J-A28035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JUDY MCGRATH A/K/A JO ANN
FONZONE,

                        Appellant                  No. 1716 EDA 2014


         Appeal from the Judgment of Sentence March 19, 2014
          In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-MD-00000061-2013, MC-51-CR-
             00043169-2010, Nos. CP-51-CR-0008156-2013


BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 01, 2015

     Appellant, Judy McGrath a/k/a Jo Ann Fonzone, appeals pro se from

the judgment of sentence entered following her conviction of disorderly

conduct. We affirm.

     We summarize the history of this case as follows. On October 6, 2010,

Appellant attended a Philadelphia Phillies playoff game at Citizens Bank Park

in Philadelphia. During the game, Appellant’s behavior caused a disturbance

in her seating section.   Eventually, a security guard, a supervisor, and

uniformed police were summoned to deal with Appellant.        Appellant was

subsequently removed from her row, taken to the top of the seating section,

and told she could remain at the top of the seating section in the handicap

area if she wanted to remain standing, but that she could not go back to her
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seat.    When Appellant walked away towards her seat, an officer touched

Appellant’s shoulder, and Appellant made a swinging motion at the officer.

Appellant was handcuffed, taken to the police room and then to a holding

cell. While she was in the holding cell, Appellant telephoned 911. Appellant

contended that she suffered injuries from the incident at the hands of the

police. Appellant has characterized herself as the victim in the incident.

        Appellant was charged with the summary offense of disorderly

conduct. In spite of the fact that she had court-appointed counsel, Appellant

filed numerous pro se documents with the trial court. Ultimately, on October

2, 2013, Appellant appeared before the court of common pleas for a de novo

trial. Due to various delays, the trial was completed on March 19, 2014,1

and Appellant was convicted of one count of disorderly conduct.        The trial

court imposed a sentence of credit for time served and a $300.00 suspended

fine.    Appellant then filed this pro se appeal.   Appellant filed a ten-page
____________________________________________


1
    As the trial court explained:

               Trial was held before this Court on two (2) dates, October
        2, 2013 and March 19, 2014.           In the interim, there were
        numerous listings of this matter which addressed issues and
        motions raised by [Appellant] herself.        Due to procedural
        deficiencies, such as the filing of various motions despite having
        counsel of record or delays due to [Appellant’s] request for
        discovery not relevant to the defense of this case, this matter
        languished through the Court system.

Trial Court Opinion, 1/29/15, at 2-3.




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Pa.R.A.P. 1925(b) statement. The trial court has filed a twenty-seven-page

1925(a) opinion.

      Appellant presents the following issues for our review:

      1. WHETHER THERE WAS INSUFFICIENT EVIDENCE FOR THE
      LOWER      COURT’S    DECISION     AND [APPELLANT’S]
      CONSTITUTIONAL RIGHTS WERE VIOLATED THROUGHOUT
      PROSECUTION SINCE OCTOBER 2010 BY PROSECUTORIAL AND
      POLICE MISCONDUCT INCLUDING NEGLIGENT INVESTIGATION
      OF THE INCIDENTS OF OCTOBER 6, 2010[?]

      2. WHETHER THE LOWER COURT ERRED WHEN IT DENIED
      [APPELLANT] A SCHEDULED HEARING ON HER CITIZEN
      CRIMINAL COMPLAINT CP-51-MD-61 AS THE INJURED VICTIM[?]

      3. WHETHER THE LOWER COURT ERRED WHEN IT DISALLOWED
      [APPELLANT] TO REPRESENT HERSELF AND THEREFORE SHE
      HAD DISLOYAL AND INEFFECTIVE DEFENSE COUNSEL PRIOR TO
      AND WHEN SHE WAS NOT CO-REPRESENTING OR SELF-
      REPRESENT[I]NG[?]

Appellant’s Brief at 2.

      As a prefatory matter, we observe that appellate briefs must materially

conform to the briefing requirements set forth in the Pennsylvania Rules of

Appellate Procedure. See Pa.R.A.P. Chapter 21. When a party’s brief fails

to conform to the Rules of Appellate Procedure and the defects are

substantial, an appellate court may, in its discretion, quash or dismiss the

appeal pursuant to Pa.R.A.P. 2101. Id.

      As we have often stated, “Although this Court is willing to liberally

construe materials filed by a pro se litigant, pro se status confers no special

benefit upon the appellant.”    Commonwealth v. Adams, 882 A.2d 496,

498 (Pa. Super. 2005) (citing Commonwealth v. Lyons, 833 A.2d 245,

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252 (Pa. Super. 2003)). “To the contrary, any person choosing to represent

himself in a legal proceeding must, to a reasonable extent, assume that his

lack of expertise and legal training will be his undoing.” Adams, 882 A.2d

at 498 (citing Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super.

1996)).

      While the defects in Appellant’s brief are numerous and warrant

dismissal of the appeal, we decline to do so in this instance. Instantly, with

regard to Appellant’s first issue, we will limit our review to a determination

of whether the Commonwealth presented sufficient evidence to support

Appellant’s conviction of disorderly conduct.

      When reviewing a challenge to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.      Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted).     “Evidence will be deemed

sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

reasonable doubt.”    Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)).       However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. Moreover, this Court may not

substitute its judgment for that of the factfinder, and where the record


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contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the

evidence presented.    Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

      The Pennsylvania Crimes Code defines disorderly conduct, in relevant

part, 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:

           (1) engages in fighting or threatening, or in violent or
      tumultuous behavior;

                                    ***

      (c) Definition.-- As used in this section the word “public”
      means 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.

18 Pa.C.S. § 5503 (emphasis added).

      Our Supreme Court has held that an individual may be convicted of

disorderly conduct “when an offender engages in fighting or threatening, or

in violent or tumultuous behavior in a public arena, even when that conduct

is directed at only one other person.”     Commonwealth v. Fedorek, 946

A.2d 93, 100 (Pa. 2008). With respect to the element of intent for the crime

of disorderly conduct, this Court has stated the following:

      The mens rea requirement of Section 5503 demands proof that
      appellant by her actions intentionally or recklessly created a risk

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      [of causing] or caused a public inconvenience, annoyance or
      alarm. The specific intent requirement of this statute may be
      met by a showing of a reckless disregard of the risk of public
      inconvenience, annoyance, or alarm, even if the appellant’s
      intent was to send a message to a certain individual, rather than
      to cause public inconvenience, annoyance, or alarm.

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

(internal citations and quotations omitted). “Intent can be proven by direct

or circumstantial evidence; it may be inferred from acts or conduct or from

the attendant circumstances.” Commonwealth v. Faulk, 928 A.2d 1061,

1070 (Pa. Super. 2007) (citation omitted).

      In addition, in Commonwealth v. Young, 535 A.2d 1141 (Pa. Super.

1988), this Court held that based upon the statutory definition of “public” in

section 5503(c), a location retains its “public” status even when there are

limitations on access that deny entry to some members of the general

public, as long as a “substantial group” of people are permitted access. Id.

at 1142-1143. In Young, we held that the women’s restroom located in a

coed college dormitory remained “public” despite obvious restrictions on

access, since a substantial group (including women residents and their

female visitors) had access. Id. at 1143. We further noted that while there

were access restrictions to the dormitory itself, i.e., to nonresidents, these

were no different than access restrictions to apartment houses, which are

nevertheless specifically defined in section 5503(c) as “public” for purposes

of the disorderly conduct statute.




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      In addressing the sufficiency of the evidence, the trial court offered the

following analysis after setting forth large portions of the trial transcript:

             In this case, under a totality of the circumstances, the
      evidence was sufficient to establish that [Appellant] intended to
      cause public inconvenience, annoyance or alarm, as required to
      support her conviction for disorderly conduct after having been
      warned by both [a stadium security guard] and a police officer
      that she must sit down when appropriate.             Instead, she
      continued her boisterous behavior, used foul language,
      maintained she could do as she wishe[d] in a loud voice, as she
      flailed her arms around, all under the belief that paying for her
      ticket gives her carte blanche to act in any manner which she
      saw fit. [Appellant’s] actions required repeated intervention by
      Phillies’ staff.  She inconvenienced the fans behind her by
      standing and also in her aisle, as they had to leave their seats to
      permit [the security guard] access to [Appellant] who told him
      [to] “go fuck himself” and then continued her version of cheering
      until she was removed.

            Granted, this action took place at a baseball game where
      cheering, standing, yelling and various noises are to be
      expected, however, it is only appropriate at certain times when
      events occurring during the game warrant the same. [The
      security guard] testified that at the point that he had confronted
      [Appellant], nothing exciting was occurring and the other fans
      around the area were simply seated and were watching the
      game.

            [Appellant’s] actions were not appropriate under the
      circumstances at the time and were unreasonable, annoying and
      served no legitimate purpose and which justified her removal by
      refusing to heed the advice of stadium personnel to follow the
      rules in place. Further, despite being requested to cease acting
      in the manner which required her to be approached in the first
      place, she continued to do so. [Appellant’s] own words that she
      “could do whatever she wants” shows that she believed she was
      free to act in any manner she so chose, even if such actions
      were annoying to those around her. Clearly, such is not the case
      in a public venue such as this.

             The evidence was clearly sufficient to support the verdict
      as it established each material element of the crime charged and

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      the commission thereof by [Appellant] beyond a reasonable
      doubt. Commonwealth v. Aguado, 760 A.2d 1181, 1185
      (Pa.Super.2000) (“[T]he facts and circumstances established by
      the Commonwealth need not be absolutely incompatible with the
      defendant’s innocence”).

Trial Court Opinion, 1/29/15, at 24-26.

      We have thoroughly reviewed the certified record before us on appeal,

and we agree with the trial court’s determination that the Commonwealth

presented sufficient evidence to establish that Appellant committed the

crime of disorderly conduct.       Accordingly, Appellant’s contrary claim lacks

merit.

      In her second issue, Appellant argues that her private criminal

complaint was inappropriately handled by the trial court.                 Essentially,

Appellant claims that, as an injured victim, the trial court erred in denying

her a hearing on her private complaint.

      Pennsylvania     Rule   of   Criminal    Procedure     506    governs    private

complaints and states, in pertinent part, that an application for a private

criminal   complaint    should     be   submitted      to   “an    attorney   for   the

Commonwealth, who shall approve or disapprove it without unreasonable

delay.” Pa.R.Crim.P. 506(A).       If disapproved, “the attorney shall state the

reasons on the complaint form and return it to the affiant.” Pa.R.Crim.P.

506(B)(2).   Furthermore, if the complaint is disapproved, “the affiant may

petition the court of common pleas for review of the decision.”                     Id.

Likewise, this Court has explained            “[i]t   is well-settled that, if the


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Commonwealth disapproves a private criminal complaint, the complainant

can petition the Court of Common Pleas for review, and the trial court must

first correctly identify the nature of the reasons given by the district attorney

for denying the complaint.” In re: Private Criminal Complaint of John

O’Brien Rafferty, 969 A.2d 578, 581 (Pa. Super. 2009). The trial court’s

standard of review is dependent upon the reasons provided by the district

attorney for the disapproval. Commonwealth v. Cooper, 710 A.2d 76, 80

(Pa. Super. 1998).

      Therefore, it is axiomatic that following the denial of a private

complaint, the affiant must take particular steps to appeal the decision of

the district attorney’s office in disapproving the private complaint.          The

affiant cannot attempt to challenge the decision of the district attorney’s

office before the trial court in a separate matter, i.e., criminal proceedings

filed against the affiant. Consequently, we are left to conclude that the trial

court did not err in refusing to indulge Appellant’s attempt to review the

decision of the district attorney regarding her private criminal complaint

during the proceedings pertaining to the instant criminal charges filed

against Appellant. Rather, pursuant to the rules of criminal procedure and

applicable case law, Appellant should have challenged the decision of the

district attorney in a separate proceeding.    Hence, we discern no error on

the part of the trial court and conclude that Appellant’s issue lacks merit.




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      In her final issue, Appellant argues that her previous attorneys were

somehow ineffective in their representation of Appellant.     However, such

claims cannot be addressed in this direct appeal.

      Ineffective assistance of counsel claims are generally deferred to

collateral review proceedings, with the exception of certain circumstances

not present in the instant case.      See Commonwealth v. Arrington, 86

A.3d 831, 856-857 (Pa. 2014) (explaining deferral of ineffective assistance

of counsel claims to collateral proceedings).   To be eligible for such relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9446, a

petitioner must be currently serving a sentence of imprisonment, probation,

or parole. 42 Pa.C.S. § 9543(a)(1)(i). As Appellant is appealing a summary

conviction, for which she was sentenced to pay a fine, we find that she is not

eligible for relief under the PCRA.

      In Commonwealth v. Straub, 936 A.2d 1081 (Pa. Super. 2007), we

held that a defendant convicted of a summary offense and not incarcerated

or placed on probation is not entitled to litigate claims of ineffective

assistance of counsel on direct appeal even though he may not be eligible for

PCRA relief. Id. at 1083. The Straub Court stated the following:

            In light of the [Commonwealth v.] O’Berg[, 880 A.2d
      597 (Pa. 2005)] majority’s express disapproval of the
      jurisprudential “short sentence” exception to [Commonwealth
      v.] Grant[, 813 A.2d 726 (Pa. 2002)], and particularly in light of
      Justice Castille’s cogent, thoughtful and well-reasoned
      concurring opinion in O’Berg, we conclude that, in the case at
      Bar, Appellant’s claims of ineffective assistance of counsel may
      not be reviewed on direct appeal before this Court.

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Id. at 1083-1084. Consequently, the law does not provide Appellant with an

avenue   to   pursue      her   ineffective    assistance   of   counsel   claims.

Commonwealth v. Reigel, 75 A.3d 1284, 1288-1289 (Pa. Super. 2013).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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