J-A31045-14


                                   2015 PA Super 11

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT STEPHEN FORREY

                            Appellant                   No. 2159 MDA 2013


     Appeal from the Judgment of Sentence entered November 12, 2013
               In the Court of Common Pleas of Adams County
              Criminal Division at No: CP-01-CR-0000544-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

OPINION BY STABILE, J.:                               FILED JANUARY 16, 2015

       Appellant, Robert Stephen Forrey, appeals the judgment of sentence

entered for his convictions of scattering rubbish and disorderly conduct

(unreasonable noise).         We agree with Appellant that the evidence of

unreasonable noise is insufficient to sustain his conviction of disorderly

conduct. Accordingly, we affirm in part and reverse in part.

       On the evening of June 3, 2013, two Pennsylvania State Police

troopers were patrolling U.S. Route 15 in Adams County.1 At about 11:45

p.m., they observed a red Dodge pickup truck stopped on the shoulder. The

truck’s lights were off, and it appeared to be disabled. The troopers parked

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1
 Unless otherwise noted, we take this factual summary from the Trial Court
Pa.R.A.P. 1925(a) Opinion, 1/28/14, at 1-3.
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behind the truck, activated the police car’s emergency lights for safety, and

got out to investigate.

        After the troopers exited their vehicle to speak to Appellant, they

discovered a large debris trail extending from the truck about 25′ to 75′

down an embankment and into a wooded area. The debris included glass,

papers, mail, TVs, VCRs, large boxes, trash bags with clothes, clocks, what

appeared to be a stereo cabinet, and a United States flag.

        Appellant gave the troopers his name and address, but refused to

answer other questions.          Instead, he began to scream and curse.     He

repeatedly walked to the roadway, toward oncoming traffic.        One of the

troopers placed Appellant in handcuffs to prevent him from running away.

During the encounter, Appellant yelled at the troopers, “all you fucking cops

are communists just like Obama,” “[t]his fucking country sucks,” and “[y]ou

better watch your back.” N.T. Summary Trial, 11/12/13, at 6-7. Appellant

was yelling loud enough that one of the troopers could hear him ten feet

down the embankment.              At some point, officers from a local police

department arrived to assist the troopers.

        The troopers arrested Appellant and charged him with misdemeanor

desecrating a flag of the United States, summary scattering rubbish, and

summary disorderly conduct by making unreasonable noise.2           Appellant

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2
    18 Pa.C.S.A. §§ 2102(a)(4), 6503(a)(1), and 5303(a)(2), respectively.



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could not make the $1,500.00 monetary bail, and spent eight days in the

county prison until he negotiated a reduction in bail.   Appellant requested

dismissal of the flag-desecration charge, challenging the constitutionality of

the statute.   In response, the Commonwealth requested the charge be

withdrawn, or for the trial court to enter a nolle prosequi (the record is

unclear).   The trial court dismissed the charge pretrial, found Appellant

guilty of the two remaining offenses after a summary trial, and imposed

fines of $200.00 for each offense, plus costs. After his post-sentence motion

was denied, Appellant appealed to this Court.

      Appellant challenges his disorderly conduct conviction on two fronts.

First, he argues his statements did not constitute unreasonable noise,

because no members of the public were present at the scene, and the

incident occurred on the shoulder of a highway in a sparsely populated area.

Second, he argues his statements are protected speech under the First

Amendment.

      In challenges to the sufficiency of the evidence, “our standard of

review is de novo, however, our scope of review is limited to considering the

evidence of record, and all reasonable inferences arising therefrom, viewed

in the light most favorable to the Commonwealth as the verdict winner.”

Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). Evidence is

sufficient if it can support every element of the crime charged beyond a

reasonable doubt. Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa.

Super. 2014). The evidence does not need to disprove every possibility of

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innocence, and doubts as to guilt, the credibility of witnesses, and the

weight of the evidence are for the fact-finder to decide.    Id.   We will not

disturb the verdict “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.” Id. (quotation omitted).

      As charged in this case, “[a] person is guilty of disorderly conduct if,

with intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, he . . . makes unreasonable noise[.]” 18 Pa.C.S.A.

§ 5503(a)(2). The 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 definite objective, it is intended to
      preserve the public peace.

Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005)

(quotation omitted).

      As explained in Maerz, we use a two-part test to determine whether a

person’s actions constitute disorderly conduct (unreasonable noise). Id. A

court looks at the content of a person’s speech only to infer the requisite

mens rea (intent or recklessness).          Id.   “Ultimately, however, what

constitutes the actus reus of “unreasonable noise” under the disorderly

conduct statute is determined solely by the volume of the speech, not by

its content.” Id. (emphasis in original).

      “Pennsylvania law defines unreasonable noise as ‘not fitting or proper

in respect to the conventional standards of organized society or a legally

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constituted community.’” Commonwealth v. Gilbert, 674 A.2d 284, 287

(Pa. Super. 1996) (quoting Commonwealth v. Mastrangelo, 414 A.2d 54,

58 (Pa.), appeal dismissed, 449 U.S. 894 (1980)).

     In Maerz, for example, the defendant’s single, profane outburst yelled

at a neighbor across the street at 9:45 p.m. was deemed insufficient

unreasonable noise to constitute disorderly conduct.     Maerz, 879 A.2d at

1270. The Commonwealth failed to show that the outburst jeopardized the

public peace, or that the noise was “absolutely inconsistent with the

residential neighborhood’s tolerance levels or standards. No evidence

was offered as to why the public peace in this particular neighborhood could

not survive a passing, albeit very loud, vocal noise during evening hours.”

Id. at 1271 (emphasis added).

     Similarly, in Gilbert, we found insufficient evidence of unreasonable

noise where the defendant “openly disagreed” with a police officer who was

towing his neighbor’s car. Gilbert, 674 A.2d at 285-86. At best, the record

reflected that the defendant spoke to the officer and yelled across the street

to his neighbor.   Id. at 287.   “The arresting officer testified that half the

neighbors eventually came out to the street to view the ‘ruckus.’ However,

no evidence was produced that that the level of noise was inconsistent

with neighborhood tolerance or standards.” Id. (emphasis added).

     In contrast, in Commonwealth v. Alpha Epsilon Pi, 540 A.2d 580,

583 (Pa. Super. 1988), we affirmed a disorderly conduct citation of a college




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fraternity where noise from its late-night partying could be heard fifty yards

away from the fraternity house.

       Given the time of day, the officer’s ability to hear the noise from
       a distance of fifty yards during a warm, summer night, and the
       initial complaint to the officer which was made by a resident
       living at least one block away, we cannot say that the trier of
       fact could not have found the noise to have been unreasonable.

Id.

       Viewing all the evidence in this case in a light most favorable to the

Commonwealth, Appellant’s conviction of disorderly conduct cannot stand.

The evidence of unreasonable noise is insufficient.        The Commonwealth

failed to present any evidence that the volume of Appellant’s speech was

inappropriate for the place at which it occurred: alongside a rural highway,

out of hearing of any residential community or neighborhood.                 The

Commonwealth correctly points out that Appellant was yelling loud enough

that a trooper heard him down the trash-strewn embankment.            However,

even when viewing the evidence in a light most favorable to the

Commonwealth, there is no evidence that any member of the public heard

Appellant.     The arresting troopers could not account for the number of

motorists who passed by, and none of the troopers or police officers testified

that any driver noticed Appellant based on the volume of his outburst.3 Id.

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3
  We emphasize that we do not condone Appellant’s boorish, intemperate
actions.  Additionally, because Appellant was not charged under other
subsections of 18 Pa.C.S.A. § 5503(a), we express no opinion whether
(Footnote Continued Next Page)


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      It is true that a highway is, by statute, a public place. 18 Pa.C.S.A.

§ 5503(c).    However, being in public is merely necessary, but not alone

sufficient, to convict of disorderly conduct.     The Commonwealth must also

prove the particular act requirement, that the noise here was unreasonable,

i.e., inconsistent with neighborhood tolerance or standards.     Gilbert, 674

A.2d at 287. The evidence here does not support such a finding. Highways

and rural, sparsely populated areas have a higher tolerance for loud noises,

unlike residential neighborhoods. See Commonwealth v. Koch, 431 A.2d

1052, 1058 (Pa. Super. 1981) (en banc) (holding that “continuous barking of

dogs, albeit most annoying, housed in a kennel in a rural community” did

not constitute unreasonable noise sufficient to sustain disorderly conduct

citation).   In this case, no evidence supports the finding that Appellant’s

shouts—though loud—were heard by any passing drivers.               Like the

proverbial tree falling in a forest, noise is not unreasonable if nobody hears



                       _______________________
(Footnote Continued)

evidence might be sufficient to sustain a conviction under those other
subsections.

We recognize that Appellant wandered toward the roadway and oncoming
traffic, causing the troopers to handcuff him, and that he threatened the
troopers. These actions, however, cannot sustain his conviction of disorderly
conduct as charged. Appellant was not charged with disorderly conduct by
“creat[ing] a hazardous or physically offensive condition by any act which
serves no legitimate purpose of the actor,” or by “enga[ing] in fighting or
threatening, or in violent or tumultuous behavior.”           18 Pa.C.S.A.
§ 5503(a)(1) and (4).



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it, because noise that is heard by no member of the public cannot be

inconsistent with community or neighborhood standards.

       The Commonwealth argues that it needed to prove only that a

member of the public could have heard Appellant.              Appellee’s Brief at 21

(discussing Mastrangelo).            In Mastrangelo, 414 A.2d at 55-56, the

defendant hurled insults at a meter maid on the public street of a borough in

full view and hearing of bystanders.             The passage of Mastrangelo the

Commonwealth quotes, however, is from the factual background section of

our Supreme Court’s opinion.          The main issues were facial and as-applied

constitutional challenges to 18 Pa.C.S.A. § 5503(a)(2). Our Supreme Court

summarily      disposed      of    the    defendant’s    sufficiency-of-the-evidence

argument, and included no detailed discussion as to the evidence necessary

to show unreasonable noise.          Rather, the talisman of unreasonableness is

whether the noise level is inconsistent with the standards of a recognized

neighborhood      or    community.         As    we   have   explained   above,   the

Commonwealth did not meet that standard here.

       The Commonwealth cannot sustain Appellant’s conviction of disorderly

conduct. Appellant’s outburst does not meet the standard of unreasonable

noise required by 18 Pa.C.S.A. § 5503(a)(3).4 The judgment of sentence is


____________________________________________


4
  In light of our conclusion, we need not address Appellant’s argument that
his outburst constituted speech protected by the First Amendment. See
Commonwealth v. Einhorn, 911 A.2d 960, 977 n.10 (Pa. Super. 2006)
(Footnote Continued Next Page)


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J-A31045-14



reversed in part, and the case is remanded to the trial court to remit the

$200.00 fine for disorderly conduct.

      Judgment of sentence affirmed in part and reversed in part.         Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




                       _______________________
(Footnote Continued)

(“[A] court should not reach [a] constitutional claim if a case can properly be
decided on non-constitutional grounds[.]”).



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