J-S44013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SAMUEL WILLIAMS, III                       :
                                               :
                       Appellant               :   No. 2396 EDA 2017

             Appeal from the Judgment of Sentence May 10, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005843-2016


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 15, 2018

        Samuel Williams, III, appeals from the judgment of sentence, entered

in the Court of Common Pleas of Delaware County, after he was convicted of

three counts of disorderly conduct.1 After careful review, we affirm in part

and vacate in part.

        On August 25, 2016, Officer Andrew Maull of the SEPTA Transit Police

Department was parked near a bus station logging hours in his patrol car when

he heard yelling, screaming, and a bus operator honking his horn. Officer

Maull walked over and observed Williams screaming at the top of his lungs,

“mother f---er, f---er” and “shut the f--- up, b----” at the bus driver, in view

of a crowd of approximately twenty people. N.T. Trial, 5/10/17, at 9. Officer

Maull made numerous requests for Williams to leave and requested his

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1   18 Pa.C.S.A. §§ 5503 (a)(1)-(3).
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identification, which Williams refused to provide. Williams insisted that “he

would do what he wants until handcuffs are put on him.” N.T. Trial, 5/10/17,

at 10. The officer produced handcuffs and attempted to restrain Williams,

who slapped the handcuffs away from his wrist. Officer Maull displayed his

taser, which prompted Williams’ companion to jump in front of Williams. By

this time, a considerable crowd had formed and was becoming hostile, and

Maull called to request backup, resulting in approximately twelve Upper Darby

Police Officers arriving on the scene. Eventually, Maull managed to handcuff

Williams and place him under arrest.

        The Commonwealth charged Williams with four counts of disorderly

conduct2 and one count of resisting arrest.3 After a preliminary hearing on

September 12, 2016, the trial court dismissed the resisting arrest charge and

the section 5503(a)(4) count of disorderly conduct. On May 10, 2017, the

trial court amended Williams’ third-degree misdemeanor counts of disorderly

conduct to summary offenses.

        A non-jury trial commenced that same day. Officer Maull and Williams

were the sole witnesses. The court determined that Officer Maull was credible,

and accepted his account of the incident, detailed above, as fact. Williams,

however, offered dramatically different testimony. Williams claimed he never

yelled or screamed during the entire incident, and that Officer Maull ran up to

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2   18 Pa.C.S.A. §§ 5503 (a)(1)-(4).

3   18 Pa.C.S.A. § 5104.

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him and “came straight to [his] face,” demanding to see identification. N.T.

Trial, 5/10/17, at 30. According to Williams, he threw his hands up as soon

as Officer Maull pulled out his handcuffs. Williams disputed even the smallest

details of Officer Maull’s testimony, including the gender of the bus operator.

      The trial court convicted Williams of three counts of disorderly conduct

and sentenced him to 30 days’ incarceration for each count, running

concurrently. On May 18, 2017, Williams filed a motion for reconsideration of

sentence, which was denied. Williams timely appealed. Both he and the trial

court have complied with Pa.R.A.P. 1925.

      On appeal, Williams presents the following issues for review:

   (1)   Whether the trial court properly concluded that the
         Commonwealth sufficiently proved [Williams] guilty of
         disorderly conduct beyond a reasonable doubt, based upon the
         complete lack of evidence that [Williams] intended to cause
         public inconvenience, annoyance or alarm, or recklessly
         creating a risk thereof:

             (a)   Engaged in fighting or threatening, or in violent or
                   tumultuous behavior?

             (b)   Made unreasonable noise?

             (c)   Used obscene language, or made obscene gestures?

   (2)   Whether the trial court properly denied [Williams’] request to
         draw a negative inference against the Commonwealth, based
         on the Commonwealth’s failure to preserve materially
         exculpatory evidence.

Brief of Appellant, at 5.

      Our standard of review regarding challenges to sufficiency of evidence

is well settled:

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        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. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016).

        Williams challenges each of his disorderly conduct convictions, 18

Pa.C.S.A. §§ 5503(a)(1), (2), and (3). Section 5503 provides in pertinent

part:

        (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; [or]

              (3) uses     obscene   language,   or   makes   an   obscene
              gesture[.]

18 Pa.C.S.A. § 5503(a)(1)-(3).




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      Disorderly conduct is determined by whether the defendant’s conduct

creates a “public unruliness which can or does lead to tumult and disorder.”

Commonwealth v. Hock, 728 A.2d 943, 946 (Pa. 1999) (quoting

Commonwealth v. Greene, 189 A.2d 141, 144 (Pa. 1963)). In particular,

we consider the actor’s tone of voice, capacity to alarm or frighten, and any

surrounding bystanders. See Hock, supra (holding defendant’s remark not

disorderly conduct because he used normal tone of voice, did not frighten

police officer, and there were no bystanders).

      This Court has held that a violation of section 5503(a)(1) may occur

where a person utters “fighting words.” See Commonwealth v. Reynolds,

835 A.2d 720, 730-31 (Pa. Super. 2003) (holding defendant’s fighting words

supported conviction for disorderly conduct under section 5503(a)(1)).

Fighting words are “[words] which by their very utterance inflict injury or tend

to incite an immediate breach of the peace.”              Commonwealth v.

Mastrangelo, 414 A.2d 54, 58 (Pa. 1980).           When determining whether

utterances amount to fighting words, we look to the circumstances

surrounding the event in order to judge whether the words had a tendency to

cause acts of violence. See Hock, 728 A.2d at 946.

      “Unreasonable noise” in section 5503(a)(2) is “determined solely by the

volume of the speech, not its content.” Commonwealth. Maerz, 879 A.2d

1267, 1269 (Pa. Super. 2005). We define unreasonable noise as noise which

is “not fitting or proper in respect to the conventional standards of organized

society or a legally constituted community.” Id.

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      Williams’ challenges to his disorderly conduct convictions under section

5503(a)(1) and (2) are without merit. The record reveals that Williams was

“standing outside the bus door, berating the female operator, screaming . . .

mother f---er.” N.T. Trial, 5/10/17, at 8-9. These profanities were so abrasive

that the bus operator felt the need to honk the horn to get the attention of

law enforcement. Further, Williams did not stop causing the disturbance once

confronted by Officer Maull; rather, the incident caused a hostile crowd to

form, requiring Officer Maull to request backup. Viewing the evidence in the

light most favorable to the Commonwealth, we conclude that this evidence is

more than sufficient to allow a factfinder to adjudge Williams guilty beyond a

reasonable doubt as to disorderly conduct under sections 5503(a)(1) and (2).

Hock, supra.

      There is, however, insufficient evidence to sustain Williams’ conviction

of disorderly conduct using obscene language, pursuant to section 5503(a)(3).

With regard to section 5503(a)(3), we characterize language as obscene if it

meets the three-part test set forth in Miller v. California, 413 U.S. 15, 24

(1973):

      (a) whether “the average person, applying contemporary
      community standards” would find that the work, taken as a whole,
      appeals to the prurient interest, (b) whether the work depicts or
      describes, in a patently offensive way, sexual conduct specifically
      defined by the applicable state law, and (c) whether the work,
      taken as a whole, lacks serious literary, artistic, political, or
      scientific value.




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See Commonwealth v. Kelly, 758 A.2d 1284, 1286 (Pa. Super. 2000); see

also Commonwealth v. Bryner, 652 A.2d 909, 912 (Pa. Super. 1995)

(“[W]e note that the Miller test has been adopted by our legislature in

defining what constitutes obscene materials[.]”).

      Even when viewing the evidence in the light most favorable to the

Commonwealth, Williams’ remarks of “mother f---er” and “shut the f--- up b-

---,” while abrasive, were not sexually explicit in nature. N.T. Trial, 5/10/17,

at 9; see Commonwealth v. Pennix, 176 A.3d 340, 346 (Pa. Super. 2017)

(holding appellant’s remarks of “F--- you police . . . I don’t got time for you f-

--ing police” were not sexually obscene under section 5503(a)(3)); see also

Kelly, 758 A.2d at 1288 (“Appellant’s use of the ‘F-word’ and use of the middle

finger were angry words and an angry gesture having nothing to do with

sex.”). We accordingly vacate Williams’ conviction of disorderly conduct under

section 5503(a)(3).

      Finally, Williams challenges the trial court’s denial of his request to draw

a   negative   inference    against   the   Commonwealth,       based    on   the

Commonwealth’s failure to preserve Officer Maull’s allegedly materially

exculpatory body camera footage.

      We review a challenge to a trial court's ruling regarding alleged

discovery violations under an abuse of discretion standard. Commonwealth

v. Robinson, 834 A.2d 1160 (Pa. Super. 2003). With respect to a defendant’s

access to evidence, our Supreme Court has observed:




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       [T]he Due Process Clause of the Fourteenth Amendment requires
       defendants be provided access to certain kinds of evidence prior
       to trial, so they may be afforded a meaningful opportunity to
       present a complete defense. This guarantee of access to evidence
       requires the prosecution to turn over, if requested, any evidence
       which is exculpatory and material to guilt or punishment, and to
       turn over exculpatory evidence which might raise a reasonable
       doubt about a defendant’s guilt, even if the defense fails to
       request it. If a defendant asserts a Brady[4] or Agurs[5] violation,
       he is not required to show bad faith.

       There is another category of constitutionally guaranteed access to
       evidence, which involves evidence that is not materially
       exculpatory, but is potentially useful, that is destroyed by the
       state before the defense has an opportunity to examine it. When
       the state fails to preserve evidence that is “potentially useful,”
       there is no federal due process violation unless a criminal
       defendant can show bad faith on the part of the police. Potentially
       useful evidence is that of which no more can be said than that it
       could have been subjected to tests, the results of which might
       have exonerated the defendant. In evaluating a claim that the
       Commonwealth’s failure to preserve evidence violated a
       criminal defendant’s federal due process rights, a court
       must first determine whether the missing evidence is
       materially exculpatory or potentially useful.

Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (internal

quotations and citations omitted) (emphasis added).

       A Brady violation is established where the defendant demonstrates “(1)

the evidence was suppressed by the Commonwealth, either willfully or

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4 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression
by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.”).

5United States v. Agurs, 427 U.S. 97, 112 (1976) (holding omitted evidence
must be viewed in context of entire record, and if omitted evidence creates
reasonable doubt that did not otherwise exist, constitutional error has been
committed).

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inadvertently; (2) the evidence was favorable to the defendant; and (3) the

evidence was material, in that its omission resulted in prejudice to the

defendant.” Commonwealth v. Antidormi, 84 A.3d 736, 747 (Pa. Super.

2014). “The mere possibility that an item of undisclosed information might

have helped the defense, or might have affected the outcome of the trial does

not establish materiality in the constitutional sense.” Id.

       Instantly, there are only two witnesses who testified at trial – Officer

Maull and Williams. Each witness offered drastically different accounts of the

events that transpired. Williams’ claim that the footage on the body camera

video is materially exculpatory is nothing more than a mere possibility that it

might have depicted events differently than the Commonwealth presented at

trial; it is equally likely that the recording would have corroborated Officer

Maull’s testimony. See Commonwealth v. Spotti, 94 A.3d 367, 383 (Pa.

Super 2014) (holding mere possibility that body camera footage, which was

routinely deleted after 30 days, “‘might have’ depicted events differently [did]

not establish ‘materiality’.”).      Thus, Williams has not established that the

evidence was materially exculpatory, and the claim does to rise to the level of

a Brady violation.

       Therefore, the recording was merely “potentially useful”6 evidence,

which requires Williams to show that the Commonwealth acted in bad faith by

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6See Commonwealth v. Synder, 963 A.2d 396, 408 (Pa. 2009), quoting
Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (holding evidence is



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failing to preserve it. Chamberlain, supra. Nothing in the record shows the

Commonwealth acted in bad faith by failing to preserve the body camera

footage. The district attorney noted at trial that SEPTA routinely deletes body

camera footage after thirty days. See N.T. Trial 5/10/17, at 5 (“unless there’s

a specific request to preserve [the footage], they usually don’t keep them for

longer than 30 days.”). Williams was arrested on August 25, 2016, and filed

a motion for compulsory disclosure on March 27, 2017. This is long after the

thirty-day body camera preservation period; therefore, there was no way for

the Commonwealth to provide the footage. Accordingly, the record shows no

evidence of bad faith. Thus, we conclude that the trial court did not abuse its

discretion in denying Williams’ request to draw a negative inference against

the Commonwealth regarding its failure to preserve the body camera footage.

Robinson, supra.

       Judgment of sentence for disorderly conduct under sections 5503(a)(1)

and (a)(2) affirmed.       Judgment of sentence for disorderly conduct under

section 5503(a)(3) vacated. Jurisdiction relinquished.7


____________________________________________


potentially useful where “no more could be said than that it could have been
subjected to tests, the results of which might have exonerated the
defendant.”).

7 Due to the fact that Williams’ sentences run concurrently, vacating his
section 5503(a)(3) count of disorderly conduct does not upset the trial court’s
overall sentencing scheme. We thus do not need to remand for resentencing.
See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (“[I]f
our decision does not alter the overall scheme, there is no need for a
remand.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/18




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