J-A22026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KELLY SANDERS

                            Appellant                No. 2150 MDA 2014


           Appeal from the Judgment of Sentence December 3, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-SA-0000264-2014


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 28, 2015

        Appellant Kelly Sanders appeals from the December 3, 2014 judgment

of sentence1 entered in the Lancaster County Court of Common Pleas,

following her bench trial conviction for disorderly conduct.2 We affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The court’s sentencing order is not included in the certified record. In her
notice of appeal, Appellant refers to the docket, which reflects the court’s
December 3, 2014 order. In her brief, Appellant quotes the following from
the order, but does not provide a copy:

           …find her guilty of the offense of Disorderly Conduct
           beyond a reasonable doubt, imposing a fine of $300 plus
           costs.

Appellant’s Brief at 2.
2
    18 Pa.C.S.§ 5503(a)(2).
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       On May 26, 2014,3 Lancaster City police officers responded to a call for

a domestic disturbance from an apartment on 139 College Avenue. Officer

William Hamby could hear a woman yelling when he exited his police car.

He and Officer Jay Hatfield approached the apartment from which the yelling

and the sound of glass breaking was emanating.

       When the officers knocked on the door, the yelling stopped.         The

officers looked through the window and found the apartment to be

“destroyed” with a broken table, chairs, guitar and shattered glass. Police

continued to knock on the door, and Appellant eventually emerged from the

bathroom. Officers told her to come to the window, but she refused. She

told them they were at the wrong apartment. She began to walk away from

the officers, and Officer Hatfield tased her.    She fell to the ground.   The

police officers entered the apartment, placed Appellant in handcuffs, and

brought her outside to be checked by Emergency Medical Services (“EMS”)

personnel, pursuant to police policy. Appellant was wearing only a long t-

shirt and underwear, and her less than two-year-old child was asleep in the

apartment at this time. While EMS was evaluating Appellant, police officers

called Children and Youth Services (“CYS”) to attend to the child.



____________________________________________


3
  The trial court 1925(a) Opinion mistakenly lists the date of the offense as
March 26, 2014. The docket and notes of testimony, however, reflect
otherwise.



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     Appellant began screaming at the EMS employees.         Officers issued

approximately six warnings to Appellant to lower her voice, but she

continued to scream and tell EMS personnel that she did not want them to

examine or evaluate her. She screamed obscenities at them, and neighbors

came outside to see the commotion. Officer Hatfield thought Appellant was

drunk because she had glassy eyes and smelled of alcohol. Appellant said

that she had consumed only one drink around 5:00 p.m. Eventually, EMS

gave up on examining Appellant and left. Appellant was issued a citation for

disorderly conduct.

     The court conducted a hearing on December 3, 2014, at which Officer

Hatfield, Officer Hamby, and Appellant testified. Appellant claimed she was

only protesting to EMS personnel touching her against her will.         She

submitted that any mother would have objected when removed from her

sleeping child. She contended that she was sleeping when officers arrived

and that there had been no yelling in the apartment.       She claimed the

apartment was messy because she and her boyfriend were in the process of

moving, but she denied anything being broken. The court found the officers’

testimony credible, and discredited Appellant’s testimony.         The court

convicted Appellant of disorderly conduct and fined her $300.00.

     On December 18, 2014, Appellant timely filed a notice of appeal. The

next day, the court ordered her to file a concise statement of errors




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complained of on appeal pursuant to Pa.R.A.P. 1925(b), and she timely

complied on January 5, 2015.

      Appellant raises the following issues for our review:

         DID [APPELLANT’S] ACTIONS IN PROTESTING LOUDLY
         ABOUT BEING EXAMINED BY EMS PERSONNEL AGAINST
         HER WISHES CONSTITUTE UNREASONABLE NOISE UNDER
         THE CIRCUMSTANCES?

         DID THE COMMONWEALTH [PRESENT] SUFFICIENT
         EVIDENCE THAT [APPELLANT’S] YELLING PRODUCED THE
         LEVEL OF NOISE THAT WAS INCONSISTENT WITH
         NEIGHBORHOOD TOLERANCE OR STANDARDS?

         WERE   [APPELLANT’S] ACTIONS   AND    WORDS IN
         PROTESTING THE POLICE ACTIONS AGAINST HER
         PROTECTED UNDER HER RIGHT TO FREE SPEECH?

Appellant’s Brief at 4.

      We shall address Appellant’s first two issues together.      Appellant

challenges the sufficiency of the evidence for her disorderly conduct

conviction. She claims that she did not yell to cause public inconvenience or

recklessly create a risk of it. She claims that she yelled for the legitimate

purpose of telling the EMS personnel that she did not want treatment and

she did not want them to offensively touch her.       She argues that it was

reasonable to yell considering that she had been tased for no reason, while

unarmed in her apartment and having just woken up, and that she was now

in a parking lot, wearing only a t-shirt and underwear, while her baby was

alone in the apartment. She concludes that her protests did not constitute

an unreasonable noise under the circumstances, and the Commonwealth

failed to produce sufficient evidence that her yelling was inconsistent with

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the neighborhood tolerance or standards to support her conviction for

disorderly conduct. We disagree.

     “Whether sufficient evidence exists to support the verdict is a question

of law; thus, [an appellate court’s] standard of review is de novo and [its]

scope of review is plenary.” Commonwealth v. Patterson, 91 A.3d 55, 66

(Pa.2014) cert. denied sub nom. Patterson v. Pennsylvania, 135 S. Ct.

1400 (2015).   When examining a challenge to the sufficiency of evidence,

we employ the following standard:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at
        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt. In
        applying [the above] test, we may not weigh the evidence
        and substitute our judgment for the fact-finder. In
        addition, we note that the facts and circumstances
        established by the Commonwealth need not preclude every
        possibility of innocence.        Any doubts regarding a
        defendant’s guilt may be resolved by the fact-finder unless
        the evidence is so weak and inconclusive that as a matter
        of law no probability of fact may be drawn from the
        combined circumstances. The Commonwealth may sustain
        its burden of proving every element of the crime beyond a
        reasonable doubt by means of wholly circumstantial
        evidence. Moreover, in applying the above test, the entire
        record must be evaluated and all evidence actually
        received must be considered. Finally, the [trier] of fact
        while passing upon the credibility of witnesses and the
        weight of the evidence produced, is free to believe all, part
        or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).


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     Disorderly conduct is defined by statute:

        § 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:

                                  *      *   *

           (2) makes unreasonable noise

                                  *      *   *

18 Pa.C.S. § 5503.

     Further, this Court has observed:

        “The mens rea requirement of Section 5503 demands
        proof that appellant by her actions intentionally or
        recklessly created a risk [of causing] or caused a public
        inconvenience, annoyance or alarm.” Commonwealth v.
        Gilbert, 4674 A.2d 284 ([Pa.Super.]1996). The specific
        intent requirement of this statute “may be met by 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. See Commonwealth v. Kidd, 442
        A.2d 826 ([Pa.Super.]1982).

        In disorderly cases based on one’s making unreasonable
        noise, this Court has looked to language content only to
        infer whether the speaker intended to cause public
        annoyance, alarm, etc.        Ultimately, however, what
        constitutes the actus reus of “unreasonable noise” under
        the disorderly conduct statute is determined solely by the
        volume of the speech, not by its content.

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

     “Pennsylvania law defines unreasonable noise as ‘not fitting or proper

in respect to the conventional standards of organized society or a legally



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constituted community.’”   Commonwealth v. Forrey, 108 A.3d 895, 898

(Pa.Super.2015) (quoting Commonwealth v. Gilbert, 674 A.2d 284, 287

(Pa.Super.1996)).   This Court examined the unreasonable noise necessary

to constitute disorderly conduct in Forrey, supra:

        [A] defendant’s single, profane outburst yelled at a
        neighbor across the street at 9:45 p.m. was deemed
        insufficient unreasonable noise to constitute disorderly
        conduct. [Commonwealth v. Maerz, 879 A.2d 1267,
        1270 (Pa.Super.2005)]. The Commonwealth failed to show
        that the outburst jeopardized the public peace, or that the
        noise was “absolutely inconsistent with the residential
        neighborhood’s tolerance levels or standards. No
        evidence was offered as to why the public peace in this
        particular neighborhood could not survive a passing, albeit
        very loud, vocal noise during evening hours.” Id. at 1271
        (emphasis added).

        Similarly, in [Commonwealth v. Gilbert, 674 A.2d 284
        (Pa.Super.1996)], we found insufficient evidence of
        unreasonable noise where the defendant “openly
        disagreed” with a police officer who was towing his
        neighbor’s car. Gilbert, 674 A.2d at 285–86. At best, the
        record reflected that the defendant spoke to the officer and
        yelled across the street to his neighbor. Id. at 287. “The
        arresting officer testified that half the neighbors eventually
        came out to the street to view the ‘ruckus.’ However, no
        evidence was produced that that the level of noise was
        inconsistent      with     neighborhood        tolerance   or
        standards.” Id. (emphasis added).

        In contrast, in Commonwealth v. Alpha Epsilon Pi, 540
        A.2d 580, 583 ([Pa.Super.]1988), we affirmed a disorderly
        conduct citation of a college fraternity where noise from its
        late-night partying could be heard fifty yards away from
        the fraternity house.

           Given the time of day, the officer’s ability to hear the
           noise from a distance of fifty yards during a warm,
           summer night, and the initial complaint to the officer
           which was made by a resident living at least one


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           block away, we cannot say that the trier of fact could
           not have found the noise to have been unreasonable.

        Id.

Forrey, 108 A.3d at 898-99.

     Here, the Commonwealth presented sufficient evidence to support

Appellant’s disorderly conduct conviction.   Specifically, two police officers

testified that they responded to a call from neighbors for a domestic

disturbance.   Upon arriving at the scene, police officers could hear yelling

and breaking glass from their police vehicles.     After Appellant had been

tased and brought to the parking lot for evaluation by EMS personnel,

Appellant began to scream obscenities. Several neighbors came out of their

homes to watch Appellant yell. Although there was testimony that neighbors

could have come outside to see the ambulance and police cars, the court did

not have to believe this was the only reason people exited their homes. See

Hansley, supra.

     Further, a police officer testified that he could hear the yelling when he

returned to his car, about ¼ block away from the scene.         Police officers

asked Appellant to lower her voice several times, but she refused and

seemed intoxicated.    She yelled profanities and eventually EMS personnel

determined they could not evaluate Appellant and left. Although Appellant

testified that her yelling was reasonable under the circumstances of the

situation, the court, as the trier of fact, was free to believe all, some, or

none of the evidence presented. We cannot say that the trier of fact could

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not have found the noise to have been unreasonable. See Forrey, supra;

Alpha Epsilon Pi, supra. Thus, there was sufficient evidence for the court

to find Appellant made an unreasonable noise that intentionally or recklessly

created a risk of causing a public inconvenience, annoyance or alarm.4

       In her third issue, Appellant argues that her constitutional right to

complain     about    police   conduct     outweighs     any   inconvenience    society

experienced during the incident.          She claims her conviction for disorderly

conduct under 18 Pa.C.S. § 5503 violated her constitutional right to free

speech. We disagree.

       “As the constitutionality of a statute is a pure question of law, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Omar, 981 A.2d 179, 185 (Pa.2009).

       This Court “has repeatedly determined that Article I, § 7 [of the

Pennsylvania Constitution] affords greater protection to speech and conduct

in   this   Commonwealth        than   does    its   federal   counterpart,   the   First

Amendment.”          Melvin v. Doe, 836 A.2d 42, 47 (Pa.2003) (internal



____________________________________________


4
  Appellant’s conviction for disorderly conduct is based on the unreasonable
noise she made while she was in the parking lot and arguing with police
officers and EMS personnel. We note that police officers brought Appellant
to the parking lot for an EMS evaluation pursuant to police policy regarding
tasers. We further note that Appellant does not challenge the propriety of
police tasing her in her home originally, so that issue is not before this
Court.



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quotations and citations omitted).    The Pennsylvania constitution provides,

in relevant part:

         § 7. Freedom of press and speech; libels

         The printing press shall be free to every person who may
         undertake to examine the proceedings of the Legislature or
         any branch of government, and no law shall ever be made
         to restrain the right thereof. The free communication of
         thoughts and opinions is one of the invaluable rights of
         man, and every citizen may freely speak, write and print
         on any subject, being responsible for the abuse of that
         liberty. No conviction shall be had in any prosecution for
         the publication of papers relating to the official conduct of
         officers or men in public capacity, or to any other matter
         proper for public investigation or information, where the
         fact that such publication was not maliciously or
         negligently made shall be established to the satisfaction of
         the jury; and in all indictments for libels the jury shall have
         the right to determine the law and the facts, under the
         direction of the court, as in other cases.

Pa. Const. art. I, § 7.

      However, the right to free speech is not absolute:

         “Allowing the broadest scope to the language and purpose
         of the Fourteenth Amendment, it is well understood that
         the right of free speech is not absolute at all times and
         under all circumstances. There are certain well-defined and
         narrowly limited classes of speech, the prevention and
         punishment of which have never been thought to raise any
         Constitutional problem. These include the lewd and
         obscene, the profane, the libelous, and the insulting or
         ‘fighting’ words those which by their very utterance inflict
         injury or tend to incite an immediate breach of the peace.
         It has been well observed that such utterances are no
         essential part of any exposition of ideas, and are of such
         slight social value as a step to truth that any benefit that
         may be derived from them is clearly outweighed by the
         social interest in order and morality. ‘Resort to epithets or
         personal abuse is not in any proper sense communication
         of information or opinion safeguarded by the Constitution,
         and its punishment as a criminal act would raise no

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         question   under     that   instrument.’  Cantwell  v.
         Connecticut, 310 U.S. 296, 309-310, 60 S.Ct. 900, 905-
         906, 84 L.Ed. 1213.” (Footnotes omitted.)

Commonwealth v. Mastrangelo, 414 A.2d 54, 58 (Pa.1980).

      Specifically, regarding free    speech and disorderly conduct, our

Supreme Court has held that:

         [A] state, in a valid exercise of its police power, may enact
         laws to protect the public peace even though such
         ordinances may curtail free speech or assembly.
         Commonwealth v. Mastrangelo, 414 A.2d 54, 58
         ([Pa.]1980). See: Chaplinsky v. New Hampshire, 315
         U.S. 568, 571–572, 62 S.Ct. 766, 769, 86 L.Ed. 1031
         (1942) (right of free speech found not to be absolute
         where language tends to incite an immediate breach of the
         peace). Instantly, we do not share Appellants’ view that
         the phrase “creates a hazardous or physically offensive
         condition” could be used to punish anyone exercising a
         protected First Amendment right. Our legislature
         specifically limited the breadth of the statute in subsection
         (a) which states that the offense of disorderly conduct
         requires an “intent to cause public inconvenience,
         annoyance or alarm, or recklessly creating a risk thereof.”
         Thus, we are of the opinion that the statute demonstrates
         a narrowly confined exercise of the Commonwealth’s police
         powers, which cannot be utilized to prohibit constitutionally
         protected conduct.

Commonwealth v. Roth, 588, 531 A.2d 1133, 1140 (Pa.Super.1987).

      Although Appellant is correct that she has a right to free speech, this

right is not absolute. This Court has held that the disorderly conduct statute

demonstrates a narrowly confined exercise of the Commonwealth’s police

powers. See Roth, supra. Because the statute is constitutional, it can be

enforced. Thus, Appellant’s claim that the law infringes on her constitutional

rights is meritless.


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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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