J. A02032/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
BRIAN PAUL SIMPSON,                        :         No. 324 WDA 2019
                                           :
                          Appellant        :


       Appeal from the Judgment of Sentence Entered January 30, 2019,
               in the Court of Common Pleas of Lawrence County
                Criminal Division at No. CP-37-SA-0000092-2018


BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 10, 2020

        Brian Paul Simpson appeals pro se from the January 30, 2019 judgment

of sentence of a $300 fine plus the costs of prosecution imposed after he was

found guilty in a trial de novo of disorderly conduct.1 After careful review,

we affirm the judgment of sentence.2

        The trial court summarized the relevant facts of this case as follows:

              On Thursday, April 5, 2018, Trooper Jerel T. Smith
              and Trooper Robert Cox were working the midnight to
              8[:00] A.M. shift out of the New Castle Barracks of the
              Pennsylvania State Police. The Pennsylvania State
              Police received a noise complaint about shooting at
              around 3:00 A.M. made by [appellant’s] neighbor,
              either John Argiro or his wife. The State Police
              dispatch contacted [appellant] and requested him to
              proceed to a nearby Dollar General so the responding

1   18 Pa.C.S.A. § 5503(a)(2).

2   The Commonwealth has not filed a brief in this matter.
J. A02032/20


           officers could speak to him safely. Trooper Smith was
           first dispatched to the house of John Argiro before
           meeting [appellant] at the Dollar General with
           Trooper Cox.

           Trooper Smith had been involved with a previous call
           in March of that year where he and another officer
           warned [appellant] to not shoot his firearm at that
           time of night or he would probably be cited. The same
           procedure of meeting at the Dollar General was used
           in the prior incident. [Appellant] was not charged
           based on this prior incident.

           Returning to the night of the charged behavior, at
           2:50 A.M., Troopers Smith and Cox arrived at Argiro’s
           residence, who was the complainant in the previous
           encounter between [appellant] and Trooper Smith.

           Argiro testified [appellant] would fire his gun in the
           general orientation towards his residence, not to shoot
           at the residence, but such that he could see the light
           from the muzzle flash. Argiro did not see a flash on
           the particular incident in question.

           Argiro also testified that [appellant] does not shoot
           during the daytime, only in the early morning.

           While it was clear Argiro and [appellant] were having
           a personal dispute and some of the Argiro testimony
           was disputed, this court credited these basic facts as
           credible.

           When contacted about the shooting on April 5, [2018]
           Trooper Smith indicated the reason [appellant] gave
           for shooting at that time was because he did not like
           some lights [that] shone into his bedroom and
           disturbed his sleep.

           This court credited Trooper Smith as credible.

Trial court opinion, 4/12/19 at 1-3 (citations to notes of testimony and

footnotes omitted).



                                    -2-
J. A02032/20


        Appellant was found guilty of disorderly conduct by the magisterial

district judge and appealed to the Court of Common Pleas of Lawrence County.

On January 29, 2019, appellant proceeded to a trial de novo and was found

guilty of one count of disorderly conduct in violation of Section 5503(a)(2).

The trial court found appellant not guilty of disorderly conduct under

Sections 5503(a)(1), (3), and (4). That same day, the trial court sentenced

appellant to pay a $300 fine plus the costs of prosecution. This timely pro se

appeal followed.3

        Appellant raises the following issues for our review:

              1.    Was it prejudicial to [appellant’s] rights for the
                    trial court to change an essential element of the
                    charge that appellant was convicted of at the
                    summary court, during the trial, when
                    [a]ppellant was neither charged with or
                    convicted of that charge, and the charge was
                    not indicated as such on the citation?

              2.    Was the evidence sufficient to prove that
                    [a]ppellant intentionally caused or recklessly
                    risked a public inconvenience, annoyance or
                    alarm by target shooting on his five acre
                    property in a rural neighborhood where target
                    shooting and hunting is common?

              3.    Was it an abuse of the trial court[’]s discretion
                    to not allow [a]ppellant to elicit testimony from
                    the witness when [the]witness opened the door
                    to this testimony and that his testimony was not
                    hearsay, but in fact circumstantial evidence that
                    he was aware of the North Beaver Township
                    Police determination that [a]ppellant was legally
                    in compliance with Pennsylvania law while


3   Appellant and the trial court have complied with Pa.R.A.P. 1925.


                                       -3-
J. A02032/20


                  target shooting on his private property, and was
                  that determination correct?

            4.    Did appellant[’]s use of his private target
                  shooting range after daylight hours violate
                  18 P[a.]C.S.A. [§] 5503(a)(2) when the [trial]
                  court said using it during day light [sic] hours
                  did not?

            5.    Does 34 P[a.]C.S.A. [§] 2507(b)(4) and 35 P.S.
                  [§] 4501 prevail over 18 P[a.]C.S.A.
                  [§] 5503(a)(2) in providing immunity from
                  prosecution for making noise from target
                  shooting while on one’s own private target
                  shooting range?

            6.    Was      18     P[a.]C.S.A.    [§]     5503(a)(2)
                  unconstitutional as applied to appellant[’]s use
                  of his target shooting range in after dark hours?

Appellant’s brief at 4-5.4

      We begin by addressing appellant’s claim that he is immune from

prosecution for disorderly conduct, based on the purported statutory defense

set forth in Section 2507(b)(4) of the Game and Wildlife Code, 34 Pa.C.S.A.

§ 101 et seq. (Id. at 38-52.) We disagree.

      Here, appellant was found guilty of one count of disorderly conduct in

violation of Section 5503(a)(2), which provides that “[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) (emphasis added). “Pennsylvania law




4 For the ease of discussion, we elect to address appellant’s claims in a
different order than presented in his appellate brief.


                                     -4-
J. A02032/20


defines unreasonable noise as not fitting or proper in respect to the

conventional standards of organized society or a          legally constituted

community.”    Commonwealth v. Forrey, 108 A.3d 895, 898 (Pa.Super.

2015) (citations and internal quotation marks omitted). Under this standard,

the Commonwealth must prove “that the noise here was unreasonable, i.e.,

inconsistent with neighborhood tolerance or standards.” Id. at 899 (citation

omitted).

     Section 2507(a) of the Game and Wildlife Code governs restrictions on

shooting and provides as follows:

            (a)   General rule.--It is unlawful for any person
                  during the open season for the taking of any big
                  game other than turkey to:

                  (1)   Shoot at any mark or target other
                        than legal game or wildlife with a
                        firearm of any kind or a bow and
                        arrow.

                  (2)   Discharge at any time any firearm
                        or release an arrow at random in the
                        general direction of any game or
                        wildlife not plainly visible for the
                        purpose of routing or frightening
                        them.

                  (3)   Discharge at any time any firearm
                        or release an arrow at random or in
                        any other manner contrary to this
                        section.

34 Pa.C.S.A. § 2507(a).




                                    -5-
J. A02032/20


      Section 2507(b), in turn, sets forth several exceptions to this general

prohibition against “target shooting” during open hunting season5 by allowing

target practice at an approved location.       Specifically, Section 2507(b)(4)

provides as follows:

            (b)    Exceptions.--This section shall not          be
                   construed to apply in any manner to:

            ....

                   (4)   Shooting at a properly constructed
                         target or mark or a dead tree
                         protected by a natural or artificial
                         barrier so that the ball, bullet or
                         arrow cannot travel more than
                         15 yards beyond the target aimed
                         at, after making due allowance for
                         deflection in any direction not to
                         exceed an angle of 45 degrees.
                         Target shooting shall only be lawful
                         when it is done:

                         (i)   Upon property owned by the
                               shooter or by a guest of the
                               property owner.

                         (ii) Within 200 yards of the
                              camp or other headquarters
                              where the person shooting is
                              quartered or is an invited
                              guest or visitor.

34 Pa.C.S.A. § 2507(b)(4).




5 “Open season” is defined in 34 Pa.C.S.A. § 102 as “the indicated periods of
the calendar year and the daily hours during which game or wildlife may be
legally hunted, taken or killed and includes both the first and the last day of
the season or period of time designated by this title or by regulation of the
commission.” Id.


                                       -6-
J. A02032/20


      Here, appellant’s reliance on Section 2507(b)(4) as a purported defense

to his disorderly conduct charge is misplaced because the exceptions set forth

in Section 2507(b) only apply to those offenses listed in Section 2507(a), and

not the disorderly conduct statute, which is essentially a noise control law.

See Forrey, 108 A.3d at 898-899; see also 34 Pa.C.S.A. § 2507(b)(4)

(noting exceptions to Section 2507(a)).       Appellant was not charged with

violating Section 2507(a), and accordingly, his claim is meritless.

      In a related claim, appellant contends that the trial court erred in failing

to interpret 35 P.S. § 4501 to provide him with “immunity from prosecution

for making noise from target shooting while on one’s own private target

shooting range.” (Appellant’s at 5, 53-57.) Again, we disagree.

            When addressing a question of statutory construction,
            our standard of review is de novo and the scope of
            our review is plenary. Commonwealth v. Barbaro,
            94 A.3d 389, 391 (Pa.Super. 2014) (citation omitted).
            Interpretation of a statute is guided by the polestar
            principles set forth in the Statutory Construction Act,
            1 Pa.C.S.[A.] § 1501 et seq., which has as its
            paramount tenet that the object of all interpretation
            and construction of statutes is to ascertain and
            effectuate the intention of the General Assembly.
            Commonwealth v. Hart, [28 A.3d 898, 908 (Pa.
            2011)] (quoting 1 Pa.C.S.[A.] § 1921(a)).

Commonwealth v. Markun, 185 A.3d 1026, 1029 (Pa.Super. 2018) (internal

quotation marks and brackets omitted; citation formatting amended).

      Section 4501 of Title 35, Health and Safety, governs the general

immunity provided to owners of shooting ranges from any civil or criminal

action based on noise or noise pollution, and provides as follows:


                                      -7-
J. A02032/20


            All owners of rifle, pistol, silhouette, skeet, trap,
            blackpowder or other ranges in this Commonwealth
            shall be exempt and immune from any civil action or
            criminal prosecution in any matter relating to noise or
            noise pollution resulting from the normal and accepted
            shooting activity on ranges, provided that the owners
            of the ranges are in compliance with any applicable
            noise control laws or ordinances extant at the time
            construction of the range was initiated. If there were
            no noise control laws or ordinances extant at the time
            construction of the range was initiated, then the
            immunity granted by this act shall apply to said
            ranges.

35 P.S. § 4501.

      The crux of appellant’s claim on appeal is premised on his belief that his

private property qualifies as a shooting range under Section 4501. Although

the term “shooting range” is not defined in the statute, our review of the

record supports the trial court’s determination that “[appellant’s] informal

activity of target shooting on his property does not make him an owner of a

range for the purposes of Section 4501.” (Trial court opinion, 4/12/19 at 13.)

As the trial court properly recognized in its opinion, such a finding

            would lead to a near infinite variety of absurd results
            if all shooting on one’s own property was to be
            immunized from noise control. . . . [T]he extreme
            informality of [appellant’s] specific shooting activity
            makes it difficult for this court to characterize him as
            an ‘owner of a range’ even wh[en] that phrase is taken
            in a very broad sense.

Id.

      In any event, even if this court were to construe appellant’s property as

a shooting range for purposes of Section 4501, the immunity provided for in



                                      -8-
J. A02032/20


this section applies only to “the normal and accepted shooting activity on

ranges[.]” 35 P.S. § 4501. Appellant’s act of repeatedly shooting his firearm

in the pitch black at approximately 3:00 a.m. on a weeknight in an area with

neighboring residential properties with children can hardly be considered a

“normal and accepted shooting activity” in any community, rural as it may be.

(See notes of testimony, 1/29/19 at 5-11, 28; see also 35 P.S. § 4501.) The

interpretation of Section 4501 urged by appellant is clearly unreasonable. If

that interpretation were followed, it would favor the private interest of the

owner of such a shooting range over the interests of all adjoining landowners.

Accordingly, appellant’s purported defense under Section 4501 must fail.

      Appellant also argues that the citation charging him with disorderly

conduct violated his due process rights (see appellant’s brief at 11-21); that

there was insufficient evidence that he possessed the requisite mens rea to

recklessly create a risk of public inconvenience, annoyance, or alarm sufficient

to sustain his conviction under Section 5503(a)(2) (see appellant’s brief at

22-30); and that the Commonwealth failed to prove: (a) he created a public

harm or inconvenience because he was on his private property at the time the

shooting occurred (see id. at 31-34), and/or (b) the noise he created was

inconsistent with the standards of the neighborhood (see id. at 35-37).

      Our review reveals that the trial court authored a comprehensive and

well-reasoned opinion that thoroughly addresses and disposes of appellant’s

remaining claims. Accordingly, we adopt the pertinent portions of the trial



                                     -9-
J. A02032/20


court’s April 12, 2019 opinion as our own for purposes of this appellate review

of these claims. (See trial court opinion, 4/12/19 at 3-6, 9-11.)

      For all the foregoing reasons, we affirm the trial court’s January 30,

2019 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2020




                                    - 10 -
