J-S60026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

KRISTI L. NEVEL

                            Appellant                No. 90 MDA 2014


               Appeal from the Order dated December 16, 2013
         In the Court of Common Pleas of Montour/Columbia Counties
       Montour County Criminal Division at No: CP-47-SA-0000003-2013


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 04, 2014

        Appellant, Kristi L. Nevel, appeals from the December 16, 2013 order

entered on January 9, 2014 in the Court of Common Pleas of Montour

County dismissing Appellant’s summary appeal and finding her guilty of

disorderly conduct.1 Following review of Appellant’s sufficiency of evidence

challenge, we affirm.

        On September 23, 2013, Appellant was cited for disorderly conduct

under 18 Pa.C.S.A. § 5503, which provides, in relevant part: “A person is

guilty of disorderly conduct if, with intent to cause public inconvenience,

annoyance or alarm, or recklessly creating a risk thereof, [s]he: . . . (4)

creates a hazardous or physically offensive condition by any act which
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1
    18 Pa.C.S.A. § 5503(a)(4).
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serves no legitimate purpose of the actor.” 18 Pa.C.S.A. § 5503(a)(4). For

purposes of § 5503, “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, . . . any neighborhood, or any

premises which are open to the public. 18 Pa.C.S.A. § 5503(c).

      Appellant filed a notice of summary appeal and a hearing was

conducted on December 16, 2013.          The prosecution’s sole witness was

Corporal Chad Thomas, the citing officer.      Appellant testified on her own

behalf.   No other witnesses testified.     The trial judge summarized the

evidence and announced his credibility determinations as follows:

      At the hearing on December 16, 2013, the Commonwealth called
      Cpl. Chad Thomas, the citing officer. Cpl. Thomas testified that,
      on September 23, 2013, he was dispatched to 1333 Bloom Road
      in Mahoning Township, Montour County, PA. There was a report
      of two (2) people arguing loudly outside in the driveway of the
      home. The argument was regarding a property dispute following
      the separation of [Appellant] and her estranged husband. It was
      [Appellant] who initiated the call to the Police Department. Cpl.
      Thomas testified that, when he arrived on scene, he advised the
      parties that he would not intervene in a civil domestic dispute
      over property, but that, if there was a confrontation that
      escalated, then both parties would probably be arrested. That
      conversation occurred prior to 8:00 a.m.

      After the first dispatch, Cpl. Thomas was dispatched again
      regarding a “loud argument.” When he arrived, both parties
      were located in the driveway outside the residence and he was
      able to see that they were “still verbally battling back and forth .
      . . .” When Cpl. Thomas arrived after the second dispatch, he
      could hear the parties arguing and the volume was loud enough
      to wake the neighbors and for them to call 911. The neighbors
      were the parties who called the second time. Cpl. Thomas
      testified that he “heard them yelling back and forth at each other
      . . . .”, but could not tell verbatim what was being said.

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       After the Commonwealth rested, [Appellant] was called to
       testify. She contradicted Cpl. Thomas and testified that, when
       Cpl. Thomas arrived after his second dispatch, she was not
       located in the driveway as Cpl. Thomas had recollected. Rather,
       [Appellant] testified that she was in her kitchen.

       The testimony of Cpl. Thomas is hereby accepted as credible,
       including his testimony that there was a very loud volume in the
       driveway, and that both [Appellant] and her estranged husband
       were engaging in the loud argument, which was loud enough to
       disturb the neighbors at an early morning hour.

Trial Court Opinion (“T.C.O.”), 5/13/14, at 1-2 (references to Notes of

Testimony omitted).

       Appellant filed a timely notice of appeal and presents one issue for this

Court’s consideration:

          The trial court erred as a matter of law and/or abused its
          discretion in finding [Appellant] guilty of disorderly conduct,
          18 Pa.C.S.A. § 5503(a)(4), as the facts of the case, even
          interpreted in the best light to the Commonwealth, do not
          amount to a physically offensive or hazardous condition nor
          did this amount to a public inconvenience.

Appellant’s Brief at 4.2

       This Court has explained the applicable standard of review as follows:
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2
  “In order to preserve a challenge to the sufficiency of the evidence on
appeal, an appellant's Rule 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013).     Appellant complied with that directive, stating in her 1925(b)
statement that the Commonwealth failed to “produce[] sufficient evidence
that [Appellant] created [a] hazardous or physically offensive condition” and
“never provided evidence that the alleged crime occurred with intent to
cause public inconvenience.” Appellant’s 1925(b) Statement of Matters
Complained of on Appeal, 1/29/14, at ¶¶ 2, 3. Appellant presents those
same two claims of insufficiency in the brief filed with this Court.



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      “The standard we apply in reviewing the sufficiency of the
      evidence is whether 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.”           Commonwealth v.
      O’Brien, 939 A.2d 912, 913 (Pa. Super. 2007). “Any doubts
      concerning an appellant’s guilt are to be resolved by the trier of
      fact unless the evidence was so weak and inconclusive that no
      probability of fact could be drawn therefrom.” Commonwealth
      v. West, 937 A.2d 516, 523 (Pa. Super. 2007). “The trier of
      fact while passing upon credibility of witnesses . . . is free to
      believe all, part or none of the evidence.” Commonwealth v.
      DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001) (internal
      citations omitted).

Commonwealth v. Garland, 63 A.3d 339, 344-45 (Pa. Super. 2013).

“[W]e 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.”

Commonwealth v. O’Brien, 939 A.2d 912, 913-14 (Pa. Super. 2007)

(quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.

2001) (additional citations omitted)).

      Appellant contends the evidence does not support a finding that her

actions created a physically offensive or hazardous condition, citing

Commonwealth       v.     Williams,   574   A.2d   1161   (Pa.   Super.   1990).

Appellant’s Brief at 9.    In Williams, this Court first considered whether

Williams’ conduct created a hazardous condition and explained that a

“hazardous condition” is “a condition that involves danger or risk.”      Id. at

1164. The Court determined that Williams’ action, walking in an apartment




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building parking lot in his underwear and entering a car belonging to a

tenant, did not create a hazardous condition.

      This Court then considered whether Williams’ conduct created a

physically offensive    condition,   explaining that a   “physically offensive

condition . . . encompasses direct assaults on the physical senses of the

members of the public.” Id. The Court determined Williams did not directly

assault the public’s physical senses by entering another person’s car while

wearing only underwear.       Id. at 1165.   The Court offered examples of

conduct sufficient to assault physical senses, including setting off a stink

bomb, strewing rotting garbage in public places or shining blinding lights in

the eyes of others. Id. at 1164. The senses offended in those examples are

smell and sight. Offending the sense of hearing by subjecting others in the

neighborhood to acrimonious verbal battling that prompted a neighbor to call

911 is no less offensive to the senses. Such conduct is readily distinguished

from entering another person’s car wearing only underwear and is

comparable to subjecting others to the smell of a stink bomb or rotting

garbage or shining a bright light in someone’s eyes. We conclude that the

evidence is sufficient to find that Appellant’s actions created a “physically

offensive condition.”

      Corporal Thomas explained that Appellant and her estranged husband

were in the driveway, “still verbally battling back and forth,” when he arrived

at the scene the second time, arguing in a volume “loud enough to wake the


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neighbors for them to call 911.” N.T., 12/16/13, at 4-5. As the trial court

noted, “[W]hen a police officer is called for a second (first time by

[Appellant]; the second time by neighbors) at or around 8:00 a.m. during a

highly charged altercation between participants in a domestic dispute and

divorce, the same can (and did) pose a risk of being hazardous.”        T.C.O.,

5/13/14, at 3. “The fact was that this was the second dispatch to which the

police had to respond within an approximate 20 minute period, and that the

dispute was acrimonious enough to warrant the neighbors to call police the

second time.” Id. Although the trial court refers to the conduct as posing a

risk of being hazardous, we do not find it necessary to consider the risk of

becoming hazardous when we have already concluded Appellant’s actions

were physically offensive, satisfying that element of the crime of disorderly

conduct.

      Appellant also asserts that her actions did not amount to a public

inconvenience and suggests this Court’s decision in Commonwealth v.

Beattie, 601 A.2d 297 (Pa. Super. 1991), is instructive. Appellant’s Brief at

14. Appellant’s reliance on Beattie is misplaced. Beattie was arrested and

charged with disorderly conduct for his conduct with officers who arrived at

his home in response to a “vague radio dispatch apparently occasioned by a

telephone complaint about some men and an unlicensed car at Beattie's

address.”   Id. at 299.    Beattie refused to answer questions or provide

identification and told the officers to get off his property, all in response to


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questions posed by the officers in relation to what was later determined to

be an investigative stop. Id. at 300. This Court concluded that “the police

lacked the reasonable suspicion required to continue up the private driveway

and conduct an investigative stop of Beattie.” Id. at 301 (citation omitted).

“Inasmuch as the officers had no authority to compel Beattie to answer their

inquiries, Beattie’s conviction for disorderly conduct, which was the result of

his refusal to answer, must be reversed.” Id. (citation omitted).3

       Appellant argues that no members of the public were affected by her

actions, contending “[t]he only members who were affected were [Appellant]

and her husband who had a private disagreement on her private driveway.”

Appellant’s Brief at 11. The 911 call from a neighbor belies that assertion.

Appellant may have intended to engage in a private argument with just one

person, i.e., her estranged husband, but by exposing her neighborhood to

the argument, as evidenced by the neighbor’s 911 call, her actions can

properly be classified as causing or risking public annoyance or alarm. See

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3
  In dicta, this Court commented that Beattie’s disorderly conduct conviction
warranted reversal, even if his investigative stop had been valid, because
the events took place on his private property such that there was no risk of
public inconvenience or alarm, based on the definition of “public” in the
statute. Beattie, 601 A.2d at 301. The episode between Beattie and the
police occurred in his driveway, away from the street, on Beattie’s two-acre
property that abutted the South Pittsburgh Water Company and an
unoccupied two-acre lot. Id.      As noted above, the definition of “public”
includes “neighborhood,” and unlike the facts in Beattie, Appellant’s arrest
stemmed from a disturbance that presented a risk of public inconvenience,
annoyance or alarm to a neighborhood.



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Commonwealth v. Troy, 832 A.2d 1089, 1094 (Pa. Super. 2003) (“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.”) (citing

Commonwealth v. Kidd, 442 A.2d 826, 827 (Pa. Super. 1982)). The fact

the dispute was taking place in the driveway on Appellant’s property does

not change the fact her actions affected the “public” in Appellant’s

neighborhood. See, e.g., Commonwealth v. Alpha Epsilon Pi, 540 A.2d

580 (Pa. Super. 1988), where this Court, in evaluating a sufficiency

challenge under § 5503(a)(2) (relating to unreasonable noise) stated: “We

are satisfied that any residences near enough to receive the noise emanating

from the fraternity house are within the ‘neighborhood’ for purposes of

establishing disorderly conduct.” Id. at 583.

       Appellant also relies on Commonwealth v. Smith, 811 A.2d 578 (Pa.

Super. 2002), in support of her assertion that her conduct did not result in

public inconvenience. Importantly, Smith was charged with a third degree

misdemeanor under § 5503(b).             Id. at 579.4   By contrast, Appellant was

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4
 Section 5503(b) provides: “(b) Grading.--An offense under this section is a
misdemeanor of the third degree if the intent of the actor is to cause
substantial harm or serious inconvenience . . . . Otherwise disorderly
conduct is a summary offense” (emphasis added).
(Footnote Continued Next Page)


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charged with a summary offense. The Court explained that the mens rea for

a summary charge can be simple recklessness.                    Id.    The Court then

suggested that the misdemeanor version of the offense “requires a showing

of specific intent ‘to cause substantial harm to the public or serious public

inconvenience.’ [Commonwealth v. Coon, 695 A.2d 794, 798 (Pa. Super.

1997) (emphasis in original)].”              Id.      Our Supreme Court has since

announced that the grading of disorderly conduct as a misdemeanor does

not require substantial harm to the public or serious public inconvenience,

but   rather   only     the    intent   to   create    substantial    harm   or   serious

inconvenience.     Commonwealth v. Fedorek, 946 A.2d 93, 100-01 (Pa.

2008).5

      As our Supreme Court explained in Fedorek:

      Although Section 5503 as a whole is aimed at preventing public
      disturbance, it accomplishes this aim by focusing upon certain
      individual acts, which, if pursued with the intent to cause public
      inconvenience, annoyance, or alarm, or recklessly creating a risk
      thereof, constitute the offense of disorderly conduct. These
      individual acts focus upon the offender’s behavior. . . .
      Significant is the fact that the General Assembly did not require
                       _______________________
(Footnote Continued)


5
  The Supreme Court’s decision in Fedorek reversed this Court’s decision
reported at 913 A.2d 893 (Pa. Super. 2006), and abrogated not only Smith,
811 A.2d 578 (Pa. Super. 2002), but also Commonwealth v. Coon, 695
A.2d 794 (Pa. Super. 1997). Despite that fact, Appellant quotes this Court’s
opinion in Fedorek on page 13 of her brief and cites both Smith and Coon
in her brief on pages 15 and 14, respectively, without mentioning our
Supreme Court’s decision and the impact on the cited cases.




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      that [a] prohibited[] act be directed at a certain number of
      persons that could qualify as “the public.” Therefore, 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, the offender may be subject
      to conviction for disorderly conduct. . . . Indeed, there are
      numerous appellate decisions of this Commonwealth determining
      evidence to be sufficient to sustain convictions for disorderly
      conduct where the underlying public acts involve, as in the
      instant case, the private melodramas of two or three people that
      also cause or create the risk of public disturbance.

Id. at 100 (emphasis in original) (citations omitted).

      Despite Appellant’s contention that her “private argument” with her

estranged husband did not constitute a “public inconvenience,” it is clear

that the argument created enough of a public inconvenience to prompt a 911

call from a resident of Appellant’s neighborhood.        We agree with the trial

court that the evidence was sufficient to find that Appellant intended to

cause or created the risk of causing “public inconvenience, annoyance or

alarm.” 18 Pa.C.S.A. § 5503.

      Viewing all the evidence admitted at trial in the light most favorable to

the verdict winner, we conclude there was sufficient evidence for the trial

court, as fact-finder, to find every element of disorderly conduct under 18

Pa.C.S.A. § 5503(a)(4) beyond a reasonable doubt.          Therefore, we affirm

the December 16, 2013 order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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