J-S52042-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                    Appellee                 :
           v.                                :
                                             :
MUHAMMAD H. QUDOOS,                          :
                                             :
                    Appellant                :   No. 1983 EDA 2015

                Appeal from the Judgment of Sentence June 9, 2015,
                in the Court of Common Pleas of Philadelphia County,
                   Criminal Division, at No: CP-51-CR-000497-2015

BEFORE:         FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED AUGUST 24, 2016

      Muhammad H. Qudoos (Appellant) appeals from the judgment of

sentence imposed following his conviction for disorderly conduct.       Upon

review, we affirm.

      The trial court summarized the background underlying this case as

follows.

            On August 23, 2014, [Appellant] was arrested and charged
      with disorderly conduct in connection with events that occurred
      at or near 5616 Walnut Street in the City and County of
      Philadelphia.

             [On that date,] Philadelphia Police Officer Eugene Roher
      and his partner, Officer Olesik (first name not given) were on
      routine patrol, in full uniform, in a marked vehicle, when they
      encountered [Appellant] (and other unidentified individuals) on
      the corner of 56th and Walnut Streets. Officer Roher and his
      partner attempted to disperse the crowd from the corner by
      asking everyone to move off the corner. Everyone left the
      corner except for [Appellant] who told the officers that he was
      not on the corner. According to Officer Roher, [Appellant] was
      directly on the corner and refused to move. Since he did not

*Retired Senior Judge assigned to the Superior Court.
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        move from the corner as directed, Officer Roher and his partner
        exited their patrol car to do a pedestrian stop of [Appellant]. As
        the officers approached, [Appellant] started yelling and cursing
        at them. People started to come out of their houses, his friend
        (who had been on the corner with him) returned, [Appellant]
        yelled “record this” to no one in particular, and screamed more
        profanities.   At this point, Officer Roher decided to arrest
        [Appellant] for disorderly conduct. As Officer Roher attempted
        to place him under arrest, [Appellant] began flaring his
        shoulders, tensed his body, and would[ not] allow either officer
        to place the handcuffs on him. [Appellant] continued to yell
        profanities and for someone to record the encounter.[1]
        Eventually [Appellant] allowed the officers to place handcuffs on
        him. [Appellant] did not testify or present additional evidence
        [at trial].

              [Appellant] was convicted of disorderly conduct and was
        sentenced to twelve (12) months of probation. The Defenders
        Association of Philadelphia represented [Appellant] at trial and
        sentencing.

              [Appellant] filed a notice of appeal to the Superior Court.
        On August 21, 2015, this court filed an order requesting
        [Appellant] to file a statement of matters complained of on
        appeal pursuant to Pa. R.A.P. Rule 1925(b). On September 11,
        2015, a statement of errors complained of on appeal was filed on
        behalf of [Appellant]. [The trial court issued its opinion pursuant
        to Pa.R.A.P. 1925(a) on October 7, 2015.]

Trial   Court   Opinion,   10/7/2015,    at   1-2   (footnote   and   unnecessary

capitalization omitted).

        On appeal, Appellant argues that the evidence is insufficient to sustain

his conviction as well as its grading as a third degree misdemeanor as

opposed to a summary offense.

1
  In addition to yelling “record this,” Appellant yelled “Don’t come near me”
and profanities including “Don’t fucking touch me” during the course of the
interaction. N.T., 6/9/2015, at 13-14.


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      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict-winner, are sufficient to establish
      all elements of the offense beyond a reasonable doubt. We may
      not weigh the evidence or substitute our judgment for that of the
      fact-finder. Additionally, the evidence at trial need not preclude
      every possibility of innocence, and the fact-finder is free to
      resolve any doubts regarding a defendant’s guilt 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. When evaluating the credibility and weight of the
      evidence, the fact-finder is free to believe all, part or none of the
      evidence. For purposes of our review under these principles, we
      must review the entire record and consider all of the evidence
      introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(citation omitted).

      Appellant was convicted of violating subsection 5503(a)(1) of the

Crimes Code.

      [That subsection] 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: (1) engages in
      fighting or threatening, or in violent or tumultuous behavior.
      “Tumultuous” is not defined in Section 5503 or elsewhere in the
      Crimes Code. Commonly, “tumultuous” is defined as “marked by
      tumult”; “tending or disposed to cause or incite a tumult”; or
      “marked by violent or overwhelming turbulence or upheaval.”
      “Tumult” is relevantly defined as “a disorderly agitation ... of a
      crowd usu. [sic] with uproar and confusion of voices,” or “a
      violent outburst.”

Commonwealth v. Love, 896 A.2d 1276, 1285 (Pa. Super. 2006) (citations

and some quotation marks omitted).




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      “[W]hether a defendant’s words or acts rise to the level of disorderly

conduct hinges upon whether they cause or unjustifiably risk a public

disturbance. The cardinal feature of the crime of disorderly conduct is public

unruliness which can or does lead to tumult and disorder.” Commonwealth

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

Hock, 728 A.2d 943, 946 (Pa. 1999)) (emphasis omitted).

      The mens rea requirement of [section 5503] demands proof that
      appellant by his actions intentionally or recklessly created a risk
      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. Troy, 832 A.2d 1089, 1094 (Pa. Super. 2003) (internal

quotations and citations omitted).

      Appellant argues that the evidence is insufficient to sustain his

conviction because he did not act with the requisite intent, nor did he

engage   in   fighting,   threatening,   or    violent   or   tumultuous   behavior.

Appellant’s Brief at 9. He maintains that his “statements occurred during a

single, police-initiated interaction, during which [he] walked away from the

police,” and that under the law one may disagree with law enforcement even

when it is through the use of loud, objectionable language that causes a

crowd to form.    Id. at 13, 15.     Appellant also points out that he did not

threaten to harm the police, nor did his statements aid anyone breaking the



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law, and argues that this case constitutes an example of the impermissible

use of the disorderly conduct statute as a “dragnet to punish critical

statements that might breed ferment in the community.” Appellant’s Brief

at 12, 15, 17-18 (relying upon Hock, 728 A.2d at 947).

      The testimony offered at trial demonstrates that during the incident in

question, Appellant refused to listen to the officers’ command to leave the

corner and then proceeded to yell and curse at the officers. N.T., 6/9/2015,

at 11-14.   As a result of Appellant’s actions, approximately 10-15 people

came out of their houses and another individual, who previously had left the

scene in response to the officers’ command “without any problems,”

returned and started to “yell at [Officer Roher] and [his] partner” as well.

Id. at 11-12, 14. As the people were coming out of their houses, Appellant

started to yell “record this” and was cursing at the officers. Id. at 14. As

the officers then attempted to place him into custody, he began to flare his

shoulders, tensed his body up, would not allow the officers to cuff him, and

“kept screaming … trying to get his friends to record what was going on.”

Id. at 15. Eventually, Appellant said that he was “going to let [the officers]

cuff [him]” and “put his hands behind his back.”2 Id.



2
  Officer Roher further testified that he “just wanted to leave the scene. It
was already -- it was already too much going on because that’s where
[Appellant] -- he hangs out and all of his friend are there. So just to get out
of the situation, after we got him into the vehicle, we left.” N.T., 6/9/2015,
at 19.


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      This    evidence,   viewed   in    the   light   most   favorable   to   the

Commonwealth, is sufficient to support Appellant’s conviction for disorderly

conduct in that, at the least, he recklessly created a risk of public

inconvenience, annoyance, or alarm by engaging in tumultuous behavior.3

See Commonwealth v. DeLuca, 597 A.2d 1121 (Pa. 1991) (evidence was

sufficient to establish defendant created a risk of causing public alarm,

annoyance, or inconvenience where DeLuca shouted “Get out of my

f[ucking] way” at an officer after officer requested that he not leave the

scene of a stabbing, where a crowd of 30 to 50 people had gathered, and

then pushed the officer’s hands off his shoulders and stated “Yes I’m

leaving.     Get the f[uck] out of my way” when officer repeated the

instruction); Love, 896 A.2d at 1285 (defining “tumultuous behavior”). Cf.


3
  Appellant contends that the officers’ command to leave the corner was
“unlawful” and that their subsequent interaction with Appellant constituted
an “unlawful[] stop[].” Appellant’s Brief at 9, 12. He cites no authority in
support of those claims. Even assuming the officers’ conduct was unlawful,
however, we agree with the Commonwealth that it is “irrelevant in assessing
his behavior upon reacting to the officers’ presence.” Commonwealth’s Brief
at 12 n.3. See Commonwealth v. Weiss, 490 A.2d 853, 856 n.3 (Pa.
Super. 1985) (“We do note, however, that appellant’s belief (mistaken or
otherwise) in her justification in taunting the police would not vitiate her
recklessness with regard to annoyance or alarm of members of the public in
the vicinity.”); Commonwealth v. Hughes, 410 A.2d 1272, 1274 (Pa.
Super. 1979) (“Appellant’s challenge to the Commonwealth’s proof of intent,
based on her assertion that ‘appellant used obscene language because she
thought she and co-defendant were arrested without cause’ is likewise
without merit. Appellant’s mistaken belief in her justification in taunting the
police does not vitiate her recklessness with regard to annoyance of the
other members of the public in the vicinity.”) (citation omitted).



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Hock, 728 A.2d at 946-47 (concluding that there was no violation of

subsection 5503(a)(1) giving officer probable cause to arrest where “Hock’s

single epithet, uttered in a normal tone of voice while walking away from the

officer, did not alarm or frighten him, and there were no bystanders”).

      Appellant next contends that the evidence was insufficient to support

the grading of the crime as a third-degree misdemeanor as opposed to a

summary offense. Specifically, Appellant alleges that the trial court’s

justification for grading the offense as a third-degree misdemeanor was that

Appellant had yelled for someone to record the interaction,4 which Appellant

argues was improper because his pleas were protected speech, not said with

the intent to cause substantial harm or serious inconvenience, and part of a

constitutionally protected national “political discussion encouraging citizens

to record police activities.” Appellant’s Brief at 18, 20-21.

      A disorderly conduct offense “is a misdemeanor of the third degree if

the intent of the actor is to cause substantial harm or serious inconvenience,

or if he persists in disorderly conduct after reasonable warning or request to

desist. Otherwise disorderly conduct is a summary offense.” 18 Pa.C.S.

§ 5503(b).




4
   Upon review, we agree with the Commonwealth that Appellant
mischaracterizes the trial court’s reasoning and, in any event, conclude that
Appellant is not entitled to relief for the reasons stated herein.


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      As stated above, disorderly conduct is graded as a third-degree

misdemeanor if, inter alia, “the actor … persists in disorderly conduct after

reasonable warning or request to desist.” Here, the following testimony was

offered at Appellant’s trial.

      [Commonwealth]: Did you ask [Appellant] to stop yelling?

      [Officer Roher]: Yes, several times.

      [Commonwealth]: When?

      [Officer Roher]: When we were out on Walnut Street, just
      basically trying to calm the situation down, versus -- take
      something small than making a big deal out of it.

N.T., 6/9/2015, at 16.          This testimony, combined with the testimony

regarding Appellant’s continued yelling throughout the incident, id. at 13-15,

is sufficient to support Appellant’s conviction as a third-degree misdemeanor

when viewed in the light most favorable to the Commonwealth.              See

Commonwealth v. Schwartz, 615 A.2d 350, 361 (Pa. Super. 1992)

(holding that the evidence sufficiently supported a conviction of disorderly

conduct as a third-degree misdemeanor where Schwartz was screaming at

police and another individual and one of the officers testified that he warned

Schwartz to be quiet, but Schwartz persisted in screaming).




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     Appellant has failed to establish that he is entitled to relief.5

Accordingly, we affirm his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/24/2016




5
  To the extent our reasoning in affirming Appellant’s conviction could be
construed as differing from the trial court, we note that “[w]e may … affirm
the trial court’s decision on any valid basis.” Commonwealth v. Janda, 14
A.3d 147, 161 n.8 (Pa. Super. 2011).


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