J-S15031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN EMERY CYRAN                           :
                                               :
                       Appellant               :   No. 1459 WDA 2019

          Appeal from the Judgment of Sentence Entered May 22, 2019
       In the Court of Common Pleas of Potter County Criminal Division at
                        No(s): CP-53-CR-0000160-2017


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 3, 2020

        Appellant, John Emery Cyran, appeals from the judgment of sentence

entered in the Court of Common Pleas of Potter County after a jury found him

guilty of Disorderly Conduct (M3) and Summary Harassment. Receiving an

aggregate sentence of 9 to 12 months’ incarceration and a fine of $150.00,

Appellant raises three issues for our consideration. Specifically, he contends

his conviction for disorderly conduct was against the weight of the evidence,

he challenges the sentencing order to the extent it erroneously includes the

crime of misdemeanor Domestic Violence,1 and he claims the court abused its

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1  Agreeing that an apparent scrivener’s mistake caused the inclusion of the
Domestic Violence offense, both the trial court and the Commonwealth join
Appellant in his request that this Court remand for modification of the
sentencing order in this regard. As the record supports the trial court’s opinion
and the parties’ position on this issue, we remand the matter as requested.
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sentencing discretion when it imposed an aggravated range sentence for

Disorderly Conduct. Judgment of sentence is affirmed, but we remand to allow

modification of the sentencing order as indicated.

      The trial court sets forth the pertinent facts and procedural history as

follows:

      By way of history, the Commonwealth charged Appellant with 27
      counts of Possession of a Firearm Prohibited, 18 Pa.C.S.A. § 6105
      (a)(1), inter alia, after an investigation surrounding an altercation
      Appellant had with the purported victim John Howard. The 27
      counts were dismissed by the court on April 5, 2018, after a
      hearing on Appellant’s Omnibus Pre-Trial Motion. The court found
      that Appellant’s New York conviction for Tampering with a Witness
      was not an equivalent offense to Pennsylvania’s crime of
      Intimidation of a Witness, which would prohibit Appellant from
      owning firearms.           That matter was appealed by the
      Commonwealth to the Superior Court and the trial court was
      affirmed on February 1, 2019.

      Subsequently, the matter was scheduled for a jury trial on April
      15 and 16, 2019. Appellant faced the remaining charges of
      Terrorist Threats (M1), Simple Assault (M2), Recklessly
      Endangering (M2), Disorderly Conduct (M3), and Harassment (S).

      At trial, the victim, Josh Howard testified that from May of 2017
      through July of 2017, he was staying at his friend’s camp and was
      given the task of cleaning the camp and removing some items left
      there by Mr. Howard’s deceased uncle. N.T., 4/15/19 (Trial), at
      1.

      Mr. Howard testified that prior to the incident in question, Mr.
      Cyran [Appellant] had purchased a truck from Mr. Howard’s
      mother and refused to return her license plate. Mr. Howard took
      it upon himself to remove the plate from Appellant’s truck one
      week before July 4, 2017. This resulted in an argument between
      Appellant and Mr. Howard.

      Mr. Howard testified that on July 4, 2017, he was mowing the lawn
      at the camp near the end of the driveway and adjacent to the


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     township road where Appellant approached in his pickup truck.
     N.T. at 5. Mr. Howard moved to the edge of the road. N.T. at 5.
     Mr. Howard estimated the time to be approximately 3:00 p.m. to
     4:00 p.m. N.T. at 5, 6.

     According to Mr. Howard, Appellant pulled into the driveway and
     rolled down his truck window and pointed a firearm at Mr. Howard
     and advised Mr. Howard, “If [you] knew what was good for [you,
     you] would mind [your] own business and shut [your] mouth.”
     N.T. at 5. Mr. Howard testified that Appellant then drove up the
     driveway to the camp to pick up some items the owner of the
     camp had given to Appellant and upon his return down the
     driveway, he slowed his truck and again pointed the firearm at Mr.
     Howard advising Mr. Howard to “sleep with one eye open.” N.T.
     at 7.

     According to Mr. Howard, Appellant then left the property but later
     returned that evening as it was getting dark outside. Mr. Howard
     testified that this time when Appellant returned, his speech was
     slurred, and he was having difficulty holding the firearm which he
     again pointed at Mr. Howard. Mr. Howard advised Appellant that
     he was tired of being threatened and that if Appellant intended to
     do something to him then Appellant should do so. N.T. at 9.

     Mr. Howard testified that Appellant then came out of his vehicle
     with an aluminum baseball bat, stumbled and fell to the ground.
     [Mr. Howard] testified Appellant advised “he was going to teach
     me once and for all to keep my mouth shut.” N.T. at 10.
     Thereafter, Mr. Howard entered his own vehicle and drove to the
     cabin leaving Appellant at the end of the driveway. N.T. at 9-10.
     Thereafter, Mr. Howard contacted the police and the matter was
     investigated by Trooper Sebastian who interviewed Mr. Howard
     and Appellant and filed the charges against Appellant.

     Trooper Sebastian testified that he interviewed Appellant[, who]
     denied threatening Mr. Howard. Appellant did acknowledge that
     he keeps a baseball bat in each of his vehicles including the truck
     he was operating on the day in question. Appellant claims that
     the bat which had been in the truck he was using on July 4, 2017,
     was given to a friend a few days ago but was unwilling to disclose
     to Trooper Sebastian the man’s identity. N.T. at 35.

     The Defense called Jessie Outman who testified that he was
     working with Appellant until approximately 4:00 p.m. on July 4,

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      2017. N.T. at 56. Mr. Outman testified that he never observed
      Appellant in possession of a firearm that day. N.T. at 56. Further,
      Mr. Outman testified that he was on Mr. Cryan’s property on the
      day in question and did not see any firearms. N.T. at 57. After
      the testimony of Mr. Outman, the Commonwealth called Trooper
      Sebastian on rebuttal who testified that twenty-seven firearms
      were found on the property including one each in two vehicles of
      Appellant[‘s]. N.T. at 61. The Defense objected to that reference
      as it could [be] inferred that Appellant was tampering with
      evidence. N.T. at 85-86.

      After the jury deliberated, [it] reached a verdict and found
      Appellant not guilty of Terrorist Threats (M1), Simple Assault
      (M2), and Recklessly Endangering (M2), but guilty of Disorderly
      Conduct (M3). As to the summary offense of Harassment, the
      court found Appellant guilty.

      At the time of sentencing, the court [indicated it] carefully
      considered Appellant’s prior record score, the lack of remorse and
      accountability including his reference to the probation officer
      completing the Pre-Sentence Investigation that he was “Railroads
      again.” At sentencing, Appellant’s only remark was “It did not
      happen.” N.T., 5/15/19(Sentencing), at 6, 9-10.

      The court also considered the impact on the victim and the
      community [caused by] the brandishing of a firearm, pointing it
      at his victim and the threats and affirmative steps to use the bat
      to intimidate or strike Mr. Howard. The court also believed that
      the rehabilitative needs of Appellant justified the sentence
      imposed. N.T. at 9-10. [After the denial of Appellant’s post-trial
      motions, this timely appeal followed].

Trial court opinion, 8/21/19, at 1-5.

      Appellant raises the following issues for our consideration:

      1.   Did the trial court err by indicating on its sentencing order
      that [Appellant] was convicted of a misdemeanor crime of
      domestic violence?

      2.   Did the trial court abuse its discretion by denying
      [Appellant’s] post-sentence motion to set aside verdict and/or
      judgment of acquittal due to the fact the jury’s verdict was against
      the weight of the evidence?

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      3.    Did the trial court abuse its discretion by sentencing
      [Appellant] in the aggravated range of the sentencing guidelines
      without placing any, let alone sufficient, reasons on the record at
      the time of sentencing?

Appellant’s brief, at 2.

      Having resolved Appellant’s first issue in his favor, see footnote one, we

address his remaining two issues. In his second issue, Appellant argues the

trial court erred in denying his post-trial motion for a new trial because the

weight of the evidence showed his alleged interactions with the victim did not

constitute disorderly conduct as that crime is defined by the General

Assembly. We disagree.

      We do not review challenges to the weight of the evidence de novo on

appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).

Rather, we only review the court's exercise of its discretionary judgment

regarding the weight of the evidence presented at trial. See id. “[W]e may

only reverse the lower court's verdict if it is so contrary to the evidence as to

shock one's sense of justice.” Commonwealth v. Champney, 832 A.2d 403,

408 (Pa. 2003) (citations omitted). A verdict is said to be contrary to the

evidence such that it shocks one's sense of justice when “the figure of Justice

totters on her pedestal,” or when “the jury's verdict, at the time of its

rendition, causes the trial judge to lose his breath, temporarily, and causes

him to almost fall from the bench, then it is truly shocking to the judicial

conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super.

2004) (citations omitted).



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      Section 5503 of the Crimes Code, Disorderly Conduct, provides, in

relevant part:


      (a)   Offense defined.—A person is guilty of disorderly conduct
            if, with the 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.

      (b)   Grading.—An offense under this section is a misdemeanor
            of the third degree if the intent of the actor is to cause
            substantial harm or serious inconvenience, or if he persists
            in disorderly conduct after reasonable warning or request to
            desist. Otherwise disorderly conduct is a summary offense.


      (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.

18 Pa.C.S. § 5503

      By the victim’s own testimony, Appellant argues, the three interactions

between the two men took place in the driveway to a private camp, and not

in a public place as required by the statute. The Commonwealth agrees the

three interactions occurred on private property, but the undisputed evidence

at trial established that at least one interaction in particular occurred at the

end of the private driveway where it meets Butler Creek Road, which is a

township road. N.T. 4/15/19, at 5. Specifically, the victim testified Appellant

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came driving down the township road pointing a gun and yelling obscenities

before parking nearby, and then approaching him with a baseball bat. N.T. at

5-6. Because Appellant committed these acts either on, alongside, or very

close to the township road, the Commonwealth contends, he recklessly

created a risk of public inconvenience, annoyance, or alarm in contravention

of the statute.

      In   support   of   this   position,   the   Commonwealth    relies   on

Commonwealth v. O’Brien, 939 A.2d 912 (Pa.Super. 2007). In O’Brien,

the victim was driving near his home on a private road in Lake Ariel,

Pennsylvania, looking for his dog. The private road provided access to the

community's residents and their invitees.     O’Brien “approached the victim,

used profane language, reached through an open window in the victim's

vehicle, removed the victim's gloves from the dashboard and then used then

to slap the victim.” Id. at 913. O’Brien subsequently was issued citations for

harassment and disorderly conduct, for which he was subsequently found

guilty.

      On appeal, O’Brien challenged the sufficiency of the evidence supporting

his disorderly conduct conviction where, he claimed, his acts did not occur in

a public place or cause public inconvenience, annoyance or alarm and where

there was no evidence that he intended to cause or recklessly created a risk

thereof.   We disagreed, finding “ample evidence to sustain the conviction”

where the setting at issue, though nominally a private road, “‘clearly

constitutes a place to which the public or a substantial group,’ namely the

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surrounding community's residents and their invitees, have access.” Id. at

914 (internal quotations and citation omitted).

      Likewise, in the case sub judice, the victim testified that Appellant

engaged in threatening conduct, some of which included aiming a firearm at

the victim, while either on or adjacent to a township road to which the public-

at-large had open access. Accordingly, consistent with controlling precedent,

we discern nothing shocking with the trial court’s judgment that the weight of

the evidence supported the jury’s determination that the setting in question

was “public” for purposes of the disorderly conduct statute.

      In Appellant’s his final claim, he challenges the discretionary aspects of

his sentence. “It is well-settled that, with regard to the discretionary aspects

of sentencing, there is no automatic right to appeal.” Commonwealth v.

Mastromino, 2 A.3d 581, 585 (Pa. Super. 2010).          As such, an appellant

challenging the discretionary aspects of his sentence must invoke this Court's

jurisdiction by satisfying a four-part test:

      We conduct a four-part analysis to determine: (1) whether the
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      Pa.R.Crim.P. [720]; (3) whether the appellant's brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate under
      the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

      ***
      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists only when the appellant advances a colorable argument
      that the sentencing judge's actions were either: (1) inconsistent

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      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation

marks and some citations omitted).

      Here, Appellant filed a timely Notice of Appeal, presented his claim in a

post-trial motion for reconsideration of sentence, and included a Rule 2119(f)

Statement in his appellate brief. Moreover, Appellant’s assertion that the trial

court's imposition of an aggravated range sentence without stating sufficient

supporting reasons on the record raises a substantial question.               See

Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (concluding

a claim that “the lower court failed to state on the record adequate reasons

for imposing sentences in the aggravated range” raises a substantial

question). Accordingly, we will review Appellant’s claim on its merits.

      Our standard of review for challenges to discretionary aspects of

sentencing is well settled:

      [s]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias or
      ill will. It is more than just an error in judgment.

Commonwealth v. Downing, 990 A.2d 788, 792–93 (Pa. Super. 2010)

(citation omitted).

      Pursuant to Section 9721(b), “the court shall follow the general principle

that the sentence imposed should call for confinement that is consistent with

the protection of the public, the gravity of the offense as it relates to the



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impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as

part of the record, and disclose in open court at the time of sentencing, a

statement of the reason or reasons for the sentence imposed.” Id

      Nevertheless, “[a] sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statute in question....”   Commonwealth v. Crump, 995 A.2d 1280, 1283

(Pa.Super. 2010). Rather, the record as a whole must reflect the sentencing

court's consideration of the facts of the case and the defendant's character.

Id. “In particular, the court should refer to the defendant's prior criminal

record, his age, personal characteristics and his potential for rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002).

      Instantly, the record belies Appellant's contentions that the court failed

to consider and weigh relevant information regarding Appellant’s character,

mitigating factors, and rehabilitative needs. Specifically, the court indicated

it was struck by Appellant’s lack of remorse—reflected in Appellant’s

accusation that his probation officer was “railroad[ing] him again,” and his

truncated allocution in which he said only “It did not happen.”         Further

influencing the court’s selection of an aggravating guideline range sentence

was the impact on the victim effected by Appellant’s use of a firearm, which

represented an aggravating factor not contemplated within the elements of

the disorderly conduct charge. Finally, the court noted it considered that an




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aggravated range sentence would best serve Appellant’s rehabilitative needs.

N.T., 5/15/19, at 9-10.

      As we find the court’s reasons sufficient to support an aggravated

guideline range sentence, we accept the sentence imposed.         Accordingly,

Appellant is not entitled to relief on his discretionary aspects of sentencing

claim.

      Judgment of sentence affirmed.         Remand to allow modification of

sentencing order consistent with this decision. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2020




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