J-S28020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEPHEN T. KIRCHNER                        :
                                               :
                       Appellant               :   No. 1873 MDA 2018

        Appeal from the Judgment of Sentence Entered October 17, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-SA-0000289-2018


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 27, 2019

        Stephen Kirchner appeals from the judgment of sentence imposed

following his conviction for the summary offense of disorderly conduct.1

Kirchner argues that evidence he made a hand gesture, in the form of a gun,

was insufficient to prove that he created a hazardous or physically offensive

condition. He further contends that the evidence was insufficient to establish

the requisite mens rea, and the trial court should have dismissed the charge

on the ground that his conduct was de minimis. We affirm.

        On June 7, 2018, Kirchner was issued a citation for disorderly conduct

as a summary offense. He was found guilty in district court, and he appealed.




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*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 5503(a)(4).
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The trial court held a trial de novo. The relevant facts were largely undisputed,

and were as follows.

       Josh Klingseisen was mulching in his backyard when Kirchner and

Klingseisen’s neighbor, Elaine Natore, walked through an alley that runs

behind Klingseisen’s yard to Natore’s residence. Kirchner stopped, made eye

contact with Klingseisen, and then made a hand gesture at him imitating the

firing and recoiling of a gun.

       The incident was video-recorded by Klingseisen,2 who had previously

installed six security cameras at his home due to ongoing confrontations

between him and Natore. At the time of the incident, Natore had a “no contact”

order against Klingseisen. Klingseisen testified at trial that he felt “[e]xtremely

threatened” when Kirchner made the gun gesture at him. Trial Court Opinion,

filed January 7, 2019, at 2 (quoting N.T., 10/17/18, at 7).

       Klingseisen’s neighbor, Yvonne Rodriguez, saw the incident from her

front porch. Rodriguez testified she saw Kirchner turn towards Klingseisen and

“put his finger up like he was going to shoot him.” N.T. at 9. Rodriguez stated

she felt “[i]nsecure” after seeing the gesture, and called 911. Tr. Ct Op. at 2;

N.T. at 10.

       Kirchner testified in his own defense, and admitted that he made the

gesture. However, he said he did so after Klingseisen “gave [him] the finger



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2 The video recording was introduced as evidence at trial, but was not included
in the certified record.

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with both hands.” N.T. at 13, 16. The court found Kirchner guilty, and imposed

a $100 fine and court costs.

      Kirchner appealed, raising the following issue:

      Was the evidence in this case sufficient to sustain a conviction of
      the summary criminal offense of Disorderly Conduct; in particular,
      was the evidence sufficient to establish that making a hand
      gesture, albeit in the rough form of a gun, is a hazardous or
      physically offensive condition, and further that the defendant had
      the necessary mens rea of intent or recklessness to cause public,
      rather than just individual or private, inconvenience, annoyance,
      or alarm, or in the alternative, was the defendant’s conduct de
      minim[i]s?

Kirchner’s Br. at 4 (italics added). We will address the issue in three parts.

      A challenge to the sufficiency of the evidence requires us to determine

whether the evidence supports every element of the crime charged beyond a

reasonable doubt. Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa.Super.

2015). We do not assess the credibility of witnesses or the weight of the

evidence, both of which are within the sole purview of the finder of fact. Id.

As sufficiency of the evidence is a question of law, our standard of review is

de novo. Id. Our scope is limited to a review of the record evidence in the

light most favorable to the Commonwealth. Id.

              I. Hazardous or Physically Offensive Conduct

      Kirchner argues first that the evidence presented at trial was insufficient

to sustain a conviction for the summary offense of disorderly conduct, because

the evidence did not establish that making a hand gesture in the form of a

gun creates a hazardous or physically offensive condition. Kirchner argues that


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such a gesture is similar to actions that were found insufficient to support

disorderly conduct convictions in Commonwealth v. Mauz, 122 A.3d 1039

(Pa.Super. 2015), Forrey, 108 A.3d at 897, and Commonwealth v. Maerz,

879 A.2d 1267 (Pa.Super. 2005). Kirchner also argues his actions no more

support a conviction for disorderly conduct than any other hand gesture, as

his hand could never be mistaken for an actual firearm.

      Kirchner was convicted under 18 Pa.C.S.A § 5503(a)(4), 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, [the

person] . . . creates a hazardous or physically offensive condition by any act

which serves no legitimate purpose of the actor.” 18 Pa.C.S.A. § 5503(a)(4).

The statute defines “public” as “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.” Id. at § 5503(c). Disorderly conduct is a

summary offense unless “the intent of the actor is to cause substantial harm

or serious inconvenience, or if he persists in disorderly conduct after a

reasonable warning or request to desist,” in which case the offense is graded

as a third-degree misdemeanor. Id. at § 5503(b).

      The offense of disorderly conduct “is not intended as a catchall for every

act which annoys or disturbs people[.]” Maerz, 879 A.2d at 1269. Rather,

“[t]he dangers and risks against which the disorderly conduct statute are

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directed are the possibility of injuries resulting from public disorders.”

Commonwealth v. Williams, 574 A.2d 1161, 1164 (Pa.Super. 1990).

Specifically, a “hazardous condition” under subsection 5503(a)(4) “is a

condition involving danger or risk,” including a condition that creates the risk

of an altercation. Williams, 574 A.2d at 1164 (quoting Commonwealth v.

Roth, 531 A.2d 1133, 1137 (Pa.Super. 1987)).

      We conclude that there was sufficient evidence that Kirchner’s act of

mimicking his shooting Klingseisen created a hazardous condition as it risked

an altercation. Williams, 574 A.2d at 1164. Despite Natore’s no-contact order

against Klingseisen and the ongoing rift between them, Kirchner, while

accompanying Natore, approached Klingseisen in his own backyard, created a

gun-like hand gesture, pointed it at Klingseisen, and made a recoil motion as

if to suggest he had shot him. This act served no legitimate purpose, and

recklessly risked provoking a dangerous altercation.

      The cases Kirchner cites do not compel a different result. In Maerz and

Forrey, we determined that the remarks made by the defendants were

insufficient to support convictions under subsection 5503(a)(2), which applies

when a person “makes unreasonable noise.” See 18 Pa.C.S.A. § 5503(a)(2);

Forrey, 108 A.3d at 897-99; Maerz, 879 A.2d at 1269-71. They are thus

inapplicable to the instant analysis. In Mauz, the defendant made insulting

comments through his fence to his neighbor, such as calling her a “whore,”

before retreating into his home; no one else present could hear the remarks;

and the remarks could not have been heard beyond the two properties. See

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Mauz, 122 A.3d at 1040, 1042. We held that the evidence was insufficient for

a conviction under subsection 5503(a)(4) because the defendant’s remarks

did not create a risk of a hazardous condition by creating a risk of injury. Id.

at 1042-43.

      Here, in contrast, two other persons—Natore and Rodriguez—witnessed

Kirchner make his hand gesture to Klingseisen. In addition, given the history

of the parties involved, as evidenced by Natore’s no-contact order against

Klingseisen and the six cameras Klingseisen had in place, Kirchner’s act risked

an altercation or other public disturbance. We thus conclude the evidence was

sufficient for the conviction for disorderly conduct.

                                 II. Mens Rea

      Kirchner argues next that there was insufficient evidence that he

possessed the requisite mens rea to support his conviction for disorderly

conduct. Kirchner argues that because his conduct was directed at a lone

individual, he lacked intent to cause “public inconvenience, annoyance or

alarm,” as required by the statute. Kirchner cites Commonwealth v. Coon,

695 A.2d 794 (Pa.Super. 1997), in support.

      Kirchner’s argument is meritless. We have specified that a reckless

disregard of creating a risk of public inconvenience, annoyance, or alarm is

sufficient, “even if the [defendant’s] intent was to send a message to a certain

individual, rather than to cause public inconvenience, annoyance, or alarm.”

Maerz, 879 A.2d at 1269. Here, Kirchner acted with a reckless disregard of

creating a risk of public alarm, as evidenced by the fact that an eyewitness on

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a neighboring property contacted 911 because Kirchner’s actions caused her

to feel insecure.

       Coon offers Kirchner no relief. In Coon, the defendant was charged with

disorderly conduct as a third-degree misdemeanor under subsection 5503(b).

We concluded that a conviction under that subsection required proof that the

defendant “intended to cause substantial harm to the public or serious public

inconvenience by his actions,” and the evidence against the defendant did not

satisfy that standard. Coon, 695 A.2d at 798-99 (emphasis in original). Here,

however, Kirchner was convicted of disorderly conduct as a summary offense,

which requires the lesser mens rea of recklessness. Moreover, Coon was

abrogated by Commonwealth v. Fedorek, 946 A.2d 93 (Pa. 2008). In

Fedorek, the Pennsylvania Supreme Court held that for the offense to be

graded as a misdemeanor under subsection 5503(b), the Commonwealth need

only offer proof that the defendant acted with the intent “to cause substantial

harm or serious inconvenience,” as stated by the statute, not substantial

public harm or serious public inconvenience, as we had held in Coon. Id. at

101.

                          III. De Minimis Conduct

       Kirchner’s final argument is that the evidence was insufficient for

conviction because his conduct was de minimis. Kirchner cites Section 312 of

the Crimes Code, which states that the court shall dismiss the prosecution if

it finds the defendant’s conduct:




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       (1) was within a customary license or tolerance, neither expressly
       negatived by the person whose interest was infringed nor
       inconsistent with the purpose of the law defining the offense;

       (2) did not actually cause or threaten the harm or evil sought to
       be prevented by the law defining the offense or did so only to an
       extent too trivial to warrant the condemnation of conviction; or

       (3) presents such other extenuations that it cannot reasonably be
       regarded as envisaged by the General Assembly or other authority
       in forbidding the offense.

18 Pa.C.S.A. § 312(a). We review the refusal to dismiss under Section 312 for

abuse of discretion. Commonwealth v. Lutes, 793 A.2d 949, 963 (Pa.Super.

2002).3

       This issue is also meritless. “An offense alleged to be de minimis in

nature should not be dismissed where either harm to the victim or society in

fact occurs.” Id.; accord Commonwealth v. Toomer, 159 A.3d 956, 960

(Pa.Super. 2017). In other words, the court does not abuse its discretion in

refusing to dismiss the charges where the conduct of the offender actually

caused public alarm, annoyance, or inconvenience. Lutes, 793 A.2d at 963.

       Here, the trial court explained in its Pa.R.A.P. 1925(a) opinion that it did

not find the conduct at issue to be de minimis because it “did, in fact, cause

public alarm, annoyance or inconvenience.” Tr. Ct. Op. at 6. The court noted

that Klingseisen felt extremely threatened and Rodriguez felt insecure enough

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3 But see Commonwealth v. Raban, 31 A.3d 699, 702 (Pa.Super. 2011),
aff’d, 85 A.3d 467 (Pa. 2014) (treating question as sufficiency of the evidence
and employing de novo standard). The discrepancy among the cases
regarding the standard of review does not affect our disposition because we
would affirm the trial court’s refusal to dismiss under Section 312 under either
standard.

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following her observation of the incident that she called emergency services.

Id. The court concluded that Kirchner’s conduct “caused the very harm sought

to be prevented by the law defining the offense.” Id. We discern no abuse of

discretion in this analysis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2019




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