J-S12004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DANIEL MATTHEW KLAHR                       :
                                               :   No. 1518 MDA 2017
                       Appellant               :

           Appeal from the Judgment of Sentence September 6, 2017
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-SA-0000239-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                               FILED MARCH 13, 2018

        Daniel Klahr appeals from his judgment of sentence, entered in the

Court of Common Pleas of Berks County, following his summary conviction 1 of

disorderly conduct (public inconvenience).2 After careful review, we affirm.

____________________________________________


1As this Court stated in Commonwealth v. Parks, 768 A.2d 1168 (Pa.
Super. 2001):

        Our standard of review of a trial court’s adjudication entered
        following a de novo trial on a summary offense is limited to
        whether the trial court committed an error of law and whether the
        findings of the trial court are supported by competent evidence.
        The adjudication of the trial court will not be disturbed on appeal
        absent [an] . . . abuse of discretion. An abuse of discretion exists
        when the trial court has rendered a judgment that is manifestly
        unreasonable, arbitrary, or capricious, has failed to apply the law,
        or was motivated by partiality, prejudice, bias, or ill will.

Id. at 1171 (citations and quotation marks omitted).

2   18 Pa.C.S. § 5503(a)(4).
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     The trial court aptly summarized the facts of the case as follows:

     On April 19, 2017, Heather Bailey, with her son as a passenger,
     parked in a perpendicular parking space in the lot of a McDonald’s
     in Exeter Township, Berks County, having planned to meet
     someone there. She noticed she had parked somewhat crooked,
     so she began to move out of the space and back in to straighten
     out her car. At this point, []Klahr pulled in with his pickup truck
     and trailer, parking across several marked spaces with the front
     of his truck pointing toward the driver side of Ms. Bailey’s car. Ms.
     Bailey testified that the truck was quite close to her car, while
     [Klahr] testified there was a space in between.

     With her window still closed, Ms. Bailey turned toward [Klahr] and
     said, “What are you doing?” or possibly, “What the **** are you
     doing?” She initially testified that she did not use the obscenity
     but admitted she may have, but perhaps only after [Klahr] got out
     of his truck and asked her, “What the **** did you say?” The
     evidence did not establish the exact sequence of events, but the
     two argued. [Klahr] began videotaping and walking around Ms.
     Bailey’s car. Ms. Bailey opened her window and told [Klahr] to
     get away from her car, said she would call the police, and indeed
     did call and speak to dispatch. [Klahr] told Ms. Bailey she needed
     to learn how to park and made comments about her smoking in
     the car with her son and using bad language around him. [Klahr]
     continued to record video while leaning against his truck and
     eating a sandwich. Ms. Bailey got out of her car, now visibly and
     audibly on the phone with dispatch, and went to get the license
     plate number from the back of [Klahr’s] truck. [Klahr] got back
     into his truck, backed up a bit, and then drove forward to leave.
     As he pulled forward, his truck hit the side of Ms. Bailey’s leg. She
     was not hurt.

     Mr. [Michael] Flaherty, his girlfriend Casssandra Kern, and their
     two daughters were also parked at the McDonald’s.               The
     commotion attracted their attention, particularly as the argument
     got louder. Mr. Flaherty testified to hearing the argument, seeing
     the parking situation, seeing [Klahr] videotaping, and seeing
     [Klahr’s] truck graze Ms. Bailey’s leg. Mr. Flaherty, feeling that
     he had witnessed a hit-and-run, asked his girlfriend to get out and
     stay with their daughters and with Ms. Bailey, while he drove after
     [Klahr]. He called 911 and followed [Klahr] for several minutes,
     eventually blocking [Klahr’s] vehicle with his own and alerting a
     police officer in an unmarked SUV. By the end of the incident,

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      when Ms. Kern came over to ask if they were okay, Ms. Bailey and
      her son were crying.

Trial Court Opinion, 11/21/17, at 1-3.

      After a summary hearing, before the Honorable Madelyn S. Fudeman,

Klahr was found guilty of disorderly conduct and ordered to pay a $300.00

fine. This timely appeal follows, in which Klahr presents one issue for our

consideration: “Whether the evidence at trial was insufficient as a matter of

law wherein the Commonwealth’s evidence presented at trial failed to

establish that [Klahr] committed any act(s) which either jeopardized the public

peace, prompted civil unrest, or otherwise arose to a disorderly conduct

offense.” Appellant’s Brief, at 5.

      Pursuant to section 5503, disorderly conduct is defined, in relevant part

as:

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

                                     *    *    *

         (4) creates a hazardous or physically offensive
         condition by any act which serves no legitimate purpose of
         the actor.

18 Pa.C.S. § 5503(a)(4) (emphasis added).          “Public” is defined in section

5503(a)(4) as any place “affecting or likely to affect persons in a place to

which the public or a substantial group has access; among the places included

are highways, transport facilities, schools, prisons, apartment houses, places

of business or amusement, any neighborhood, or any premises which are

open to the public.” Id. at § 5503(c) (emphasis added).

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

v. Hock, 728 A.2d 943, 947 (Pa. 1999)). “It has a specific purpose; it has a

definite objective, it is intended to preserve the public peace.” Id. Our courts

have repeatedly emphasized that the goal of section 5503 is to protect the

public.   See Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008)

(“Certainly, [s]ection 5503 is aimed at protecting the public from certain

enumerated acts.”); Hock, supra at 946 (“The cardinal feature of the crime

of disorderly conduct is public unruliness which can or does lead to tumult and

disorder.”).

 When reviewing a sufficiency of the evidence claim, we consider:

      [W]hether 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. . . . 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.




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Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citation

omitted).

      Instantly, the trial court acknowledges that it “placed considerable

weight on the testimony of a disinterested witness, Michael Flaherty.” Trial

Court Opinion, 11/21/17, at 1. At the summary hearing, Flaherty testified

that he had his window down in the McDonald’s parking lot and heard “a

commotion;” he turned around and “saw a couple arguing.” N.T. Summary

Hearing, 9/6/17, at 20.   Flaherty noticed that Klahr’s and Bailey’s voices got

louder as their argument escalated.     Id. at 22.   Flaherty testified that he

watched the situation in the McDonald’s parking lot unfold between Klahr and

Bailey, observed Klahr videotaping the incident, and watched as Klahr’s truck

pulled off and grazed Bailey’s right leg. Id. at 20. Believing that he had

witnessed a hit-and-run, Flaherty asked his girlfriend to stay with Bailey while

he followed Klahr’s truck for a couple miles, eventually blocking Klahr’s truck,

and calling 9-1-1 about the situation. Id. at 21.

      Bailey testified that Klahr walked around her vehicle videotaping her and

her son for several minutes, despite her protests to stop, which made her feel

uncomfortable and prompted her to call the police. Id. at 15.       Bailey also

testified that when Flaherty’s girlfriend and daughters went to check on her,

both she and her seven-year-old son were crying. Id. at 8.

      Under these circumstances, there was sufficient evidence to prove that

Klahr was guilty of the summary offense of disorderly conduct. He created a

physically offensive condition by arguing loudly, continuing to videotape Bailey

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and her son against her protestations, and hazardously driving off in his truck

and striking Bailey’s leg in the process. Moreover, the altercation occurred in

a public place, a McDonald’s restaurant, with bystanders who were disturbed

by the disruptive situation.   Cf. Hock, supra (defendant’s actions did not

constitute disorderly conduct where defendant uttered single epithet in normal

tone of voice while walking away from an officer, did not alarm or frighten

officer, and there were no bystanders).

      Viewing all of the evidence admitted at trial, in the light most favorable

to the Commonwealth as the verdict winner, there was sufficient evidence to

enable the fact-finder to find every element of disorderly conduct beyond a

reasonable doubt. Bruce, supra.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2018




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