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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 -
                                                                                       Circulated 02/21/2020 09:56 AM




                 COMMONWEALTH OF PENNSYLVANIA                       : IN THE COURT OF COMMON PLEAS

                                     vs.                            : LAWRENCE COUNTY, PENNSYLVANIA

                             BRIAN PAUL SIMPSON,                    : SUMMARY APPEAL

                                            Defendant.              : NO. 92 OF 2018

                                                     APPEARANCES

                 For The Commonwealth:                         Jonathan R. Miller, Esq.
                                                               Office of the District Attorney
                                                               430 Court Street
                                                               New Castle, PA 16101

                 For The Defendant:                            Pro Se

                                                          OPINION

                 cox,   J.                                                                         April 12, 2019

                        This Opinion is authored pursuant to Pa.R.A.P. 1925(a).

                         Brian Paul Simpson appealed to the Court of Common Pleas from the guilty

                 finding by the magisterial district judge. This court held a de novo trial on January 29,

                 2019. This court found Simpson guilty of violating 18 Pa.C.S.A. § 5503(a)(2). Simpson

                 filed a notice of appeal on February 26, 2019. This court ordered the preparation of a

                 Pa.R.A.P. 1925(b) Concise Statement of the Errors Complained of on Appeal. Simpson

                 filed the Concise Statement on March 21, raising six errors.

                        The facts which make up this case are as follows:

                        On Thursday, April 5, 2018, Trooper Jerel T. Smith and Trooper Robert Cox were
                                                                                                                        I

                 working the midnight to 8 A.M. shift ·out of the New Castle Barracks of the Pennsylvania
    53RO
  JUDICIAL
  DISTRICT                                         F1LED/ORIG1NAL

'WRENCE COUNTY                                   2019 APR I 2 PH 2: 07
 PENNSYLVANIA



                                                 JODlKLABON·ESOlOO
                                                  oon    t,,.�·\n   CLERK.
                   State Police.1 The Pennsylvania State Police received a noise complaint about shooting

                   at around 3:00 AM. made by Simpson's neighbor, either John Argiro or his wife. The

                   State Police dispatch contacted Simpson and requested him to proceed to a nearby

                   Dollar General so the responding officers could speak to him safely.2 Trooper Smith was

                   first dispatched to the house of John Argiro before meeting Simpson 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 Simpson to not shoot his firearm at that time of night or he

                   would probably be cited.3 The same procedure of meeting at the Dollar General was

                   used in the prior incident. Simpson was not charged based on this prior incident.4

                           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
                                                                  5
                   between Simpson and Trooper Smith.

                           Argiro testified Simpson 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.6 Argiro did not see a flash on the particular incident in question.'

                           Argiro also testified that Simpson does not shoot during the daytime, only in the

                   early morning.8




                   1
                     Notes of Testimony, January 29, 2019, p. 31, 34.
                   2
                     Notes of Testimony, January 29, 2019, p. 32, 35.
                   3
                     Notes of Testimony, January 29, 2019, p. 31-33.
                   4
                     This court considers this warning for the sole purpose of the due process reliance doctrine discussed
                   herein.
                   5
    53RD             Notes of Testimony, January 29, 2019, p. 35.
                   6
  JUD IC IA L        Notes of Testimony, January 29, 2019, p. 6, 29.
  DISTRICT         7
                     N.T., January 29, 2019, p. 9.               FILEDJORIGIN"L
                   8
                     NT., January 29, 2019, p. 10.
,wRENCE   COUNTY
PENNSYLVANIA
                                                             2019 APR I 2 P" 2: 07
                                                                           2
                                                             JODI KLAOON·�SOLOO
                                                               __ ....     r'.01/
                                                                         • �·!"'>   ,.,,
                                 While it was clear Argiro and Simpson 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, Trooper Smith indicated the

                       reason Simpson gave for shooting at that time was because he did not like some lights

                       which shone into his bedroom and disturbed his sleep.9

                                 This court credited Trooper Smith as credible.

                                 Did the citation comport with D.ue. Process?

                                 Simpson's first claim of error is that this court violated his due process rights

                       because the original citation and this court's guilty finding with regard to Section

                       5503(a)(2) do not comport with the requirement of a formal charge under the Sixth

                       Amendment to the United States Constitution.

                                 Simpson is correct that the right to formal charges is guaranteed under the Sixth

                       Amendment.

                                 "The right to formal notice of charges in a criminal proceeding is guaranteed by

                       the Sixth Amendment to the United States Constitution and is so basic to the fairness of

                       subsequent proceedings that it cannot be waived even if the defendant voluntarily

                       submits to jurisdiction of the court. Formal accusation and specific charge enables a

                       defendant to properly defend and protect himself from further prosecution of the same

                       offense, and enables the court to determine the sufficiency of the prosecution's case to

                       support a conviction." Com. v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. Ct. 1997)

                       (citing Com. v. Goldblum, 447 A.2d 234 (Pa. 1982)).

                                For summary offenses, Pa.R.Crim.P. 403(a)(6)10 provides: "(A) Every citation shall
     53R D
   JUDICIAL            contain: (6) a citation of the specific section and subsection of the statute or ordinance
   DISTRICT

                       9N.T,
                               January 29, 2019, p. 36.
lWRl:..NCl:.. COUNTY
 Pl:NNSYLVANtA

                                                                      3
                   allegedly violated, together with a summary of the facts sufficient to advise the defendant

                   of the nature of the offense charged;"

                           The citation in the present case charges a violation of 18 Pa.C.S.A. § 5503(a)(1),

                   (2), (3), and (4). As these subsections all relate to very different fact patterns under the

                   general umbrella of disorderly conduct, the citation plainly violates the requirement that

                   the defendant is given notice of the specific section and subsection under which he is

                   charged.

                           The remedy for violation of this rule is not universally dismissal. Actual prejudice

                   against the defendant is required for that remedy. Pa.R.Crim.P. 109 says: "A defendant

                   shall not be discharged nor shall a case be dismissed because of a defect in the form or

                   content of a complaint, citation, summons, or warrant, or a defect in the procedures of

                   these rules, unless the defendant raises the defect before the conclusion of the trial in a

                   summary case or before the conclusion of the preliminary hearing in a court case, and

                   the defect is prejudicial to the rights of the defendant." (emphasis added).

                           "Such prejudice will not be found where the content of the citation, taken as a

                   whole, prevented surprise as to the nature of summary offenses of which the defendant

                   was found guilty of at trial, or the omission does not involve a basic element of the

                   offense charged." Com.         v. Nicely, 988 A.2d 799, 807 (Pa. Cmwlth. Ct. 2010) (cleaned

                   up).

                           The citation in the present case provides notice of the general section under

                   which he was charged, Section 5503(a), and then states: "To Wit SIMPSON did fire his

                   rifle at 0300 hrs. on a school night which caused the public to be annoyed and alarmed."
    5)RD
  JUDICIAL
  DISTRICT
                   io Borriello deals with Rule 53 of the Rules of Criminal Procedure. As to subsection (a)(6), Rule 53 and its
                   replacement Rule 403 are facsimiles.
\WRENCE   COUNTY
PENNSV LVANIA

                                                                         4
                            This final sentence of the citation cannot be read except as a noise-based citation.

                   Section 5503(a)(2) is the sole section which dealt with noise. The superfluous charging

                   of the other subsections did not cause prejudice to Simpson, and his citation should not

                   be dismissed on this basis.

                            The second claim of error by Simpson consists of two subclaims.

                            i. Did the C.ommonwealth sufficiently prove. the ..mens rea .element?

                            First is the general claim he did not have the intent required under Section 5503.

                            The intent element of Section 5503 requires the Commonwealth to prove, at a

                   minimum, the defendant recklessly created a risk of public inconvenience, annoyance, or

                   alarm.

                            In Com. v. Alpha Epsilon Pi, 540 A.2d 580 (Pa. Super. 1988), the Superior Court

                   reviewed the question of whether loud music could constitute unreasonable noise. "[T]he

                   intent element may be satisfied on a showing of recklessly creating a risk of public

                   inconvenience or annoyance. Here, a music sound system was operated at 11 :20 at

                   night [on a Wednesday), from a dwelling house with the windows open, such that the

                   sound was heard by a resident living on a parallel street one block distant, and the sound

                   continued such that it was readily heard by an investigating police officer at a distance of

                   fifty yards from the house. These facts are sufficient to permit the trier of fact to find a

                   reckless disregard for public inconvenience and annoyance."     kt at 583-584.
                            Here, a gun was fired multiple times at around 3:00 A.M. on a Thursday. The

                   shots were fired outside and were heard from a residence around 200 yards away.

                   Based on Alpha Epsilon Pi, the facts were clearly sufficient to find reckless disregard for
    53RD
  JUDICIAL         public inconvenience and annoyance. Additionally, Simpson had a specific grievance
  DISTRICT




\WRENCE   COUNTY
PENNSYLVANIA

                                                                  5
                        about lights shining through his window, which he told Trooper Smith when he was

                        contacted about his shooting on April 5, 2018. This specific grievance and Simpson's

                        response to that grievance further support the conclusion he had intent to cause public

                        inconvenience, annoyance, or alarm.

                               ii.   Does the due process reliance doctrine bar the prosecution?

                               The second subclaim is that the North Beaver Township Police told him his

                        shooting was legal, and that controls the outcome of this case.

                               The due process reliance doctrine, sometimes called entrapment by estoppel, is

                        an exception to the maxim that mistake of law is no defense and is raised when a

                        defendant alleges he relied on official statements which affirmed the legality of certain

                        behavior. Com. v. Kratsas, 764 A.2d 20, 31 (Pa. 2001). While the defense forecloses

                        prosecution should it apply, it is "rarely available," and arises "in a narrow set of unique

                        and compelling circumstances." .!.Q.. at 31, 32.

                               Pennsylvania has adopted a four-factor approach in applying the due process

                        reliance defense.

                               "First, in order to support invocation of the doctrine, most jurisdictions require that

                        there be an affirmative representation that certain conduct is legal. .. Second, the

                        representation should be made by an official or a body charged by law with responsibility

                        for defining permissible conduct respecting the offense at issue. Third, actual reliance

                        upon the official's statements should be present... Finally, the view is commonly held that

                        reliance must be in good faith and reasonable given the identity of the government

                        official, the point of law represented, and the substance of the statement. Reliance is
      5JRU
   JUDICIAL             reasonable and in good faith only where a person truly desirous of obeying the law would
   DISTRICT




,wRl:::�CE   COU"'1TV
P�NNSVLVANIA
                                                                       6
                    have accepted the information as true, and would not have been put on notice to make

                    further inquiries." � at 32-33 (numerous citations omitted). The party seeking to apply

                    the defense bears the burden of proving each element. � at 33.

                              Simpson fails multiple aspects of this test.

                              First, Simpson must prove there was an affirmative representation that certain

                    conduct is legal. Simpson points to statements of North Beaver Township Police in

                    allegedly assuring him his conduct was legal. While Simpson argues these statements

                    were made, their contents were never brought into evidence by any means. Throughout

                    the de novo trial, Simpson attempted on cross-examination of the Commonwealth's

                    witnesses to present these statements through hearsay and argument, but neither the

                    substance of the statements nor their speaker was ever admitted. No North Beaver

                    Township official was called to testify or appeared at the hearing. Simpson fails the first

                    factor.

                              Second, no evidence was introduced about who on the North Beaver Township

                    Police made an affirmative statement and in what context the statement was made.

                    These are critical factors under the due process reliance doctrine and must be shown

                    even when an affirmative statement is made. The context of the statement is important to

                    provide evidence about whether an individual should justifiably rely or it was just laxity of

                    enforcement. Laxity of enforcement is insufficient to justify the application of the doctrine.

                    kl at 33.
                              In Cox v. Louisiana, 379 U.S. 559 (1965), the highest police officials of a city

                    interpreted a statute prohibiting demonstrations "near" a courthouse. l!t. at 572. These
     53RD
  JUDICIAL          high police officials, in the presence of the sheriff and mayor of the city, told
  DISTRICT




�WRENCE COUNTY
 PENNSYL.VA.Nl/4.
                                                                     7
                  demonstrators they could protest across the street from the courthouse. Later, the sheriff

                  ordered the group to disperse, contradicting the previous interpretation which was made

                  in his presence. The demonstrators were charged with violations of the courthouse

                  proximity statute.

                         In Raley v. Ohio, 360 U.S. 423 (1959), the Un-American Activities Commission of

                  the State of Ohio held a hearing in which it examined individuals relating to Communist

                  Party activities of several individuals. At one point in testimony, the Chairman of the

                  Commission erroneously told a witness: "I should like to advise you under the Fifth

                  Amendment, you are permitted to refuse to answer questions that might tend to

                  incriminate you. * * * But you are not permitted to refuse to answer questions simply for

                  your own convenience." [d, at 426-427. Later, this witness and others were prosecuted

                  for contempt of the commission for their refusal to answer questions.

                         The Supreme Court in both of these cases reversed the convictions based on the

                  reliance on official interpretations, but in each case, the officials making the interpretation

                  were in high-ranking positions. The Supreme Court emphasized in Raley the Chairman

                  of the Commission was in a clear position to give such assurances: "the Chairman of the

                  Commission, who clearly appeared to be the agent of the State in a position to give such

                  assurances"; "the State clearly had told him was available to him"; "they were the voice

                  of the State." (emphases added).

                         Due process reliance will not apply in most circumstances when there is an

                  erroneous interpretation of the law by a party who is not generally in charge of

                  performing such interpretation. In this case the record does not provide any clarification
    53RO
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                                                                8
                   about who told Simpson he could shoot and in what context. It was Simpson's burden to

                   demonstrate these facts.

                             Finally, the Court does not find it credible Simpson actually relied, in good faith, on

                   the statements of a member of the North Beaver Township Police. Simpson's behavior

                   indicates he would only accept statements which affirmed his belief his conduct was

                   legal. Trooper Smith testified that prior to the April incident for which Simpson is charged

                   here, he and Trooper Young responded to a call at 2:00 A.M. or 3:00 A.M. and informed

                   Simpson he could not shoot his gun at that time of night. Simpson's continued use of his

                   firearm at that time of night indicates both he was not "truly desirous of obeying the law"

                   and undermines the reliance Simpson may have had on the North Beaver Township

                   Police being "the voice of the State."

                             Simpson's argument on these bases is unpersuasive.

                             Did the Commonwealth sufficiently prove public harm?

                             Simpson's third claim of error is that there was insufficient evidence of the public

                   harm element because the complainant and the Defendant both were on their own

                   private properties. "Being in public is necessary to convict, both for the Defendant and

                   Complainant. The Court stated Defendant was in a public area. He was not. He was on
                                                                                            11
                   his private property at all times that the target shooting occurred. �

                             "(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.A. § 5503(a)(2).

                             "(c) Definition.--As used in this section the word "public" means affecting or likely
    53RD
  JUDICIAL         to affect persons in a place to which the public or a substantial group has access; among
  DISTRICT

                   11
                        Concise Statement of the Errors Complained of on Appeal, Error 3.
,wRENCE   COUNTY
PENNSYLVANIA
                                                                         9
                 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.A. § 5503(c) (emphasis added).

                       Simpson engaged in target shooting in a neighborhood with multiple properties.

                 Argiro testified his house was between 150-200 yards from Simpson's property where he

                 was shooting.

                       Simpson need not have been on public property in order to cause public

                 inconvenience under Section 5503. Sound which emanates out from private property into

                 a neighborhood can constitute a violation even if all parties involved are on private

                 property. Alpha Epsilon Pi, supra.

                       Did    Simps.on's    shooting    fit   within   the   normal   noisiness    of   the

                 neighborhood?

                       Simpson's fourth claim of error is that his firing of a firearm at 3:00 AM. is not

                 unreasonable noise because it fits within the general noise profile of the neighborhood in

                 which his shooting happened.

                       Simpson is correct that the relative noisiness of a neighborhood is relevant to the

                 charge of disorderly conduct. He also appropriately defines the test for unreasonable

                 noise under Pennsylvania law. "Noise must be "unseemly" to constitute disorderly

                 conduct, and that "unseemly" is understood to mean "not fitting or proper in respect to

                 the conventional standards of organized society, or a legally constituted community."

                 Alpha Epsilon Pi, 540 A.2d at 583.

                       Alpha Epsilon Pi again presents factual and argumentative similarity to the
    5JRtl
  JUDICIAL       present case. There, the fraternity argued because the neighborhood was on "fraternity
  DISTRICT




,wRENCE COUNTY
 PENNSYLVANIA
                                                              10
                 row", where presumably the noise cited did not significantly deviate from the normal

                 range of noise in that area. l!;L at 583. The Superior Court did not put much weight on

                 that argument. !Q,, While persuasive, this issue did not appear to be the central question

                 of Alpha Epsilon Pi.

                           In the present case, Defendant was shooting his firearm at 3:00 A.M. on a

                 weeknight. His shots could be heard from inside another house 150-200 yards away.

                           As examples of why this noise fit within the regular noise of the neighborhood,

                 Simpson elicited testimony that residents of the neighborhood, including Argiro, would

                 hunt during the daytime and that fireworks were also common in the summertime at night

                 and during the daytime. This court, in judging the facts of the case, finds a qualitative

                 difference between the recreational use of fireworks in the summertime, fireworks in the

                 daytime, shooting in the daytime, as compared to the shooting the Defendant did at 3:00

                 A.M. The shooting at this time of night was outside of the noise which fit within the

                 conventional standards of this neighborhood.

                           Additionally, as part of the fourth claim of error, Simpson argues the Court should

                 have allowed him to continue to develop the line of questioning about the standards of

                 the neighborhood. The transcript of the de novo trial reflects this court allowed Simpson

                 to develop this area of fact development.12 During that development, this court only

                 stopped       the   questioning      on three occasions,     first when   examination   became

                 argumentative, second, when repetitive questions were asked, and third when Simpson

                 asked a question relating to the witness' opinion about the legality of fireworks.

                           At no time did this court prevent Simpson from factually developing the area of the
    53RO
  JUDICIAL       relative noise in the neighborhood.
  DISTRICT

                 12
                      Notes of testimony, January 29, 20rn, pp. 18-23.
�WRENCE COUNTY
 PENNSYLVANIA
                                                                         11
                          Errors 5 and 6: fs there a statutory: defense to the prosecution?

                          The fifth and sixth claims state this court erred in not applying 34 Pa.C.S.A. §

                   2507(b)(4) and 35 P.S. § 4501 as exempting Simpson's behavior from the charge of

                   Disorderly Conduct.

                          34 Pa.C.S.A. § 2507(a) states: "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(b) creates exceptions to the summary offense created by

                   subsection (a). "(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." (emphasis added).

                          Simpson is not charged under Section 2507(a). The 2507(b)(4) defense does not

                   apply to all offenses, only those listed under 2507(a).

                          As to the application of 35 P.S. 4501, that section states: "All owners of rifle,
    53Ro
  JUD IC IA L      pistol, silhouette, skeet, trap, blackpowder or other ranges in this Commonwealth shall
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                                                                 12
                     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."

                              This court would hold as a matter of law that Simpson's informal activity of target

                     shooting on his property does not make him an owner of a range for the purposes of

                     Section 4501. While Section 4501 does not include a definitions section, it 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. While there would be marginal situations of course, and

                     this court does not intend to limit the definition to solely commercial ranges, the extreme

                     informality of Simpson's specific shooting activity makes it difficult for this court to

                     characterize him as an 'owner of a range' even what that phrase is taken in a very broad

                     sense.

                              For the sake of a full consideration of the question, a discussion of the field

                     follows:

                                "The object of all interpretation and construction of statutes is to ascertain and

                     effectuate the intention of the General Assembly." 1 Pa.C.S.A. § 1921 (a).

                              A review of the legislative history of Section 4501 reveals some discussion of the

                     purpose of the statute around the time of its enactment. In the 1987-1988 Session,
     53RD
   JUDJCIA L         Section 4501 was enacted as part of HB1818. During the senate's consideration of the
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Pt.WR!::NC� COUNTY
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                                                                    13
                  bill, Senator Greenwood offered the statement: "The intent of the author of this legislation

                  and its chief sponsors in this and the other House correctly want to protect shooting

                  ranges from nuisance suits or from overregulation that would inhibit them from being

                  enjoyed by their members." 1988 Leg is. J. No. 35, 2225 (emphasis added).

                         This statement moderately implies that the intent of the legislature was to

                  immunize organized shooting ranges, rather than to immunize every sportsman who

                  wants to put up a target in their backyard without limit.

                         The Court also conducted a review of other states to determine if there were

                  similar statutes which may have been a reference in the construction of the Pennsylvania

                  statute. Unfortunately, Pennsylvania adopted its statute in 1988, and of the many other

                  states which immunize shooting ranges against noise, it appears all comparable statutes

                  were enacted after that date.

                         That being said, a review of these statutes indicates broad legislative agreement

                  among the several states that it would be prudent to protect shooting ranges when they

                  are properties that are truly designed for shooting sports. The states have different

                  methods of preserving this limitation. Ohio requires "a facility operated for the purpose of

                  shooting with firearms or archery equipment.." Ohio R. C. § 1533 .83. Alaska requires

                  "[a]n area designed and used for rifle shooting ... " Ala. Code§ 6-5-341.13

                         Given the broad agreement among states to not include all shooters in the

                  definition of shooting range, as well as the statement of Senator Greenwood at the time

                  of the Pennsylvania enactment, it is reasonable to infer the intent of the legislature fell


                  13
    53RU            See also Brief for Respondent, Lone Pine Hunters' Club, Inc. RESIDENTS DEFENDING THEIR
  JUDICIAL
                  HOMES, et at., v. LONE PINE HUNTERS' CLUB, INC., Town of Hollis & Town of Hollis Planning Board.,
  DISTRICT
                  2006 WL 4649234 (N. H.) (providing a helpful listing of many state statutes on this topic)


,WRENCE: COUNTY
 PENNSYLVANIA
                                                                  14
                 within this broad agreement and did not intend to reach informal backyard shooting

                 ranges in its protection.

                        Moreover, the disorderly conduct statute is a noise control law. The immunity

                 created by Section 4501 provides a carve-out for noise control laws which were extant at

                 the time of the enactment of 4501. As the disorderly conduct statute was extant at the

                 time of the passing of 4501, it applies to Defendant.

                        In any event, Section 4501 should be considered an affirmative defense. The

                 burden of proof and the burden of persuasion for affirmative defenses rest on the party

                 raising that defense. Section 4501 's immunity only applies to 'normal ard accepted

                 shooting activity.' Simpson's case did not present any evidence his behavior fell within

                 normal and accepted shooting activity. Under any circumstances, it is hard for this court

                 to imagine it is normal and accepted shooting activity to shoot at 3 AM. on a weeknight

                 in open-air in an area which has neighboring residential properties. In fact, the testimony

                 he elicited from John Argiro made clear the normal shooting activity in that area was

                 confined to daytime hunting. Accordingly, under the facts presented, Simpson's behavior

                 fell outside the normal and accepted shooting activity of the community in which it

                 occurred.

                       The conviction should be affirmed.




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