J-A26033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

RACHEL LYNN SCHOEN,

                           Appellant                No. 1773 WDA 2017


     Appeal from the Judgment of Sentence Entered October 30, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0006707-2016


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED FEBRUARY 07, 2019

      Appellant, Rachel Lynn Schoen, appeals from the judgment of sentence

of court costs and a fine of $100, imposed after she was convicted, following

a non-jury trial, of public drunkenness and disorderly conduct.      Appellant

challenges the sufficiency of the evidence to sustain her convictions, as well

as the trial court’s denial of her pretrial motion to suppress. After careful

review, we reverse.

      The trial court summarized the facts of Appellant’s case, as follows:

            On October 11, 2015, Sergeant Timothy Harvison (“Sgt.
      Harvison”) and Officer Gregory Laepple (“Officer Laepple”) were
      dispatched at approximately 2:30 a.m. to [Appellant’s] residence
      in response to a neighbor’s complaint of a block party. Upon
      arrival, both Sgt. Harvison and Officer Laepple heard music
      playing while inside their running patrol vehicles. The party
      included as many as fifteen people in the yard on the property.
      Sgt. Harvison and Officer Laepple were met at the front of
      [Appellant’s] house by Thomas Versharen (“Mr. Versharen”),
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     [Appellant’s] boyfriend and co-defendant, where they asked him
     to turn the music down. Sgt. Harvison noticed a strong odor of
     alcohol coming from Mr. Versharen and that Mr. Versharen
     appeared visibly intoxicated. The officers asked Mr. Versharen to
     turn the music down multiple times, but Mr. Versharen was
     argumentative and continued to debate the volume of the music
     with the officers. The officers heard more noise coming from the
     backyard, and Sgt. Harvison proceeded to walk towards the fence.
     At that point, Mr. Versharen put his hand on Sgt. Harvison’s
     shoulder to prevent Sgt. Harvison from going any further. After
     Sgt. Harvison told Mr. Versharen not to touch him, they continued
     to debate the music. Mr. Versharen then went into the gated area
     and closed the gate behind him, refusing to comply with Sgt.
     Harvison’s commands. At that point, Sgt. Harvison notified Mr.
     Versharen that he was going to be placed under arrest.

           Sgt. Harvison then opened the gate and proceeded to arrest
     Mr. Versharen, but Mr. Versharen retreated into the middle of the
     backyard. Sgt. Harvison followed Mr. Versharen into the yard,
     and Officer Laepple followed behind. At that point, both officers
     attempted to place Mr. Versharen in handcuffs, but Mr. Versharen
     resisted. The officers told Mr. Versharen to stop resisting multiple
     times, but Mr. Versharen continued not to comply with their
     commands.

           While continuing to place Mr. Versharen in custody, Officer
     Laepple noticed [Appellant] coming from the right and toward Sgt.
     Harvison. Sgt. Harvison testified that [Appellant] jumped on his
     back three different times while attempting to place Mr. Versharen
     under arrest. The third time occurred while Sgt. Harvison was
     pointing his Taser at Mr. Versharen. At that point, Sgt. Harvison
     took [Appellant] to the ground. Sgt. Harvison testified that there
     was a strong odor of alcohol coming from [Appellant] as he and
     Officer Laepple were escorting her to the patrol car. After being
     placed in handcuffs, [Appellant] was yelling and screaming in a
     place where neighboring houses were close together. [Appellant]
     continued screaming even while inside the police station until she
     passed out.

Trial Court Opinion (TCO), 3/9/18, at 2-4.

     Appellant was charged with obstructing the administration of law or

other government functions, disorderly conduct, harassment, and public


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drunkenness. Prior to trial, she filed a motion to suppress, challenging the

legality of the officers’ entering her property and her subsequent arrest.

Following a hearing, the court denied that motion. Appellant’s case proceeded

to a non-jury trial, at the close of which the court convicted Appellant of

disorderly conduct and public drunkenness, but acquitted her of the other

charges. On October 30, 2017, the court sentenced Appellant to pay summary

court costs and a fine of $100.

      Appellant filed a timely post-sentence motion, which the court denied.

She then filed a timely notice of appeal, and she also timely complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed a responsive opinion on March 9,

2018. Herein, Appellant presents three questions for our review:

      I.     Whether the evidence was insufficient to support
             [Appellant’s] conviction for public drunkenness where the
             Commonwealth failed to prove (i) that she appeared in any
             public place and (ii) that she was manifestly under the
             influence of alcohol or a controlled substance to such a
             degree that she might endanger herself or others or
             property or annoy people nearby?

      II.    Whether the evidence was insufficient to support
             [Appellant’s] conviction for disorderly conduct where the
             Commonwealth failed to prove (i) that she created a
             hazardous or physically offensive condition and (ii) that she
             took any action with the intent to cause public
             inconvenience, annoyance or alarm or recklessly created the
             risk of the same?

      III.   Whether the trial court erred in denying [Appellant’s]
             omnibus pre-trial motion seeking the suppression of
             evidence and dismissal of charges where law enforcement
             entered her property in violation of her rights secured by
             the Fourth and Fourteenth Amendments to the United

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            States Constitution, and/or Article I, Section 8 of the
            Pennsylvania Constitution?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      In Appellant’s first two issues, she challenges the sufficiency of the

evidence to sustain her convictions.

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      First, we address Appellant’s public drunkenness conviction.          That

offense is defined, in pertinent part, as follows:

      A person is guilty of a summary offense if he appears in any public
      place manifestly under the influence of alcohol or a controlled
      substance, as defined in the act of April 14, 1972 (P.L. 233, No.
      64), known as The Controlled Substance, Drug, Device and
      Cosmetic Act, except those taken pursuant to the lawful order of
      a practitioner, as defined in The Controlled Substance, Drug,
      Device and Cosmetic Act, to the degree that he may endanger
      himself or other persons or property, or annoy persons in his
      vicinity.

18 Pa.C.S. § 5505 (footnote omitted).

      Here, Appellant argues that the Commonwealth’s evidence failed to

demonstrate that she appeared in a public place, as she was in her privately-

owned backyard, and she only exited the yard when forced to do so by the



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police. Notably, the Commonwealth concedes that the cases relied upon by

Appellant - discussed infra - “support her argument that a fenced backyard

does not qualify as a ‘public place’ under the circumstances of this case.”

Commonwealth’s Brief at 12. We agree.

      As Appellant recognizes, section 5505 does not define ‘public place.’

However, this Court has observed that the term has been defined in two other

provisions of the Crimes Code. See Commonwealth v. Meyer, 431 A.2d

287, 289 (Pa. Super. 1981). First, 18 Pa.C.S. § 5902 (Prostitution and related

offenses) defines “public place” as “[a]ny place to which the public or any

substantial group thereof has access.” Second, 18 Pa.C.S. § 5503 (Disorderly

conduct) states:

      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(c).

      In support of her argument that she did not ‘appear in a public place,’

Appellant relies on several cases, including Commonwealth v. Biagini, 655

A.2d 492 (Pa. 1995). There, our Supreme Court determined that there was

no probable cause to arrest Biagini for public drunkenness where he “was

allegedly intoxicated in his home and on his porch….” Biagini, 655 A.2d at

495. Despite that Biagini was screaming loudly enough in the rear of his home

for a patrolling officer out front to hear him, the Court concluded that because


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Biagini was on his own private property, he “had not ‘appeared in any public

place manifestly under the influence of alcohol….’” Biagini, 655 A.2d at 495

(citation omitted; emphasis added).

       In Meyer — another case on which Appellant relies — Meyer was

escorted by police from a private club and arrested outside for public

drunkenness. Meyer, 431 A.2d at 288. This Court concluded that the club

was not a ‘public place’ as contemplated by the public drunkenness statute,

as “the public at large” did not have the right to enter the club or use its

facilities.   Id. at 289.   We also held that, “to be found guilty of public

drunkenness, the accused must be in the ‘public place’ voluntarily.” Id. at

290. Thus, although Meyer had been arrested outside the club, his conviction

for public drunkenness could not stand because he had been escorted outside

by police. Id.

       Like the facts of Biagini, Appellant was present on her own private

property when police responded to the noise complaint.          The altercation

between Appellant and Sergeant Harvison also occurred in her backyard.

While Appellant yelled and screamed after the police removed her from her

property and took her to the police station, she was clearly not in those public

places voluntarily.

       The trial court erroneously relies on Commonwealth v. Whritenour,

751 A.2d 687 (Pa. Super. 2000), to support its conclusion that Appellant’s

public drunkenness conviction can stand. In Whritenour, we held that a road

in a gated neighborhood was ‘public’ because the road “was traversed by

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members of the community and their invitees or licensees.” Id. at 688. Here,

however, Appellant convincingly argues that her “backyard is not akin to a

community-owned road. It is her private property, which belongs absolutely

to her and is closed to the community.” Appellant’s Brief at 18. Therefore,

Whritenour is distinguishable. We also conclude that the court’s reliance on

Commonwealth v. Fedorek, 946 A.2d 93 (Pa. 2008), is unconvincing, as

that case addressed only the requirements for sustaining a conviction for

disorderly conduct graded as a misdemeanor of the third-degree, not the

elements of the offense of public drunkenness.

       In sum, we agree with Appellant that her conviction for public

drunkenness cannot stand, as the evidence failed to demonstrate that she

‘appeared in a public place’ while intoxicated.    Therefore, we reverse her

conviction for that offense.1

       In Appellant’s second issue, she challenges the sufficiency of the

evidence to support her disorderly conduct conviction under section

5503(a)(4):

       (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 Given this disposition, we need not address Appellant’s argument that she
was not intoxicated to the degree required to sustain her public drunkenness
conviction.




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          (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).2

       “We have defined the relevant terms of subsection(a)(4) as follows: A

‘hazardous condition’ is a condition that involves danger or risk, particularly

of injuries resulting from public disorders.” Commonwealth v. N.M.C., 172

A.3d 1146, 1150 (Pa. Super. 2017) (citation, quotation marks, and brackets

omitted). “Although a precise definition of ‘physically offensive condition’ is

elusive, this term encompasses direct assaults on the physical senses of

members of the public.” Id. (citation omitted).

       In this case, the Commonwealth contends that Appellant’s act of

jumping on Sergeant Harvison’s back created a hazardous or physically

offensive condition constituting disorderly conduct under section 5503(a)(4).

Appellant, however, argues that her conviction cannot stand because,


____________________________________________


2 The Commonwealth notes that it is unclear under “exactly which subsection
of 18 Pa.C.S.[] §[]5503 [A]ppellant was convicted….” Commonwealth’s Brief
at 17. Appellant was charged with violating section 5503(a)(1), but the
sentencing order stated that she was convicted of violating section
5503(a)(4). The Commonwealth acknowledges that, “the signed sentencing
order takes precedence over oral statements of the sentencing court not
incorporated into that order.”        Commonwealth’s Brief at 20 (quoting
Commonwealth v. Kubiac, 550 A.2d 219, 229 (Pa. Super. 1988). Thus, the
Commonwealth “assumes that [A]ppellant was convicted of violating
subsection (a)(4).” Id. at 20. However, in the trial court’s opinion, it suggests
that Appellant was convicted of disorderly conduct under subsection (a)(2).
In her reply brief, Appellant objects to the court’s analysis, stressing that she
was not charged with an offense under that provision. Appellant’s Reply Brief
at 7. Therefore, Appellant offers argument only pertaining to subpart (a)(4).
Given the parties’ positions, and the record in this case, we will only analyze
the sufficiency of the evidence under subpart (a)(4).

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      the evidence does not reveal that [she] possessed the necessary
      mens rea for disorderly conduct. “The mens rea requirement of
      this statute demands proof that [a defendant] by his actions
      intentionally or recklessly created a risk or caused a public
      inconvenience, annoyance, or alarm.”         Commonwealth v.
      Gilbert, 674 A.2d 284, 286 (Pa. Super. [] 1996). Recklessness
      under the statute denotes a “conscious disregard of a substantial
      and unjustifiable risk that public annoyance or alarm would result
      from her conduct, or a gross deviation from the standard of
      conduct that a reasonable person would observe in her situation.”
      Commonwealth v. Weiss, 490 A.2d 853, 857 (Pa. Super. []
      1985).

Appellant’s Brief at 23-24.

      Appellant relies on this Court’s decision in Weiss, arguing that it is

analogous to her case.    There, the evidence demonstrated that Weiss was

inside her home at 11:00 p.m. when a police officer broke open her locked

door, entered the home, and arrested Weiss’s husband. Weiss, 490 A.2d at

853-54. During the one-minute-long incident, Weiss “started to yell and use

various obscenities, telling the officer to get out of her house and off her

property.” Id. at 854. In reversing Weiss’s conviction for disorderly conduct

based on these facts, we concluded that her conduct did not demonstrate an

intent to cause public inconvenience, annoyance, or alarm. Id. at 857. We

stressed that, “[a]ll of [the] appellant’s complaints … involved the breaking

and entering of her home[,]” and “[a]t all relevant times, [the] appellant was

inside her home in the vicinity of the doorway through which [the] [o]fficer …

had entered.” Id. (emphasis in original).

      Appellant contends that here, as in Weiss, her conduct occurred on her

private property and “[n]othing in the record suggests that [she] intended to



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cause public annoyance or alarm or recklessly created a risk of such

annoyance or alarm.”     Appellant’s Brief at 25 (emphasis in original).       We

agree. While Appellant was not inside her home, she was inside her fenced-

in backyard when she jumped on Sergeant Harvison’s back. As in Weiss,

nothing in the record demonstrates that Appellant intended to cause alarm or

annoyance to the public; rather, the evidence established that she jumped on

Sergeant Harvison in order to impede the officer’s arrest of her boyfriend.

Moreover, Appellant cannot be said to have recklessly created a risk of public

alarm where nothing in the record demonstrates that the public could see into

her yard to observe her conduct toward the sergeant.

      We also find Commonwealth v. Mauz, 122 A.3d 1039, 1041 (Pa.

Super. 2015), to be instructive in this case. There, the

      [a]ppellant was in his yard when he shouted … obscene remarks
      to [the victim], who was in her yard at the time with her boyfriend
      and several other people. A five or six foot high fence separated
      the two properties. The record does not reflect that anyone other
      than [the victim] heard [the] [a]ppellant’s remarks, nor does the
      record reflect that [the] [a]ppellant’s remarks could have reached
      anyone not present in the yard of [the victim] or [the] [a]ppellant.

Id. at 1042 (internal citations to the record omitted). Based on these facts,

our Court held that,

      [s]ince both the speaker and the recipient of the offensive remarks
      were present in respective yards, we believe the evidence is
      insufficient to establish that [the] [a]ppellant acted with the intent
      to cause public annoyance, inconvenience or alarm. We cannot
      conclude [the] [a]ppellant acted with the intent to create public
      annoyance when he made his offensive remarks in a private
      setting and the remarks apparently were discernible only to [the
      victim].


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Id. 1042-43. We stressed that,

      “[t]he 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, 556 Pa.
      409, 728 A.2d 943, 947 (1999)). “It has a specific purpose; it has
      a definite objective, it is intended to preserve the public peace.”
      Id. (emphasis added). Indeed, our courts have repeatedly
      emphasized that the goal of § 5503 is to protect the public.
      Commonwealth v. Fedorek, 596 Pa. 475, 946 A.2d 93, 100
      (2008) (“Certainly, Section 5503 is aimed at protecting the public
      from certain enumerated acts.”); Hock, 728 A.2d at 946 (“The
      cardinal feature of the crime of disorderly conduct is public
      unruliness which can or does lead to tumult and disorder.”).

Id. at 1041.

      Here, as in Mauz, Appellant was in her private, fenced-in backyard when

she jumped on Sergeant Harvison. There was no evidence that she intended

the public to even see this act, let alone be inconvenienced, annoyed, or

alarmed by it. Therefore, we conclude that the evidence was insufficient to

sustain Appellant’s conviction of disorderly conduct under section 5503(a)(4).

Accordingly, we reverse her judgment of sentence for that offense, as well as

for public drunkenness.      Given this disposition, we need not address

Appellant’s third issue challenging the court’s denial of her pretrial motion to

suppress.

      Judgment of sentence reversed. Jurisdiction relinquished.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/7/2019




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