     -6-
J-S54027-17



18   Pa.C.S.    §   5503(a).4       We    have   defined   the   relevant   terms   of

subsection(a)(4) as follows:         “A ‘hazardous condition’ is a condition that

involves danger or risk[,]” particularly of “injuries resulting from public

disorders.” Commonwealth v. Williams, 574 A.2d 1161, 1164 (Pa.Super.

1990).     “Although a precise definition of ‘physically offensive condition’ is

elusive, this term encompasses direct assaults on the physical senses of

members of the public.” Id.

       The issue in this case is whether N.M.C. created a hazardous condition

or a physically offensive condition by video recording the incident and

disseminating the video to two other students.         Based on our review of the

record and the prosecution’s theory of the case, the basis for the trial court’s

decision was that N.M.C created a hazardous condition by text messaging the

video to two students, because the video could have been further

disseminated to other students and thereby encourage future fighting. There

are only a handful of cases addressing the “hazardous or physically offensive

condition” element of subsection 5503(a)(4), and this appears to be a matter

of first impression in Pennsylvania.

       In Williams, we overturned a conviction for disorderly conduct –

creates a hazardous or physically offensive condition where the appellant

drove to an apartment complex parking lot, “removed his trousers, exited his

____________________________________________


       4N.M.C. was charged and convicted under subsection (a)(4). We
express no opinion about whether his conduct fell within any of the other
subsections.

                                           -7-
J-S54027-17



car,” and entered a vehicle that did not belong to him. Id. at 1162. We could

not conclude “that appellant created a significant risk or danger of injury to

anyone,” reasoning that:

         [a]ppellant walked silently through a residential parking lot
         after midnight and entered a vacant car. His conduct was
         neither boisterous nor confrontational. He did not threaten
         any residents of the apartment house. There is no evidence
         that he distracted passing motorists or obstructed any exit
         or thoroughfare.      The most serious consequence of
         appellant’s odd behavior was that a single vehicle in the lot
         sustained damage to the molding around its windows. Such
         minor act of vandalism cannot be said to constitute a
         hazardous condition.

Id. at 1164. We also concluded that the appellant did not create a “physically

offensive condition”:

         Although a precise definition of “physically offensive
         condition” is elusive, this term encompasses direct assaults
         on the physical senses of members of the public. A
         defendant may create such a condition if she sets off a “stink
         bomb”, strews rotting garbage in public places, or shines
         blinding lights in the eyes of others. See Model Penal Code
         and Commentaries § 250.2 commentary at 347 (Official
         Draft and Revised Comments 1980). . . .

            In the instant case, appellant did not directly assault the
         senses of the residents of the apartment house. Appellant
         did not invade the residents’ physical privacy. All appellant
         did was enter a car belonging to someone else while dressed
         in his underwear. Although appellant was inadvertently
         observed by one of the tenants, we cannot say that she was
         physically offended by his conduct. For some, the idea of
         wearing underwear in public may be morally offensive. Yet,
         the sight of a person in underwear is no more physically
         offensive than the sight of a person dressed in other
         eccentric costumes that from time to time come into
         fashion.    In order to affirm appellant’s conviction for
         disorderly conduct, we would have to stretch the words of
         the statute beyond all reasonable bounds.

                                     -8-
J-S54027-17



Id. at 1164-65 (internal footnote omitted; emphasis in original).

      In contrast, in Commonwealth v. Roth, 531 A.2d 1133 (Pa.Super.

1987), we concluded that a group of activists who sought to place a large

piece of scrap iron on a church’s altar in protest of the church’s practices,

despite multiple warnings by the church not to do so, created a “hazardous

condition” within the meaning of section 5503(a)(4):

            The occurrences of that day were steeped in an
         emotionally charged atmosphere. Some members of the
         congregation who knew of the demonstrators’ plans
         refrained from attending services that day. Those who
         attended were frightened for their safety as well as for the
         welfare of the young and elderly members present. The fear
         was grounded partly on the literature concerning the
         demonstration. A certain amount of apprehension was
         caused by fear of a reoccurrence of a “skunk oil” attack
         which had been visited upon the Church during a prior
         Christmas celebration.

            Accompanying the fear of many was the determination
         of others not to allow their services to be disrupted. Ushers
         were stationed at each entrance of the church building to
         ensure the congregation’s safety. Some of these ushers
         expressed that they would not permit any demonstrators to
         enter the building. Another parishioner stationed himself at
         the top of the steps leading to the Church nursery so that
         no one could disturb the children present there.

            It is apparent from our reading of the record that many
         of the Church members felt that their Church was under
         siege while others were determined not to “let the battle be
         fought” inside their church. When Appellants proceeded to
         disrupt the Church services, albeit peacefully, they in reality
         engendered a “hazardous” condition. Appellant’s conduct of
         moving towards the Church’s property certainly created a
         dangerous situation in which altercations between the
         demonstrators and Church members could have occurred.

Id. at 1137 (internal citations omitted).


                                      -9-
J-S54027-17



      Viewing the evidence in the light most favorable to the Commonwealth,

we conclude that the evidence failed to prove, beyond a reasonable doubt,

that N.M.C. created a hazardous or physically offensive condition. The record

shows that N.M.C. recorded a fight between two students and then

disseminated the video to two other students. Under these circumstances,

we cannot conclude that he created “a condition that involves danger or risk”

of “injuries resulting from public disorders,” or a condition that assaulted the

senses of members of the public. Williams, 574 A.2d at 1164.

      Here, N.M.C.’s conduct did not create the sort of danger or risk that we

found sufficient in Roth. At trial, Maholtz testified that although similar fights

had occurred before, this was the first time that he had seen video evidence

of a fight, and that the school administration was attempting to prevent this

behavior “from happening due to the national trend.” N.T., 1/6/17, at 16.

Having viewed the video and considered its very limited dissemination, we

conclude that the Commonwealth failed to show that N.M.C.’s dissemination

of the video to two people created or risked creation of a “hazardous condition”

within the meaning of subsection (a)(4).

      Similarly, the prosecution failed to prove that N.M.C.’s dissemination of

the video created or risked creation of a “physically offensive condition.” We

recognize that the video’s subject matter may be unsettling.          Nor do we

discount the prosecutor’s comment in closing argument that “I can see why




                                      - 10 -
J-S54027-17



this type of behavior shouldn’t be tolerated,” at least not by school officials. 5

Nevertheless,     the   evidence     presented     does   not   show   that   N.M.C.’s

dissemination of the video or its content directly assaulted the physical senses

of members of public.6        As in Williams, while some may find the video’s

content morally offensive, we cannot say that its content is as physically

offensive as “set[ting] off a ‘stink bomb’, strew[ing] rotten garbage in public

places, or shin[ing] blinding lights in the eyes of others.” Williams, 574 A.2d

at 1164-65.

       In its opinion, the trial court concluded that the evidence was sufficient

to convict N.M.C.:

           [t]he real issue here is not so much that [N.M.C.] took the
           violent and graphic video, but that he, thereafter,
           distributed it to two other individuals via text message.
           [N.M.C.] was well aware that by sending the video to other
           individuals, there was a high risk of the video becoming
           subsequently available to the public. Further, had the video
           become public, it certainly could have incited danger, as this
           type of violent video tends to encourage and promote
           physical violence, especially amongst adolescents.[7]
____________________________________________


       5We recognize that video recording of fights in schools has become an
issue for school administrations across the country. See, e.g., Bill would
make recording and posting fight videos illegal, CBS News, 2/19/16, available
at https://www.cbsnews.com/news/bill-would-make-recording-and-posting-
fight-videos-illegal (reporting on proposed legislation in Illinois to criminalize
recording fights with purpose of sharing those videos online).

       6 We leave for another day the question whether wider dissemination of
such material on social media networks could create a hazardous condition
within the meaning of subsection 5503(a)(4).
       7 We also recognize that the trial court’s decision rests in part on the

fact that N.M.C. video recorded this fight in school and sent the video to two



                                          - 11 -
J-S54027-17


          Therefore, the Court believes that [N.M.C.]’s distribution of
          the video engendered danger or the risk of additional fights.
          Further, because [N.M.C.] recognized that sharing this
          violent and graphic video could have resulted in its
          availability to the public, the Court believes [N.M.C.]
          recklessly created a risk of public annoyance or alarm.

Opinion Pursuant to PA. R.A.P. 1925(a), 3/30/17, at 3. We disagree.

       The trial court’s conclusion stretches the disorderly conduct statute too

far. The trial court posits that because N.M.C. knew the initial two recipients

could have further disseminated his video, N.M.C. knew that the video could

have incited other students to fight.              The Commonwealth’s evidence,

however, only shows that N.M.C. disseminated the video to two other students

via text message. The Commonwealth did not present the testimony of those

recipients, let alone any evidence that they were personally offended by the

video’s contents or that they even considered further dissemination.8

Accordingly, the evidence does not show that N.M.C.’s dissemination of the

video created a condition involving danger or risk of injury to others.

       We are reminded that

          [t]he offense of disorderly conduct is not intended as a
          catchall for every act which annoys or disturbs people; it is
          not to be used as a dragnet for all the irritations which breed
          in the ferment of a community. It has a specific purpose; it
          has a definitive objective, it is intended to preserve the
____________________________________________


schoolmates. While we understand the concerns of school administration, see
supra, note 5, from a sufficiency perspective our analysis would not be
different if reviewing a similar incident involving adult patrons at a bar. We
also note that no one suggests that this incident, and N.M.C.’s role in this
incident, did not warrant school discipline.
       8 As noted above, one of these students showed the video to Assistant

Principal Maholtz.

                                          - 12 -
J-S54027-17


         public peace; it has thus a limited periphery beyond which
         the prosecuting authorities have no right to transgress any
         more than the alleged criminal has the right to operate
         within its clear outlined circumference.

Commonwealth v. Hock, 728 A.2d 943, 947 (Pa. 1999) (quoting

Commonwealth v. Greene, 189 A.2d 141, 145 (Pa. 1963)). While we do

not condone the behavior of N.M.C. or his classmates, we conclude that the

evidence before the trial court was insufficient to prove that N.M.C. created a

hazardous or physically offensive condition.

      Judgment of sentence vacated.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2017




                                    - 13 -
