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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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