J-A09037-15


                                  2015 PA Super 191

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

GARY ALAN MAUZ

                            Appellant                          No. 2068 EDA 2014


             Appeal from the Judgment of Sentence June 20, 2014
                In the Court of Common Pleas of Bucks County
               Criminal Division at No: CP-09-SA-0000956-2013


BEFORE: BOWES, DONOHUE, and STABILE, JJ.

OPINION BY STABILE, J.:                                 FILED SEPTEMBER 09, 2015

       Appellant, Gary Alan Mauz, appeals from the trial court’s June 20,

2014 judgment of sentence imposing a $50 fine and court costs.                       After

careful review, we vacate the judgment of sentence.

       Police cited Appellant on April 25, 2013 for disorderly conduct (using

obscene     language     and    creating       a   hazardous   or   physically   offensive

condition1) based on an encounter between Appellant and his neighbor,

Victoria Battistini (“Battistini”) the previous day. The trial court summarized

the pertinent facts:

            At the de novo trial, [Battistini], testified that on April 24,
       2013, at approximately 10:00 p.m., she was present at her
       home located at 882 Euclid Avenue, Warrington, Bucks County.
____________________________________________


1
    18 Pa.C.S.A. § 5503(a)(3) and (4).
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      At that time, she was setting up a fire in a fire pit in her
      backyard with her boyfriend and his two brothers. She noticed
      noises on the outside of the fence surrounding her residence
      and, as a result, she walked over to investigate. She relayed
      that her neighbor, [Appellant], was walking over towards his
      residence uttering words that were initially unclear.     She
      recalled:

                   I couldn’t really understand what exactly he
            was saying, but I know that it was some language …
            calling me like a whore and stuff. And I kind of–I
            didn’t really know what was going on, and I went to
            … walk over. By the time I got over to the fence, I
            had saw [sic] the figure walking up to the house that
            was my neighbors that live diagonal.          Then I
            recognized who it was…

      Because of lights on her back porch and a light post by
      [Appellant’s] front door, she was able to clearly view [Appellant]
      initially walking towards his residence, then standing at the front
      door of his residence over her fence, which was diagonal from
      her own residence. [Appellant] repeatedly directed statements
      toward [Battistini] such as [Battistini’s] “fat mom humps [her]
      dog” and “whore.” Furthermore, she stated that the statements
      made her feel “uncomfortable and scared” and this was
      exacerbated by the fact that her mother was on vacation and
      she was home alone.

Trial Court Opinion, 9/20/14, at 2-3 (record citations omitted).

      Appellant   pled guilty   to   disorderly   conduct   under   § 5503(a)(3)

(obscene language or gesture) before a Magisterial District Judge on October

29, 2013. Appellant filed a timely summary appeal on November 26, 2013,

and the trial court conducted a de novo trial on June 20, 2014.         The trial

court, sitting as finder of fact, found Appellant guilty under § 5503(a)(4)

(hazardous or physically offensive condition) as a summary offense, and

imposed sentence as set forth above. This timely appeal followed.



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      Appellant argues the Commonwealth produced insufficient evidence to

sustain a conviction under § 5503(a)(4).     The following standard governs

our review of a challenge to the sufficiency of the evidence:

            As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. 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. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013).

      Section 5503 reads:

      § 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.

                                     […]

            (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.

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J-A09037-15


18 Pa.C.S.A. § 5503(a)(4), (c).

      “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.”

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

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

a specific purpose; it has a definite objective, it is intended to preserve the

public peace.” Id. (emphasis added). Indeed, our courts have repeatedly

emphasized     that   the   goal   of   § 5503   is   to   protect   the   public.

Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (“Certainly,

Section 5503 is aimed at protecting the public from certain enumerated

acts.”); Hock, 728 A.2d at 946 (“The cardinal feature of the crime of

disorderly conduct is public unruliness which can or does lead to tumult and

disorder.”).

      In Commonwealth v. Forrey, 108 A.3d 895 (Pa. Super. 2015), for

example, the defendant cussed at police officers while no one else was

present. Id. at 897. The record reflected only that one officer could hear

the defendant’s remarks from ten feet away. Id. Therefore, the defendant

could not have created unreasonable noise (per § 5503(a)(2)) because no

member of the public was present to hear it.          Id. at 899.    Likewise, in

Maerz, the defendant yelled obscenities across the street at a neighbor she

believed was shining a flashlight into her home. Maerz, 879 A.2d at 1268.


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J-A09037-15


We concluded the defendant’s action did not jeopardize “the public peace.”

Id. at 1271. “[The defendant’s] single outburst was brief, was only as loud

as a person of her presumably ordinary physical abilities can shout, occurred

in the evening prior to ordinary sleeping hours, and prompted neither civil

unrest nor a single neighbor to seek police intervention.”      Id.   In making

statements that were “briefly irritating”, the defendant did not commit

disorderly conduct. Id.

      On the other hand, in Commonwealth v. Roth, 531 A.2d 1133 (Pa.

Super. 1987), appeal denied, 541 A.2d 1137 (Pa. 1988), this Court held that

the defendants, in threating to enter a church during a worship service and

dump scrap iron on an altar, acted with intent to cause public annoyance,

inconvenience, or alarm. Id. at 1136-37. “The occurrences of that day were

steeped in an emotionally charged atmosphere. … Those who attended were

frightened for their safety as well as for the welfare of the young and elderly

members present.” Id. at 1137.

      Concerning § 5503(a)(4), a “’hazardous condition’ is a condition that

involves danger or risk.”    Commonwealth v. Williams, 574 A.2d 1161,

1164 (Pa. Super. 1990).        “The dangers and risks against which the

disorderly conduct statute are directed are the possibility of injuries resulting

from public disorders.” Id. In Williams, this Court held the defendant did

not create a hazardous condition by walking silently through a parking lot in

his underwear. Id. “His conduct was neither boisterous nor confrontational.


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J-A09037-15


He did not threaten any residents of the apartment house.”                Id.   The

defendant committed only a “minor act of vandalism” on a car in the parking

lot. Id.

      In contrast, the defendants in Roth created a hazardous condition

because altercations could have occurred.             Roth, 531 A.2d at 1137.    A

physically    offensive   condition,   within   the    meaning   of   § 5503(a)(4),

“encompasses direct assaults on the physical senses of members of the

public.”     Williams, 574 A.2d at 1164.        “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.”         Id.   Likewise, a

physically offensive condition can occur where the defendant invades the

physical privacy of the victim. Id. (citing Commonwealth v. Young, 535

A.2d 1141 (Pa. Super. 1988) (holding that two male defendants created a

physically offensive condition by entering a bathroom stall and confronting a

woman sitting on a toilet), appeal denied, 544 A.2d 961 (Pa. 1988)). The

Williams Court concluded the defendant did not create a physically

offensive condition even though one person observed him walking through

the parking lot in his underwear. Id. at 1165.

      Our review of the instant record reveals the following. Appellant was

in his yard when he shouted the obscene remarks to Battistini, who was in

her yard at the time with her boyfriend and several other people. N.T. Trial,

6/20/14, at 13-16, 21.       A five or six foot high fence separated the two


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J-A09037-15


properties. Id. at 14. The record does not reflect that anyone other than

Battistini heard Appellant’s remarks,2 nor does the record reflect that

Appellant’s remarks could have reached anyone not present in the yard of

Battistini or Appellant.

       Since the both the speaker and recipient of the offensive remarks were

present in respective private yards, we believe the evidence is insufficient to

establish that Appellant acted with the intent to cause public annoyance,

inconvenience or alarm.          Cf. Young, 535 A.2d at 1142-43 (holding a

dormitory restroom that served fifty female students and their guests was a

public place despite the presence of only the perpetrators and the victim at

the time of the offense). We cannot conclude Appellant acted with the intent

to create public annoyance when he made his offensive remarks in a private

setting and the remarks apparently were discernible only to Battistini.

       Furthermore, we do not believe Appellant recklessly created a risk of a

hazardous or physically offensive condition under § 5503(a)(4). Appellant’s

conduct created no risk of “injuries resulting from public disorders.”

Williams, 574 A.2d at 1164. Here, Appellant made a few brief, offensive

remarks to Battistini and then retreated into his home.        The two were

separated by a fence, and the record fails to reflect that anyone else heard


____________________________________________


2
  The Commonwealth’s only witnesses were Battistini and the investigating
police officer.



                                           -7-
J-A09037-15


Appellant’s statements. The encounter ended only seconds after it began.

N.T. Trial, 6/20/14, at 24-26.

      We also do not believe Appellant’s conduct created a physically

offensive condition, as Appellant did not engage in a direct assault on

Battistini’s physical senses, as described in Williams. Williams, 574 A.2d

at 1164. The Williams Court described offensive odors or blinding light as

examples of physically hazardous conditions. Appellant also did not invade

Battistini’s physical privacy, as the encounter occurred when she was

present in her yard and visible to Appellant from his own yard.

      Here, Appellant’s conduct implicates only Battistini’s sense of sound.

We therefore turn to Maerz and Forrey for persuasive authority, as those

cases were decided under § 5503(a)(2) (“unreasonable noise”).             18

Pa.C.S.A. § 5503(a)(2). In Maerz, the defendant shouted across the street

at her neighbor: “you goddamn motherfucking son of a bitch, what the hell

are you doing, get that light off my house[.]” Maerz, 879 A.2d at 1268. As

noted above, the Maerz Court found the evidence insufficient because,

among other things, the outburst was brief and did not cause a disturbance

or “upset the public peace.”     Id. at 1271.     In Forrey, the defendant

shouted: “all you fucking cops are communists just like Obama,” and “this

fucking country sucks,” and “you better watch your back.”         Forrey, 108

A.3d at 897.   The Commonwealth failed to prove the defendant created a

level of noise inconsistent with neighborhood standards, especially since the


                                    -8-
J-A09037-15


defendant uttered the remarks in a remote location. Id. at 898. Similarly,

in the instant case, Appellant’s remarks were brief and did not cause public

unrest or create a risk thereof. We therefore conclude the record does not

contain sufficient evidence to support a finding that Appellant created a

physically offensive condition.3

       For all of the foregoing reasons, we conclude the record, read in a light

most favorable to the Commonwealth, does not contain sufficient evidence

to support Appellant’s conviction under § 5503(a)(4).4 We therefore vacate

the judgment of sentence.

       Judgment of sentence vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




____________________________________________


3
   In reaching this decision, we certainly do not condone Appellant’s
behavior. We find Appellant’s comments reprehensible but not criminal.
4
   Appellant argues the trial court erred in permitting the Commonwealth to
proceed under § 5503(a)(4), rather than § 5503(a)(3), to which Appellant
pled guilty at the summary hearing. Given our disposition, we need not
address this argument.



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