J-S43022-17

                                  2017 PA Super 392

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

MALAYSHA RAYNE PENNIX

                            Appellant                   No. 1709 WDA 2016


         Appeal from the Judgment of Sentence Dated October 6, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003128-2016

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

OPINION BY SOLANO, J.:                              FILED DECEMBER 12, 2017

        Appellant, Mayasha Pennix, appeals from the judgment of sentence

imposed after the trial court convicted her of possessing a weapon in a court

facility and disorderly conduct.1         We reverse Appellant’s convictions and

vacate her judgment of sentence.

        Appellant agrees with the trial court’s recitation of the facts.

Appellant’s Brief at 7. The trial court stated:

               Briefly, the evidence presented by the Commonwealth
        (through stipulation to the Sheriff’s Report and Affidavit of
        Probable Cause) indicated that on October 28, 2015, [Appellant]
        attempted to enter the Family Court building on Ross Street, but
        was detained at the metal detector when a scan of her book bag
        revealed the presence of a knife and razor blades. [Appellant]
        was asked to remove the items from her bag, but she had
        difficulty locating them and became argumentative with the
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 913(a)(1)and 5503(a)(3).
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      deputy. [Appellant] continued to get more and more agitated,
      and was heard screaming “Fuck you I ain’t got time for this,”
      “Fuck you police” and “I don’t got time for you fucking police.”
      (Allegheny County Sheriff’s Incident Report, 10/28/15, p. 1).
      She was subsequently instructed to leave the building, but she
      refused and continued to scream and be disruptive until she was
      escorted from the building by Sheriff’s deputies.

Trial Court Opinion, 3/3/17, at 1-2.

      Appellant adds that she “was not merely escorted from the building

. . . [but] was in fact arrested, [and] charged with the two crimes referred to

and taken into custody.” Appellant’s Brief at 7. Appellant appeared for a

bench trial on October 6, 2016.        The trial court rendered its verdicts the

same day, and sentenced Appellant to six months of probation. Appellant

filed a post-sentence motion on October 7, 2016. The trial court denied the

motion on October 12, 2016.            Appellant filed this timely appeal on

November 10, 2016.

      Appellant presents the following issues for our review:

      1. Was the evidence presented at Appellant’s trial insufficient to
         support her conviction for Possession of a Dangerous Weapon
         in a Court Facility, 18 Pa.C.S. § 913(a)(1), since the evidence
         did not establish (A) that the objects found in her backpack
         were “dangerous weapons” under Crimes Code § 913(f); (B)
         that she possessed those objects inside a “court facility,” as
         that phrase is defined by § 913(f); (C) that either the signage
         required by Crimes Code § 913(d) was posted as required on
         the date of her arrest or that her actual knowledge obviated
         the need for such signage; and (D) that she realized that a
         knife and razor blades were inside her backpack on the date
         of her arrest?

      2. Should this Court disregard the trial court’s declaration,
         contained in its Pa.R.App.P. 1925 advisory opinion, that it
         took sua sponte judicial notice of the layout of the Allegheny

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          County Family Division Courthouse and of the signage on that
          building, given that (A) the trial court’s failure to declare,
          during the course of Appellant’s trial, that it was taking such
          notice means that it did not in fact take judicial notice at trial,
          and post-verdict judicial notice is not permitted; (B) taking
          judicial notice at trial would have been improper since the
          subject matter was not one for which judicial notice could be
          taken (the rule being that judicial notice cannot be based on a
          judge’s personal knowledge and cannot be taken unless a
          matter is either known to the community as a whole or else is
          found in identified and unimpeachable sources); and (C)
          taking judicial notice would in any event have been improper
          since the failure to inform the parties that such notice was
          being taken precluded a response, and since the precise basis
          for the taking of judicial notice was never indicated?

      3. Was the evidence presented at Appellant’s trial inadequate to
         support her conviction for Disorderly Conduct via Obscene
         Utterances or Gestures, 18 Pa.C.S. § 5503(a)(3), given the
         absence of sufficient evidence establishing that she either
         uttered obscene words (as opposed to mere profane
         language) or made an obscene gesture?

Appellant’s Brief at 3-5.

      Appellant argues that her convictions should be vacated because the

Commonwealth failed to present sufficient evidence to establish her guilt

beyond a reasonable doubt under the applicable statutes. When reviewing a

claim that the trial court erred in determining the evidence was sufficient to

prove an offense, an appellate court must assess the evidence and all

reasonable inferences from that evidence most favorably to the verdict

winner.    Commonwealth v. Whitacre, 878 A.2d 96, 99 (Pa. Super.),

appeal denied, 892 A.2d 823 (Pa. 2005).            As long as the evidence and

inferences provide sufficient information to establish proof beyond a

reasonable    doubt,   the   evidence    is   sufficient.   Id.     Further,    the

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Commonwealth can meet its burden of reasonable doubt “by means of

wholly circumstantial evidence.” Id.

      The statute making it a crime to possess a dangerous weapon in a

court facility states:

      A person commits an offense if he:

      (1) knowingly possesses a firearm or other dangerous weapon in
      a court facility or knowingly causes a firearm or other dangerous
      weapon to be present in a court facility

18 Pa.C.S. § 913(a)(1). The statute defines a “dangerous weapon” as —

      A bomb, any explosive or incendiary device or material when
      possessed with intent to use or to provide such material to
      commit any offense, graded as a misdemeanor of the third
      degree or higher, grenade, blackjack, sandbag, metal knuckles,
      dagger, knife (the blade of which is exposed in an automatic way
      by switch, push-button, spring mechanism or otherwise) or other
      implement for the infliction of serious bodily injury which serves
      no common lawful purpose.

18 Pa.C.S. § 913(f) (emphasis added).        The statute regarding disorderly

conduct provides:

      A person is guilty of disorderly conduct if, with intent to cause
      public inconvenience, annoyance or alarm, or recklessly creating
      a risk thereof, he:

             ...

      (3) uses obscene language, or makes an obscene gesture;

18 Pa.C.S. § 5503(a)(3).

      The trial court asserts that Appellant “has failed to present any

meritorious issues on appeal,” stating that it was “well within its discretion in

finding that the knife and razor blades were ‘dangerous weapons’” and that


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Appellant “repeatedly used obscene language towards the Sheriff’s Deputies

. . . to support the conviction for disorderly conduct.” Trial Court Opinion,

3/3/17, at 1, 4-5. However, the Commonwealth concedes there may be a

basis to vacate Appellant’s conviction for possession of a dangerous weapon

in a courthouse because “the two inch folding knife and two individual razor

blades . . . may not fit the definition of a dangerous weapon under § 913.”

Commonwealth Brief at 5. The Commonwealth also states that Appellant’s

conviction    for   disorderly   conduct   may   be   vacated   because   Section

5503(a)(3) of the Crimes Code requires proof that Appellant used obscene

language or made obscene gestures, and, although Appellant used profanity,

“recent case law indicates that [Appellant’s profanities] do not fall under the

realm of obscenities.” Id.

      Appellant argues that the “folding knife with a two inch blade” and two

razor blades recovered from her book bag “do not constitute ‘dangerous

weapons’ as defined by Crimes Code § 913(f).” Appellant’s Brief at 8. She

states:

      For a knife to be a § 913(f) dangerous weapon, it must either be
      a dagger, a knife whose blade is exposed via a switch or other
      automated method, or a knife that serves no common lawful
      purpose. Appellant’s common ordinary folding knife was not
      such a knife and was not shown to be such a knife. For the
      razor blades to constitute § 913(f) dangerous weapons, they
      must lack a common lawful purpose, which was not shown.

Id. at 8-9.




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       At trial, Appellant testified that when she entered the courthouse on

October 28, 2015, she possessed a book bag which she had not used “for

some time.” N.T., 10/6/16, at 4. She stated that there were many items

already in the bag when she decided to use it to carry her court papers, and

she did not realize the knife and razor blades were in the bag. Id. at 4-5.

Appellant was surprised when the metal detector sounded, and admitted to

becoming upset and expressing her frustration when she was directed to

recover the items from the book bag, was not sure what they were, and

could not locate them right away. Id. at 5. Appellant described the knife as

“a pocketknife.”     Id. at 7.2    There was no other testimony concerning the

character of the knife or razor blades.

       The trial court stated:

       Although there was no testimony elicited regarding the knife
       itself, and specifically no mention of whether it was a type of
       automatic or spring release, the Sheriff’s Incident Report and
       Affidavit of Probable Cause indicate that the knife was a folding
       knife with a two (2) inch blade. No further details were provided
       regarding the razor blades.

Trial Court Opinion, 3/3/17, at 5. In support of its holding that the knife and

razor blades nevertheless qualified as dangerous weapons, the court cited an




____________________________________________
2
 A “pocketknife” is “a knife that has one or more blades that fold into the
handle and can be carried in the pocket.” Merriam-Webster, http://www.
merriam-webster.com/dictionary/pocketknife (accessed Nov. 14, 2017).
This definition does not exclude pocketknives that fold manually.



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unpublished memorandum from this Court,3 which, under our Internal

Operating Procedures, is not a citable authority.        See 210 Pa. Code

§ 65.37(A); Liberty Mut. Ins. Co. v. Domtar Paper Co., 77 A.3d 1282,

1286 (Pa. Super. 2013), affirmed, 113 A.3d 1230 (Pa. 2015).           We are

aware of no precedential case law that addresses whether a pocketknife and

razor blades like those carried by Appellant qualify as dangerous weapons.

       The statute states that a knife is a dangerous weapon if it has a blade

that “is exposed in an automatic way by switch, push-button, spring

mechanism or otherwise.” 18 Pa.C.S. § 913(f). There is no evidence in the

record that Appellant’s pocketknife opened with an automatic switch or other

device.    Nor is there any evidence that Appellant’s pocketknife or razor

blades qualified under Section 913(f)’s alternate definition of “implements

for the infliction of serious bodily injury which serve[] no common lawful

purpose”; while the absence of proof makes judicial notice unnecessary, we

recognize the common knowledge that such implements often serve as

utilitarian tools. In light of this record, we conclude that the Commonwealth

failed to meet its burden of presenting sufficient evidence to establish that

____________________________________________
3
  The trial court and both parties cited to Commonwealth v. Hyatt, No.
1259 WDA 2012, 2013 WL 11267522 (Pa. Super., Apr. 16, 2013), in which
we affirmed the appellant’s judgment of sentence based on the trial court’s
opinion. The trial court in Hyatt stated that it properly applied a deadly
weapon enhancement to the appellant’s sentence for a robbery committed
while he used a hunting knife, even though the knife “does not seem to fall
under the definition of a dangerous weapon” in the Crimes Code. Hyatt, at
*5. The Hyatt decision is not on point.


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Appellant entered the courthouse in possession of “dangerous weapons” in

violation of Section 913, and we therefore reverse her conviction for that

offense.

      Similarly, the record does not support Appellant’s conviction of

disorderly conduct under Section 5503(a)(3) for the use of “obscene

language” or the making of “an obscene gesture.” Appellant admitted that

she became “very upset” and was “using profanity with the police.”          N.T.,

10/6/16, at 5. She testified it “wasn’t my first response. I was trying to

look for it actually, and the cop was like — the police was like, you know, I’m

not going to look for it, you’re going to get it. . . . I didn’t know where it was

. . . I was having a hard time finding it, that’s what I’m trying to say.” Id.

at 6-7.    There was no other testimony regarding whether Appellant acted

with an “intent to cause public inconvenience, annoyance or alarm” or was

“recklessly creating a risk thereof” — essential elements under the statute.

      It is well-settled that “the offense of disorderly conduct is not intended

as a catchall for every act which annoys or disturbs people; it is not to be

used as a dragnet for all the irritations which breed in the ferment of a

community.” Commonwealth v. Mauz, 122 A.3d 1039, 1041 (Pa. Super.

2015) (citations omitted).      The Commonwealth has cited this Court’s

decision in Commonwealth v. McCoy, 69 A.3d 658, 665 (Pa. Super. 2013),

in which we held that there was insufficient evidence to support a

defendant’s conviction of disorderly conduct when the defendant chanted


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“fuck the police” during a funeral procession of a fallen police officer. We

concluded that the defendant’s words were not obscene under Section

5503(a)(3) because “there was no evidence that the chant was intended to

appeal to anyone’s prurient interest nor did it describe, in a patently

offensive way, sexual conduct.” Id. at 666.

     Likewise, in Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super.

2000), we reversed an appellant’s conviction of disorderly conduct under

Section 5503(a)(3) for profanely responding “fuck you, asshole” to a street

department employee and accompanying the response with the extension of

his middle finger. We explained:

            The first inquiry is what is the definition of “obscene” for
     purposes of 18 Pa.C.S. § 5503(a)(3). This Court has held that,
     for purposes of a disorderly conduct statute prohibiting the use
     of obscene language, language is obscene if it meets the test set
     forth in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L.
     Ed. 2d 419 (1973):

        (a) whether “the average person, applying contemporary
        community standards” would find that the work, taken as a
        whole, appeals to the prurient interest, (b) whether the
        work depicts or describes, in a patently offensive way,
        sexual conduct specifically defined by the applicable state
        law, and (c) whether the work, taken as a whole, lacks
        serious literary, artistic, political, or scientific value.

     Commonwealth v. Bryner, 438 Pa. Super. 473, 652 A.2d 909,
     912 (1995). In Bryner, our Court held that the phrase “go to
     hell Betsy” was not obscene. Thus, we use the Bryner test to
     determine whether words and gestures are obscene for purposes
     of 18 Pa.C.S. § 5503(a)(3).

           Our next inquiry is whether the “F-word” and the gesture
     are obscene within the meaning of 18 Pa.C.S. § 5503(a)(3). . . .


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            Our Supreme Court addressed Section 5503(a)(1) (and not
      Section 5503(a)(3)) recently in Commonwealth v. Hock, 556
      Pa. 409, 728 A.2d 943 (1999). There, a person directed a
      profane remark, “F- you, asshole,” at a police officer. The Court
      concluded that the utterance was not sufficient to support a
      conviction of disorderly conduct under Section 5503(a)(1)
      because the utterance did not amount to “fighting words” under
      18 Pa.C.S. § 5503(a)(1). The Court concluded that, under the
      facts of the case, Hock’s comment did not risk an immediate
      breach of the peace. Hock, 728 A.2d at 946. . . .

              While Justice Castille dissented in Hock, he commented
      that:

         Appellant’s words, while certainly obscene according to
         common parlance, do not fit the definition of “obscene”
         under Section 5503(a)(3) of the Disorderly Conduct
         Statute.... [L]anguage is obscene if it meets the test set
         forth in Miller ....

      Id. at 947, n. 1.

Kelly, 758 A.2d at 1286–87.

      Here, as in Kelly, there is insufficient evidence to support Appellant’s

disorderly conduct conviction where her words “were angry words . . .

having nothing to do with sex.” Kelly, 758 A.2d at 1288. Our conclusion in

Kelly also applies here:

      [W]hile the words and conduct used by Appellant were
      disrespectful, insulting and offensive, they were, in the
      circumstances of this case, not “obscene” within the meaning of
      Section 5503(a)(3). Further, the record fails to support a
      conclusion that Appellant’s comment risked an immediate breech
      of the public peace.

Id. (citation omitted).

      In sum, our review of the record reveals that the evidence was

insufficient to support Appellant’s convictions under the Crimes Code for

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possessing a weapon in a court facility under Section 913 and disorderly

conduct under Section 5503(a)(3).     We therefore reverse the convictions.

Our disposition makes it unnecessary to reach Appellant’s other issues.

      Judgment of sentence vacated.      Appellant discharged.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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