J-A11030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

RANDOLPH W. EMERY, JR.

                        Appellant                     No. 3227 EDA 2014


        Appeal from the Judgment of Sentence of September 24, 2014
           In the Court of Common Pleas of Northampton County
             Criminal Division at No.: CP-48-SA-0000179-2014


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                         FILED SEPTEMBER 03, 2015

     Randolph Emery appeals the September 24, 2014 judgment of

sentence, which was imposed after Emery was found guilty of disorderly

conduct—unreasonable noise, 18 Pa.C.S. § 5503(a)(2), following a de novo

summary trial.     Finding that the evidence presented at trial by the

Commonwealth was insufficient as a matter of law to sustain the conviction,

we vacate Emery’s judgment of sentence.

     The events leading up to Emery’s conviction occurred on Kuder Road,

where    Emery   resides,   in   the   Borough   of   Bath,   Moore   Township,

Pennsylvania. On Sunday, March 16, 2014, Eleanor Cary, whose residence

is located approximately four hundred feet from Emery’s home, was startled

out of bed at around 7:55 a.m. by the repeated revving of the engine in

Emery’s pick-up truck. According to Ms. Cary, Emery revved the engine for
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ten minutes, and then stopped. Ten minutes later, Emery resumed revving

the engine for another ten minutes. The noise coming from the engine was

extremely loud, which frightened her to such a degree that her body was

shaking.    Cary was certain that the noise was coming from Emery’s

residence, because she had observed Emery driving the truck and had heard

him on many other occasions revving the engine. However, Cary did not see

Emery in or near the truck that morning.

      Richard Brown lives directly across the street from Emery, and has

since the mid-1970s. On that Sunday morning, he was sitting in his living

room drinking coffee with his girlfriend, when he heard Emery’s engine

revving on-and-off for ten to twenty minutes. Brown found the noise to be

annoying. Like Cary, Brown did not see Emery operating the pick-up truck,

but was certain that the noise was coming from Emery’s truck.

      Eventually, Cary contacted the Moore Township Police and complained

about the noise. Officer Thomas Roberts responded to the call and met with

Emery. Emery insisted to Officer Roberts that he was merely operating his

truck on his property with no sinister motives or intent.           The truck was

turned off when Officer Roberts arrived, and he did not observe Emery inside

the vehicle at any point. Officer Roberts did not investigate the vehicle to

determine      whether   the   exhaust   system   complied   with    Pennsylvania

regulations.

      At trial, Emery admitted that he owns the truck, which is a 1987

Chevrolet. Emery noted that the truck had passed Pennsylvania inspections

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and emissions tests, and had compliant exhaust and muffler systems. On

the day in question, which Emery believed to be a Saturday and not a

Sunday, Emery asserted that he was simply warming his truck up for usage

later that day, which he believed was necessary due to the age of the truck.

      On September, 24, 2014, the trial court, hearing the matter de novo

on summary appeal, found Emery guilty of disorderly conduct—unreasonable

noise, and fined him $150.00. The trial court did not inform Emery of his

right to file a notice of appeal, nor of the time frame within which Emery was

required to file any such notice.     On October 3, 2014, Emery filed a

“Consolidated Motion and Memorandum Of Law for Reconsideration and

Extraordinary Relief.” On October 10, 2014, the trial court held a hearing on

the motion, and denied Emery’s motion at the conclusion thereof.

      On November 6, 2014, Emery filed a notice of appeal. On November

7, 2014, the trial court directed Emery to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On November 24,

2014, Emery timely complied. On December 30, 2014, the trial court issued

an opinion pursuant to Pa.R.A.P. 1925(a).

      While the Rule 1925 process was proceeding, this Court entered an

order on December 11, 2014, requiring Emery to show cause as to why this

appeal should not be quashed as untimely. We noted that Emery’s appeal,

which was filed on November 6, 2014, was filed more than thirty days after

the imposition of the judgment of sentence. We also noted for Emery that,

pursuant to Pa.R.Crim.P. 720(D), post-sentence motions are not permitted

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in summary cases. Emery initially filed a statement of cause with this Court.

However, he later withdrew that statement, and filed an amended statement

of cause.    In his amended statement of cause, Emery maintained that his

appeal, although untimely, nonetheless should be considered timely because

the trial court failed to inform him of his appellate rights and time

constraints. On February 26, 2015, the Commonwealth submitted a letter to

this Court in which it conceded that the trial court’s failure to advise Emery

of his appellate rights constituted a breakdown in the court system and that

Emery’s notice of appeal should be considered timely. On January 23, 2015,

before the Commonwealth conceded that Emery’s appeal should be

considered timely, we entered a second order deferring resolution of the

issue to this panel.

      Emery raises the following three issues for our consideration:

      I.     Did the Commonwealth present insufficient evidence at
             trial to support [Emery’s] disorderly conduct conviction
             when no Commonwealth witness saw [Emery] operate his
             vehicle and using one’s vehicle is not conduct which is
             disorderly or disturbing to the peace of the community?

      II.    Was [Emery’s] conviction against the weight of the
             evidence presented at trial?

      III.   Should [Emery’s] appeal be decided on the merits because
             he was not advised by the trial court of his appeal rights
             and was not advised of the requirement that his notice of
             appeal be filed within 30 days regardless of the filing of
             post-sentence motions?

Brief for Emery at 5.




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      We begin with Emery’s third issue, because if this appeal is untimely,

we would not have jurisdiction to rule on the merits of the appeal. However,

we agree with Emery and the Commonwealth that the appeal must be

considered timely.   In Commonwealth v. Patterson, 90 A.2d 493 (Pa.

Super. 2007), we explained a trial court’s responsibilities at sentencing with

regards to post-sentence rights, and the consequences for failing to abide by

those obligations, as follows:

      Generally, an appellate court cannot extend the time for filing an
      appeal. Commonwealth v. Braykovich, 664 A.2d 133, 136
      (Pa. Super. 1995) (citing Pa.R.A.P. 105(b)); Commonwealth v.
      Smith, 501 A.2d 273, 275 (Pa. Super. 1985) (stating “[a] court
      may not enlarge the time for filing a notice of appeal as a matter
      of grace or indulgence”). Nonetheless, this general rule does not
      affect the power of the courts to grant relief in the case of fraud
      or breakdown in the processes of the court. See Braykovich,
      supra at 136 (citing Pa.R.A.P. 105, Explanatory Note); Smith,
      supra at 275. Thus, before our Court may quash [an untimely]
      appeal, we must determine whether an administrative
      breakdown in the court system excuses the untimely filing of the
      notice of appeal.

      The courts of this Commonwealth have held that a court
      breakdown occurred in instances where the trial court, at the
      time of sentencing, either failed to advise [an a]ppellant of his
      post-sentence and appellate rights or misadvised him. See
      Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super.
      2001); Commonwealth v. Bogden, 528 A.2d 168, 170 (Pa.
      Super. 1987); Commonwealth v. Hurst, 532 A.2d 865, 867
      (Pa. Super. 1987); Commonwealth v. Katz, 464 A.2d 1343,
      1345-1346 (Pa. Super. 1983). We have also found a breakdown
      where the clerk of courts did not enter an order notifying the
      appellant that his post-sentence motion was denied by the
      operation of law. See Commonwealth v. Perry, 820 A.2d 734,
      735 (Pa. Super. 2003); Braykovich, supra. In each of the
      aforementioned instances, the “breakdown” occurred when the
      trial court or the clerk of courts departed from the obligations


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      specified in current Rules 704 and 720 of the Pennsylvania Rules
      of Criminal Procedure.

      Rule 704(C)(3)(a) states that, at the time of sentencing, “[t]he
      judge shall determine on the record that the defendant has been
      advised . . . “, inter alia, “of the right to file a post-sentence
      motion and to appeal, . . . [and] of the time within which the
      defendant must exercise those rights.”                Pa.R.Crim.P.
      704(C)(3)(a) (emphasis added). The Comment to this Rule
      provides that “[t]his rule is intended to promote . . . fair
      sentencing procedures . . . by requiring that the defendant be
      fully informed of his or her post-sentence rights and the
      procedural requirements which must be met to preserve those
      rights.”    Pa.R.Crim.P. 704, Comment.          Furthermore, Rule
      720(B)(4)(a) states that “[a]n order denying a post-sentence
      motion, whether issued by the judge . . . or entered by the clerk
      of courts . . . , shall include notice to the defendant of”, inter
      alia, “the right to appeal and the time limits in which the appeal
      must be filed.” Pa.R.Crim.P. 720(B)(4)(a) (emphasis added).
      “This requirement ensures adequate notice to the . . .
      [appellant], which is important given the potential time lapse
      between the notice provided at sentencing and the resolution of
      the post-sentence motion.”            Pa.R.Crim.P. 720(B)(4)(a),
      Comment.

Patterson, 940 A.2d at 498-99 (citations modified). We have reviewed the

record and have confirmed that the trial court did not advise Emery of his

appellate rights. Thus, in light of the principles set forth in Patterson, there

was a breakdown in the court system, and we must consider this otherwise

untimely appeal to be timely.

      We now turn to Emery’s challenge to the sufficiency of the evidence.

Our standard of review governing sufficiency challenges is well-settled. We

must determine:

      whether[,] viewing all the evidence admitted at trial in the light
      most favorable to the [Commonwealth as the] verdict winner,
      there is sufficient evidence to enable the fact-finder to find every


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      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.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003) (citations

omitted).

      Emery was convicted of disorderly conduct—unreasonable noise, which

is set forth, in pertinent part, in our Crimes Code as follows:

      (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(a)(2).       Emery now contends that the evidence was

insufficient at trial to prove him guilty of this crime because the noise that

he created was not unreasonable and because the record is devoid of any

evidence that he acted intentionally or recklessly.       We need not decide

whether the noise was unreasonable, because we agree with Emery that the

Commonwealth failed to demonstrate that he acted with either of the

requisite mental states necessary to establish the crime of disorderly

conduct.

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         The evidence presented a trial, in the light most favorable to the

Commonwealth, demonstrates the following.       Between approximately 7:30

a.m. and 8:00 a.m. on a Sunday morning in March, Emery turned on his

truck and revved the engine.     He apparently did so for approximately ten

minutes. After about ten minutes of relative quiet, Emery once again revved

the engine for another ten minutes. The engine was loud and, when revved,

even louder. Notably, the Commonwealth did not present any evidence to

demonstrate that the noise emanating from the truck was somehow louder

than that of an average vehicle, or that the truck was modified in some way

to make the noise louder than what normally comes from a truck of that size

and age.

         Cary was startled awake in her bedroom, and was scared by the loud

noise.     Brown clearly heard the noise from his home, and described the

noise as annoying. When asked by Officer Roberts about the noise, Emery

stated only that he was operating his truck on his private property.

         “Under the statute[,] the Commonwealth must prove the intent of the

actor.” Commonwealth v. Gilbert, 674 A.2d 284, 286 (Pa. Super. 1996).

As is evident, the Commonwealth introduced no evidence, nor did the

Commonwealth make any specific arguments at trial, pertaining to Emery’s

intent on the morning in question. Indeed, the body of evidence presented

at trial demonstrated only that Emery revved his engine shortly before 8:00

a.m. on a Sunday morning. There is no evidence, aside from Emery’s own

statement, elucidating the purpose for his actions.     The record does not

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disclose any motive, or even the slightest suggestion that Emery revved his

engine on that morning with the purpose of causing a public inconvenience,

annoyance, or alarm.    The facts that Emery’s actions alarmed Cary and

annoyed Brown are of no moment.        See id. at 286 (holding that intent

cannot be inferred from the existence of actual annoyance.). The same can

be said for the alternative mens rea of recklessness.   The Commonwealth

offered no evidence, and made no argument, that Emery acted recklessly.

Again, all that was proven was the bare fact that Emery revved the truck at

around 8:00 a.m. on a Sunday.

     “The offense of disorderly conduct is not intended as a catchall for

every act which annoys or disrupts people.” Commonwealth v. Hock, 728

A.2d 943, 946 (Pa. 1999). It is clear in this case that the charge was used

for that exact purpose, to punish Emery for behavior that two of his

neighbors found annoying.     There is nothing inherently unlawful about

revving an engine. On the other hand, it is undeniable that doing so earlier

than people would like may be disruptive and annoying.         But, without

evidence that Emery revved his engine intentionally (or recklessly) to cause

inconvenience, annoyance, or alarm to others, the Crimes Code cannot serve

as a mechanism to punish an annoying neighbor.

     We make this point because it appears from the record that many

other residents of the neighborhood appeared at Emery’s trial, apparently in

a show of solidarity against Emery.   The trial court recognized that these

residents of the community were there, and that they were there to see

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Emery punished. The trial court then encouraged them to stay and observe

as the trial court imposed the conviction for which they were hoping.

Indeed, the trial court made the following remarks towards the end of

Emery’s trial:

      THE COURT: I’m just curious. Whoever is involved in this case
      or affected by this would you please stand? Okay. All right. Is
      there anyone left in Moore Township or are you all here. All
      right. Please have a seat.

                               *     *      *

      THE COURT: All right. Would everyone who is affected by this
      case please remain. We’re going to have a decision in about 15,
      20 minutes. It is not going to take a long time, all right? We’re
      just going to do some research.

                               *     *      *

      THE COURT: People here from Moore Township I want them to
      stay.

                               *     *      *

      THE COURT: It is clear to me that there is something going on
      here that is not being said to me because this is not making
      sense that all these people would show up here and you would
      hire probably one of the best lawyers in Northampton County to
      represent you on this charge and do the kind of job he’s doing as
      if he’s representing someone in a homicide case over a
      disorderly conduct so something is happening here. I’m not sure
      what it is that is causing you and your neighbors to come to this
      point. But I will tell you I’ve been doing this job for about 11
      years. Before that I was a lawyer for 20 years. And I had a
      very similar case in Moore Township and the case ended up and
      I believe [defense counsel] was working for me at the time,
      ended up in shooting among neighbors. . . . So this is a very
      dangerous situation.      I think these neighborhood disputes
      sometimes are given short testimony by everybody but when
      you have to see the person that you hate every day when you go
      home it only makes—elevates the tensions for everybody. At



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      least when you are married to a person you get divorced, you
      move out. But until you sell your house you are stuck there.

Notes of Testimony, 9/24/2014, at 61-65.         Defense counsel expressed

concern that six non-witness residents of Moore Township had appeared in

the courtroom trial to observe the proceedings. The trial judge responded

by insisting that he did not consider the presence of these persons as a

factor in finding Emery guilty.

      It is unclear whether the unrelated individuals who appeared at

Emery’s trial in fact hated him, as the trial court suggested. It is even less

clear that this is a situation that posed the danger to which the trial court

referred. What is clear is that neither the presence of these people, nor the

potential danger that could arise from neighborhood disputes, evinces a

scintilla of evidence concerning Emery’s intent. That citizens showed up to

observe a trial (as is their right) in no way proves that Emery intended to

cause any disruptions on the morning in question.       As much as Emery’s

neighbors may have disliked him, and to the extent that they were there to

see him convicted, the record remains the same, and it remains insufficient

on its face to prove Emery guilty of a crime. We simply cannot infer either

of the relevant mental states from the feelings that Emery’s actions

engendered in his neighbors, and our ability to do so certainly is not

enhanced by the fact that the courtroom was filled with people from the

neighborhood who wanted to see Emery convicted.




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      The trial judge insisted that he did not consider the presence of these

persons, nor their apparent animosity toward Emery, in finding Emery guilty.

We will take the trial judge’s word for it, but not without observing that his

words and actions could have suggested otherwise.

      In this case, the Commonwealth failed to prove that Emery acted with

either of the mens rea elements required by the disorderly conduct statute.

Consequently, his conviction and judgment of sentence must be vacated.

Emery is discharged. In light of our disposition, we need not consider any of

Emery’s other arguments.

      Judgment of sentence vacated. Jurisdiction relinquished.

      President Judge Emeritus Ford Elliott joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/2015




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