J-A12015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GLEN BENSON                              :
                                          :
                    Appellant             :   No. 3971 EDA 2017

          Appeal from the Judgment of Sentence October 24, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-SA-0001142-2015

BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

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

      Glen Benson appeals pro se from the judgment of sentence imposed

after he was convicted of the summary offense of disorderly conduct. We

affirm.

      The following summarizes the evidence offered at Appellant’s May 17,

2016 de novo trial in the common pleas court after he was convicted by the

magistrate. On August 21, 2015, Appellant purchased a loveseat slipcover

and curtain tiebacks at a K-Mart in Delaware County. As his rewards card was

not scanned to earn an additional discount, he sought to have the cashier re-

ring the transaction. A supervisor of cashiers, Natasha Moore, testified that

she advised Appellant that, because K-Mart was in liquidation and all sales

were thus final, the transaction could not be cancelled and Appellant would

instead have to call a toll-free number to obtain his rewards points. Ms. Moore

indicated that Appellant became angry, called her names and cursed at her,
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threatened to smack her, and approached her with his hand in a fist. The

police were called, but arrived after Appellant had left the store. Ms. Moore

did not file an incident report with K-Mart, and did not know whether anyone

else had filed one.

      Appellant, who at trial was represented by counsel, testified in his

defense, indicating that it was Ms. Moore, not he, who became irate, initially

screaming at the cashier when she requested the code from Ms. Moore to

change the transaction. When Appellant posited to Ms. Moore that the sale

could not be final because he had not yet signed to authorize the purchase,

she turned her wrath towards him. Appellant contended that Ms. Moore was

the aggressor, and verbally assaulted him until other K-Mart employees

intervened to remove Ms. Moore from the scene. Appellant stated that he

called K-Mart’s corporate number and made a complaint about Ms. Moore.

      Appellant also offered a character witness, Jennifer Stamm, who attends

the church at which Appellant is minister. Ms. Stamm testified that Appellant

has a reputation in the community as a peaceful, law-abiding, and loving

person. Two additional character witnesses who were present were not called

to testify in Appellant’s defense, as his counsel determined that their evidence

would be redundant.

      Upon this evidence, the trial court convicted Appellant of disorderly

conduct and sentenced him to pay a fine of $100. Appellant filed a motion for

reconsideration.      The trial court granted Appellant’s motion, vacated the


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judgment of sentence, and scheduled a reconsideration hearing for August 9,

2016. At the conclusion of the hearing, the trial court determined that no

relief was due, but did not impose a new sentence. Appellant’s appeal from

that determination was quashed by this Court, and, upon remand, the trial

court re-imposed the sentence of a fine of $100.

       Appellant filed a notice of appeal that was docketed on November 30,

2017. However, the docket also reflects that the trial court entered an order

three days prior, on November 27, 2017, requiring Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant filed his statement on December 22, 2017.

       As an initial matter, we consider whether we have jurisdiction over this

appeal, as Appellant’s notice of appeal was not filed within thirty days of the

imposition of his judgment of sentence on October 24, 2017. To have been

timely, Appellant’s notice of appeal had to have been filed by Monday,

November 27, 2017.1 Appellant’s notice was dated November 20, 2017, and

was received by the trial court no later than November 27, 2017, given the




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1 The thirtieth day fell on Thanksgiving, and the trial court was also closed the
following day. See 1 Pa.C.S. § 1908 (providing that the calculation of time
periods omits weekends and holidays when the last day of the period is a
weekend or holiday). Accordingly, the following Monday was the last day on
which Appellant could file a timely notice of appeal.



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issuance that day of the Rule 1925(b) order.       Based upon this record, we

decline to find that Appellant’s notice was untimely.2

       We next must determine whether Appellant complied with Pa.R.A.P.

1925(b). His statement was neither filed within twenty-one days of the court’s

order nor was it a concise statement of errors.      The trial court advocates

waiver based upon the latter defect, noting that Appellant did not, as the Rule

instructs, identify only the errors he intended to challenge on appeal, but

instead filed a six-page document more akin to an appellate brief. Trial Court

Opinion, 12/22/17, at 5. However, as the trial court was able to glean from

the statement the issues Appellant presents to this Court, and addressed

those issues in its opinion, we decline to find waiver on this basis.

       Waiver also does not attach to Appellant’s filing the statement on the

twenty-second day following the docketing of the trial court’s order directing

him to file one within twenty-one days. The docket does not reflect when the

order was served on Appellant, or even that it was served on him.         See

Pa.R.Crim.P. 114.       Accordingly, the order was not properly entered, and

waiver for failure       to comply with it may      not result.     See, e.g.,

Commonwealth v. Davis, 867 A.2d 585, 588 (Pa.Super. 2005) (en banc)

(holding no waiver for failure to file concise statement where the clerk of




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2Neither the trial court nor the Commonwealth contends that this appeal is
untimely.

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courts did not indicate that there even was service, let alone the date of

service as required by Pa.R.Crim.P. 114).

      We thus turn to the substance of Appellant’s appeal. Appellant’s brief

is not a model of clarity, and is not in strict compliance with our appellate

rules. However, we glean from his papers that he questions the evidentiary

support for his verdict and disputes a number of the trial judge’s evidentiary

rulings. Appellant’s brief at 7-18.

      We begin with Appellant’s sufficiency claim, for which our standard and

scope of review are de novo and plenary, respectively. Commonwealth v.

Williams, 176 A.3d 298, 305 (Pa.Super. 2017). A conviction is based upon

sufficient evidence if “the evidence admitted at trial and all reasonable

inferences drawn therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner, were sufficient to prove every element of

the offense beyond a reasonable doubt.” Id. at 305-06. The Commonwealth

may sustain its burden through wholly circumstantial evidence, and need not

preclude all possibility of innocence. Id. at 306. “It is within the province of

the fact-finder to determine the weight to be accorded to each witness’s

testimony and to believe all, part, or none of the evidence.” Id. “Moreover,

as an appellate court, we may not re-weigh the evidence and substitute our

judgment for that of the fact-finder.” Id.

      Appellant was convicted of disorderly conduct. “A person is guilty of

disorderly conduct if, with intent to cause public inconvenience, annoyance or


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alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or

threatening, or in violent or tumultuous behavior[.]” 18 Pa.C.S. § 5503(a)(1).

“[W]hether a defendant’s words or acts rise to the level of disorderly conduct

hinges upon whether they cause or unjustifiably risk a public disturbance. The

cardinal feature of the crime of disorderly conduct is public unruliness which

can or does lead to tumult and disorder.” Commonwealth v. Fedorek, 946

A.2d 93, 100 (Pa. 2008) (quoting Commonwealth v. Hock, 728 A.2d 943,

946 (Pa. 1999)) (emphasis omitted).

      The Commonwealth can establish the specific intent element of the

offense with “a showing of a reckless disregard of the risk of public

inconvenience, annoyance, or alarm, even if the appellant’s intent was to send

a message to a certain individual, rather than to cause public inconvenience,

annoyance, or alarm.”     Commonwealth v. Troy, 832 A.2d 1089, 1094

(Pa.Super. 2003) (internal quotations and citations omitted). Indeed, “when

an offender engages in fighting or threatening, or in violent or tumultuous

behavior in a public arena, even when that conduct is directed at only one

other person, the offender may be subject to conviction for disorderly

conduct.” Fedorek, supra at 100 (emphasis in original).

      Appellant’s   challenge   to    his   conviction   focuses   upon   the

Commonwealth’s failure to produce evidence to corroborate Ms. Moore’s

testimony and the trial court’s rejection of Appellant’s testimony, which




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described Ms. Moore as the aggressor.       Appellant’s brief at 16-17.   These

arguments have no support in the law or facts of this case.

      First, “the uncorroborated testimony of a single witness is sufficient to

sustain a conviction for a criminal offense, so long as that testimony can

address and, in fact, addresses, every element of the charged crime.”

Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa.Super. 2018).

Moreover, “the facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”         Commonwealth v.

DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001).

      In the instant case, Ms. Moore testified to the following. In the K-Mart

that was open to the public, Appellant called her names, cursed at her,

approached her threateningly with a balled-up fist, and screamed in her face.

N.T. Trial, 5/17/16, at 6. Appellant’s threatening caused “all the guys in the

store” to advance upon the scene “to protect [Ms. Moore] from him.” Id. at

7. This testimony alone is sufficient to sustain Appellant’s conviction. See

Fedorek, supra at 100-01 (collecting cases in which the evidence was

sufficient “where the underlying public acts involve, as in the instant case, the

private melodramas of two or three people that also cause or create the risk

of public disturbance”).

      It is axiomatic that “[t]he finder of fact . . . exclusively weighs the

evidence, assesses the credibility of witnesses, and may choose to believe all,

part, or none of the evidence.” Commonwealth v. Sanchez, 36 A.3d 24, 39


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(Pa. 2011). Here, the trial court did not believe Appellant, and believed Ms.

Moore. See N.T. Reconsideration, 8/9/16, at 9 (“[T]his case was really on

credibility and I believe the lady from K-Mart and that’s it.”). We may not re-

weigh the evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Chine, 40             A.3d 1239, 1242        (Pa.Super. 2012).

Accordingly, we shall not disturb Appellant’s conviction upon his credibility-

based arguments.

      We next consider Appellant’s evidentiary challenges, mindful of the

following.

      [T]he admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion that
      overrides or misapplies the law, or where the judgment exercised
      is manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.

Commonwealth v. Murphy, 182 A.3d 1002, 1004–05 (Pa.Super. 2018)

(quoting Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015)).

      Appellant takes issue with several of the trial court’s evidentiary rulings.

Appellant complains that his counsel was improperly restricted in his cross-

examination of Ms. Moore, that the Commonwealth committed discovery

violations, and that Appellant was erroneously precluded from introducing new

evidence at the post-trial reconsideration hearing. Appellant’s brief at 7-12,

16.




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      We first consider the issues concerning the cross-examination of Ms.

Moore. Appellant contends that the trial court should have allowed her to be

questioned about whether K-Mart had an incident report concerning the

episode in question, and about her motives for creating a false story and

fabricating her testimony. Appellant’s argument is based upon his version of

events: that Ms. Moore was in the wrong in verbally attacking Appellant, that

her co-workers had to physically remove her from the scene, and that as a

result, she was terminated from her position and needed to fabricate a “bogus

story” to qualify for unemployment benefits. Id. at 7.

      The trial court permitted counsel to cross-examine Ms. Moore as to her

personal knowledge of the existence of an incident report. See Pa.R.E. 602

(“A witness may testify to a matter only if evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the matter.”).

Ms. Moore testified, and the trial court found it credible, that she did not file

an incident report, and she did not know whether any such report was created

by someone else. N.T. Trial, 5/17/16, at 10, 11. Appellant’s contentions that

such a report must exist somewhere are based upon speculation. He does not

indicate that he made any attempt to ascertain what K-Mart’s policy is

concerning the creation of incident reports, let alone that he was prepared to

offer proof that the absence of a report supported a finding that the incident

did not happen as Ms. Moore detailed. As such, we find no abuse of discretion

in the trial court’s rulings regarding an incident report.


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     Similarly, Appellant’s arguments about the trial court’s failure to allow

him to question Ms. Moore about her motive to testify untruthfully finds no

support in the record.    The only indication that she faced discipline was

Appellant’s objected-to hearsay testimony that some unidentified person, with

whom he spoke during a telephone call to K-Mart’s corporate telephone

number, told Appellant that she would be disciplined. N.T. Trial, 5/17/16, at

18, 21.   Appellant never asked Ms. Moore if she was terminated from her

employment as a result of the incident. Hence, the trial court did not wrongly

interfere with Appellant’s cross-examination regarding motive as to any loss

of employment.

     Conversely, the record reveals that Appellant’s counsel did ask Ms.

Moore about a civil suit being a motive for her testimony without constraint

from the trial court. Questioning by Appellant’s counsel was as follows.

     Q     All right; and isn’t it a fact that you told the District Attorney
     at the last listing that you wanted to sue [Appellant], civilly sue –

                                      ***

            [Commonwealth]:          Objection, relevance.

            [Defense counsel]:       It is relevant because it shows
            motive, Your Honor.

            THE WITNESS:       Motive for what?

            THE COURT:         You’re not allowed to ask him questions.

            THE WITNESS:       Oh.

            THE COURT:       So [Defense counsel], so you can ask --
            you can -- you can answer the question.

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           THE WITNESS: No. I did not tell the District Attorney
           that. Why would I want to sue him?

                                          ***

     Q     Well isn’t it a fact that you want to sue [Appellant], civilly?

     A       No. I really -- I’m tired of seeing him, to tell you the truth.
     I don’t even understand why we’re back here. I don’t understand
     if all he got was a citation for Disorderly Conduct, why didn’t he
     just pay the fine and instead of me having to take off work to
     come – to continuously come to Court for a fine when he

                                    ***

           [Defense counsel]:        Your Honor -- Judge, I asked her
           one specific question.

           THE COURT:         And I think she answered it.

           [Defense counsel]:        Okay. That’s fine, Judge.

           THE COURT:       Do      you     have   any   other   questions,
           [Defense counsel]?

           [Defense counsel]:    I do not, Your Honor.           Oh, I have
           one more question, Your Honor, if I may?

           THE COURT:         Of course.

                                      ***

     Q     The supervisor who was above you, did he come and -- well
     it was a woman, I believe, is that correct?

                                      ***

           [Commonwealth]:           Objection, relevance.

           THE COURT:         Tell me where this is going, [Defense
           counsel]?




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              [Defense counsel]:    The question is going to as to
              whether or not she was taken back by the supervisor
              because she was acting rowdy?

              THE WITNESS: No. I wasn’t, because my supervisor was
              the one that called the police on him.

              [Defense counsel]:          I have no further questions, Your
              Honor.

Id. at 12-14.

       Upon this record, we conclude that the trial court’s evidentiary rulings

at trial do not warrant relief.3

       Appellant’s remaining issues concern the trial court’s rulings at the

August 9, 2016 reconsideration hearing. Appellant was proceeding pro se,

brought witnesses he sought to have testify, and indicated a desire to cross-

examine Ms. Moore again. The trial court clarified that the reconsideration

hearing was not a new trial, but rather an “opportunity to say what it was that

[Appellant] think[s] that [the trial court] missed when [it] made [its]

decision.” N.T. Reconsideration, 8/6/16, at 4. Appellant then complained that

the   Commonwealth         did   not   provide     discovery   materials,   particularly

information from witnesses who were not called at the trial. Id. at 5-6. The

trial court explained to Appellant that there is no right to pretrial discovery in



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3  Appellant at oral argument also contended that he was prohibited from
offering his own witnesses at trial. The record belies that assertion. As
indicated above, counsel presented Ms. Stamm as a character witness, then
indicated that he would forego calling the other two who were present because
“it would be redundant.” N.T. Trial, 5/17/16, at 27.

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a summary appeal matter. Id. at 6-8. The trial court advised Appellant that

he could challenge the trial court’s rulings in an appeal to this Court. Id. at

10, 11, 14.

      On appeal, Appellant contests the trial court’s refusal to allow his

character witnesses to testify at the reconsideration hearing, as well as the

trial court’s indication that the summary appeal process is “trial by ambush.”

Appellant’s brief at 16. No relief is due.

      Regarding the trial court’s refusal to allow Appellant’s character

witnesses to testify, we see nothing to indicate that these were new witnesses

other than the ones who were available, but not called by counsel, at

Appellant’s trial.   Nor did he point to any type of new evidence that was

discovered after his trial, that could not have been obtained earlier, and that

would likely result in a different verdict if a new trial were granted.

Accordingly, Appellant has not shown that the trial court erred in refusing to

award a new trial. See, e.g., Commonwealth v. Padillas, 997 A.2d 356,

363-64 (Pa.Super. 2010) (explaining the requirements for a new trial to be

awarded based upon after-discovered evidence).

      Nor has Appellant shown that a new trial was warranted due to a

discovery violation. Pretrial discovery is governed by Pa.R.Crim.P. 573, which

requires mandatory disclosures by the Commonwealth in “all court cases.”




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Pa.R.Crim.P. 573(B)(1).4 Summary cases are not “court cases” for purposes

of the discovery rule. See Pa.R.Crim.P. 573, Comment; Pa.R.Crim.P. 103.

Hence, Appellant had no rule-based right to any disclosures from the

Commonwealth unless they were mandated by Brady v. Maryland, 373 U.S.

83 (1963). Commonwealth v. Lutes, 793 A.2d 949, 960 (Pa.Super. 2002)

(“Since summary cases are not ‘court cases,’ pretrial discovery does not apply

to Appellants unless Brady or its progeny require otherwise.”).

             Brady and its progeny dictate that, when the failure of the
       prosecution to produce material evidence favorable to the accused
       raises a reasonable probability that the result of the trial would
       have been different if the evidence had been produced, due
       process has been violated and a new trial is warranted.

Commonwealth v. Blakeney, 108 A.3d 739, 772 (Pa. 2014).

       A defendant must prove a Brady claim to obtain relief.           Id.   It is

insufficient for a defendant to rely upon speculation as to the existence or

content of undisclosed witness reports.            Id. (“The argument that common

sense and logic prove the existence of wholly hypothetical reports is

unavailing[.]”).



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4 Rule 573 “implements the overall policy of the discovery rules aimed at
preventing ‘trial by ambush[.]’” Commonwealth v. Hanford, 937 A.2d
1094, 1100 (Pa.Super. 2007). Because the discovery rules do not apply to
summary proceedings, the trial court accurately informed Appellant that “in a
summary appeal, it’s a trial by ambush.” N.T. Reconsideration, 8/9/16, at 9.
While members of the bar are familiar with this terminology, Appellant
apparently is not, expressing astonishment “that a member of the bench in
any jurisdiction would make such a statement[.]” Appellant’s brief at 16.
Nonetheless, it is an accurate statement of the law in lay terms.

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      Here, Appellant has nothing beyond arguments appealing to logic to

establish that the Commonwealth had evidence that was favorable to him.

See, e.g., Appellant’s brief at 9 (“Does it not strain credulity that in a

circumstance as described by the complainant, that the police officer would

not have spoken to the ‘person in charge of the store’ or to one of the

managers or to at least another employee to corroborate the incident?”). As

such, Appellant has failed to prove a Brady violation.

      This Court is an error-correcting court. Commonwealth v. Wood, 833

A.2d 740, 748 (Pa.Super. 2003). Appellant has failed to establish that the

trial court committed any errors.      Therefore, as steadfastly as Appellant

argues that he is innocent of disorderly conduct, he is entitled to no relief from

this Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2018




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