J-S35033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

LISA A. KOZERO,

                            Appellant                       No. 3592 EDA 2014


          Appeal from the Judgment of Sentence November 18, 2014
               in the Court of Common Pleas of Carbon County
              Criminal Division at No.: CP-13-CR-0001038-2013


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                      FILED JULY 08, 2015

        Appellant, Lisa A. Kozero, appeals from the judgment of sentence

imposed on November 18, 2014, following her jury conviction of disorderly

conduct.1 On appeal, Appellant claims that the evidence was insufficient to

sustain    her   conviction     and    that    the   disorderly   conduct   statute   is

unconstitutional as applied to her. We affirm the judgment of sentence.

        We take the underlying facts and procedural history in this matter

from the trial court’s February 11, 2015 opinion.

              On October 17, 2013, [Appellant’s] son, Joseph Kozero
        (hereinafter “Joseph”), walked to the Lehighton Borough Police
        Station (hereinafter the “police station”) to report that
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 5503(a)(4).
J-S35033-15


       [Appellant] was missing after she failed to come home for
       several days, answer her cell phone or call Joseph or any other
       family members since October 15th. Upon arriving at the police
       station, Joseph provided Officer Matthew Arner with a written
       statement relative to [Appellant’s] disappearance. Officer Arner
       attempted to contact [Appellant] via her cell phone. He was not
       successful as the call went straight to [Appellant’s] voicemail.
       Approximately fifteen (15) to twenty (20) minutes after Joseph’s
       arrival, [Appellant] telephoned the police station. Officer Arner
       took the call and [Appellant] relayed to him that she would “be
       right there.” Within five (5) minutes of speaking with Officer
       Arner, [Appellant] arrived at the police station in an extremely
       agitated state. Officer Arner attempted to explain to [Appellant]
       why he requested that she come to the police station, at which
       point she began yelling at Joseph.         Officer Arner ushered
       [Appellant] into the police station’s interview room. She then
       became boisterous and confrontational. At that time, Officer
       Arner, Detective Scott Prebosnyak, and Joseph were inside the
       interview room with [Appellant].

              [Appellant] subsequently attempted to leave the interview
       room and was advised by Officer Arner and Detective
       Prebosnyak that she was not free to go as there were two
       outstanding warrants for her arrest.[2]           As [Appellant]
       attempted to leave the interview room, Officer Arner grabbed
       her arm and elbow, at which point [Appellant] began tucking her
       arms at her sides. While being restrained, [Appellant] was
       screaming profanities at the officers. Officer Neil Ebbert, who
       was in the patrol room, which is situated in the police station
       twenty (20) to twenty-five (25) feet from the interview room and
       behind two closed doors, went to assist Officer Arner and
       Detective Prebosnyak upon hearing [Appellant] screaming and
       yelling. Officer Ebbert entered the interview room and observed
       Officer Arner and Detective Prebosnyak attempting to restrain
       [Appellant].     The officers placed [Appellant] against the
       interview table, during which time she continued to struggle and
       flail her arms. At least nine (9) times, the officers instructed
       [Appellant] to stop resisting and informed her that she was
       under arrest. However, [Appellant] refused to comply with the
____________________________________________


2
 At trial, the parties stipulated to the validity of the outstanding bench
warrants. (See N.T. Trial, 9/11/14, at 52).



                                           -2-
J-S35033-15


     officers’ orders. The officers were required to use substantial
     force to place [Appellant] under arrest. Officers Arner and
     Ebbert were attempting to pull [Appellant’s] arms out from
     under her while Detective Prebosnyak was behind [Appellant]
     trying to prevent her from getting up. Moreover, even after
     [Appellant] was in handcuffs and instructed to keep her voice
     down, she continued yelling. [Appellant] was then placed in a
     holding cell.

           As a result of her actions on October 17, 2013, [Appellant]
     was charged with one count of resisting arrest and one count of
     disorderly conduct. On September 12, 2014, following a two-
     day jury trial, [Appellant] was found not guilty of resisting arrest
     and guilty of disorderly conduct.      On November 18, 2014,
     [Appellant] was sentenced to a term of imprisonment in the
     Carbon County Correctional Facility for a period of not less than
     seven (7) days nor more than one (1) year. [Appellant] was
     given a credit of seven (7) days time served against her
     sentence and was immediately paroled.

(Trial Court Opinion, 2/11/15, at 1-4) (footnotes and record citations

omitted).

     On December 17, 2014, Appellant filed the instant, timely appeal. On

December 18, 2014, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal.         See Pa.R.A.P. 1925(b).

Appellant filed a timely Rule 1925(b) statement on January 2, 2015; on

February 11, 2015, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

     On appeal, Appellant raises the following questions for our review:

     I.     Whether the evidence was sufficient to support
            [Appellant’s] conviction for [d]isorderly conduct under 18
            Pa.C.S.A. § 5503(a)(4) when [Appellant’s] conduct did not
            create a hazardous condition?

     II.    Whether the [d]isorderly conduct statute, 18 Pa.C.S.A. §
            5503(a)(4), was unconstitutional as applied to [Appellant]


                                    -3-
J-S35033-15


            as it criminalized speech that was protected by the First
            Amendment of the United States Constitution?

(Appellant’s Brief, at 4).

      In her first issue, Appellant claims that the evidence was insufficient to

sustain her conviction for disorderly conduct because her actions did not

create a hazardous condition because “there [were] three officers at the

scene [who were] able to quickly get the situation under control to prevent

any injury.” (Appellant’s Brief, at 9).

      Our standard of review for sufficiency of the evidence claims is well

settled:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed
      in a light most favorable to the Commonwealth as verdict
      winner, support the conviction beyond a reasonable doubt.
      Where there is sufficient evidence to enable the trier of fact to
      find every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations

omitted) (emphasis added).




                                      -4-
J-S35033-15


      “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 . . . creates a hazardous or physically offensive condition by any act

which serves no legitimate purpose of the actor.”            18 Pa.C.S.A. §

5503(a)(4). Appellant only challenges the sufficiency of the evidence as to

the final element: whether she created a hazardous or physically offensive

condition. (See Appellant’s Brief, at 9-14).

      Our Court has defined a hazardous condition as one that involves

“danger [or] risk.”   Commonwealth v. Roth, 531 A.2d 1133, 1137 (Pa.

Super. 1987), appeal denied, 541 A.2d 1137 (Pa. 1988) (citations omitted).

We have stated that, “[t]he dangers and risks against which the disorderly

conduct statute are directed are the possibility of injuries resulting from

public disorders.” Commonwealth v. Williams, 574 A.2d 1161, 1164 (Pa.

Super. 1990). Lastly, we have noted that “[t]he reckless creation of a risk

of public alarm, annoyance or inconvenience is as criminal as actually

causing such sentiments.”    Commonwealth v. Reynolds, 835 A.2d 720,

731 (Pa. Super. 2003) (citation omitted).

      Herein, Appellant arrived at the Lehighton Borough Police Station,

which was open to the public from 8:30 a.m. through 4:30 p.m., during

normal business hours.     (See N.T. Trial, 9/11/14, at 39-40, 45-46, 59).

Police Officer Arner testified that after he explained to Appellant why she

was there and took her to the interview room where her son was waiting she


                                     -5-
J-S35033-15


started yelling and became “agitated . . . loud . . . boisterous . . . [and]

confrontational.”   (Id. at 45, see id. at 44).   Appellant was screaming so

loudly that Officer Ebbert heard her at a distance of twenty to twenty-five

feet away and behind two closed doors. (See id. at 131). Although advised

by the police that she could not leave because of two outstanding warrants,

Appellant ignored them and attempted to leave. (See id. at 96-97). As the

officers attempted to place Appellant under arrest, she actively resisted

them by flailing her arms and legs, and placing her arms under her so that

the police could not put them behind her back to handcuff her. (See id. at

53-56, 73-76, 134-35). Officers issued at least nine warning to Appellant to

stop resisting. (See id. at 55, 75). It took three police officers to subdue

her.   (See id. at 142-43).   Officer Arner testified that they could not use

pepper spray or a taser to subdue Appellant because doing so in such a

small room would have subjected Appellant’s older son, the officers, and

Appellant’s younger son and his girlfriend, who were seated in the hallway

outside the interview room, to a greater risk of harm. (See id. at 57-59).

       In Commonwealth v. Lopata, 754 A.2d 685 (Pa. Super. 2000), the

appellant, a high school student, became involved in an altercation with

another student in the cafeteria.   See Lopata, supra at 687.      A teacher

intervened and asked both students to go into the hall with him.     See id.

The appellant refused, swung his arms around knocking over a chair, and

swore at the teacher, causing other students to back away from the area.


                                     -6-
J-S35033-15


See id. On appeal, the appellant argued that this conduct was insufficient

to sustain a conviction for disorderly conduct. See id. at 688. This Court

disagreed, stating that “there was ample evidence to find that Appellant . . .

created a condition that was hazardous or physically offensive to the other

students in the cafeteria.” Id.

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

appeal denied, 940 A.2d 363 (Pa. 2007), the appellant was a witness for the

respondent, his stepson, in a Protection from Abuse (PFA) hearing.                See

Love, supra at 1279.             After the trial court issued the PFA order, the

appellant   and    his    wife   became   “vocally   agitated,   angry,   loud,   and

disruptive.”   Id.       The deputy sheriffs assigned to the courtroom issued

several instructions to the appellant and his wife to be quiet and return to

their seats; the couple ignored the instructions.        See id.    When a deputy

sheriff approached the wife, the appellant intervened, placing an arm on the

sheriff’s chest.     See id.      The sheriff removed the appellant from the

courtroom, and when the appellant observed other deputies escorting his

wife from the courtroom, he resumed yelling and the deputy sheriff had to

restrain him. See id.

      On appeal, the appellant argued that the evidence was insufficient to

sustain his conviction for disorderly conduct because his behavior did not

create a hazardous or physically offensive condition. See id. at 1280, 1286.

We disagreed, holding that “[i]nherent in the act of physically attempting to


                                          -7-
J-S35033-15


impede a law enforcement officer from carrying out his or her official duties

in the public arena is the risk of creating a condition hazardous or physically

offensive in nature.” Id. at 1286.

      Appellant acknowledges that the holdings in Lopata and Love imply

that the evidence in the instant matter is sufficient to demonstrate that

Appellant created a hazardous or physically offensive condition.         (See

Appellant’s Brief, at 11-12). Nonetheless, Appellant attempts to distinguish

both by arguing that, in the instant matter, the officers had control over the

situation while in Lopata a single teacher was trying to control two students

in a crowded cafeteria and, while acknowledging that several deputies were

present in Love, claims that they had to contend with two offenders and a

crowded courtroom. (See Appellant’s Brief, at 12-13). However, Appellant

points to nothing in either case that would support this theory.

      Here, Appellant, while yelling so loudly that she could be heard

through two doors, actively attempted to prevent the police from arresting

her, and physically flailing around in a confined space in such a manner that

she created both a risk to the police officers and to her older son.     Thus,

there is ample evidence to show that Appellant created a hazardous or

physically offensive condition in a police station that was open to the public.

Appellant’s claim that the evidence was insufficient to sustain her conviction

lacks merit. See Love, supra at 1286; Lopata, supra at 688.




                                     -8-
J-S35033-15


       In her second issue, Appellant claims that her conviction was based

upon her conduct of yelling and cursing at the police and thus was speech

“protected by the First Amendment because it was directed at police officers

creating little risk that it would lead to violence.” (Appellant’s Brief, at 14).

Accordingly,     Appellant    contends     that   18   Pa.C.S.A.   §   5503(a)(4)   is

unconstitutional as applied to her.3 (See id. at 15-19). We disagree.

       It is long settled that the First Amendment does not bar a conviction

for disorderly conduct under Pennsylvania Law.             See Starzell v. City of

Philadelphia, Pennsylvania, 533 F.3d 183, 204 (3d. Cir. 2008).4                     An

individual can be found guilty of disorderly conduct, without offending the

First Amendment, “if in the presence of members of the general public [s]he

shouts obscenities although the principal intent of the defendant may have

been to insult the police rather than to cause [p]ublic inconvenience,

annoyance, or alarm.” Commonwealth v. Hughes, 410 A.2d 1272, 1274

(Pa. Super. 1979) (citation and internal quotation marks omitted). “[I]t is

well-settled in our Commonwealth that one may be convicted of disorderly
____________________________________________


3
  Appellant acknowledges that the disorderly conduct statute is facially
constitutional. (See Appellant’s Brief, at 15).
4
  We note “decisions of the federal district courts . . . are not binding on
Pennsylvania courts, even when a federal question is involved.
Nevertheless, these decisions are persuasive authority and helpful in our
review of the issue presented.” Dietz v. Chase Home Finance, LLC, 41
A.3d 882, 886 n.3 (Pa. Super. 2012) (citation omitted).




                                           -9-
J-S35033-15


conduct for engaging in the activity of shouting profane names and insults at

police officers on a public street while the officers attempt to carry out their

lawful duties.”   Commonwealth v. Pringle, 450 A.2d 103, 105-06 (Pa.

Super. 1982).     In Commonwealth v. Mastrangelo, 414 A.2d 54 (Pa.

1980), appeal dismissed, 449 U.S. 894 (1980), the appellant yelled

obscenities at a meter maid ticketing his car. When the appellant saw the

meter maid the next day, he again yelled obscenities and followed her until

she left the area, despite her requests that he desist, and so frightening her

that she could not patrol the area for a week. See id. at 55-56. Appellant

argued, in part, that the disorderly conduct statue was unconstitutional as

applied to him.    See id.     The Pennsylvania Supreme Court disagreed,

stating:

            It is clear in the instant case that appellant was not
      exercising any constitutionally protected right; rather, in a loud,
      boisterous and disorderly fashion, he hurled epithets at the
      meter maid which we believe fit the . . . definition of fighting
      words. Even under our narrow construction of the disorderly
      conduct statute, we can find no merit in appellant’s argument
      that the statute was invalid as applied to him.

Id. at 58; cf. Commonwealth v. Hock, 728 A.2d 943, 946-47 (Pa. 1999)

(single epithet uttered in normal tone of voice, while appellant was walking

away from police office and no bystanders were present did not constitute

“fighting words” and, thus, evidence insufficient to sustain conviction for

disorderly conduct).




                                     - 10 -
J-S35033-15


     Initially, we note that, unlike in Hughes, Mastrangelo, Pringle, and

Hock, Appellant was not charged with violations of 18 Pa.C.S.A. §§

5503(a)(2) or (3), which prohibit unreasonable noise and obscene language,

respectively, but solely with creating a hazardous or physically offensive

condition   in   violation   of   18   Pa.C.S.A.     §    5503(a)(4).     Thus,    the

Commonwealth did not charge her with an offense that directly targeted her

speech. Secondly, in arguing that Appellant’s arrest was based on protected

speech directed against the police, Appellant improperly views the facts in

the light most favorable to her, not in the light most favorable to the

Commonwealth.         (See    Appellant’s   Brief,   at    18).    Thirdly,   we   are

unpersuaded by Appellant’s attempt to distinguish Mastrangelo by arguing

that, because the speech in the instant matter was directed toward the

police rather than to a meter maid, Mastrangelo is somehow inapplicable.

(See Appellant’s Brief, at 18 n.4). Lastly, Appellant completely ignores this

Court’s decision in Roth, supra, whose analysis of the distinction between

protected First Amendment activity and activity which constitutes disorderly

conduct, we find persuasive.

     In Roth, there was an on-going dispute between a church and a group

of protestors; the protestors announced their intention of holding a protest

and dumping scrap metal on church property on Easter Sunday. See Roth,

supra at 1135-36.      On Easter Sunday, the protestors marched in front of

the church but were told by a church official that they were not welcome on


                                       - 11 -
J-S35033-15


church property. See id. at 1136. When the protestors refused to abide by

this rule, local police warned them not to come onto church property,

however, the protestors attempted to do so and the police arrested them.

See id. On appeal, the appellants challenged their convictions pursuant to

18 Pa.C.S.A. § 5503(a)(4), in part, on First Amendment grounds. See id. at

1138. In upholding the conviction, our Court distinguished between those

activities which were protected by the First Amendment, protesting on public

property, and those which were not. See id. at 1138-39. We stated:

           In the case at bar, we agree with Appellants’ assertion that
     the protections of the First Amendment extend not only to the
     statements made by [the] defendants in this case, but to their
     expressive activity as well, including both their procession along
     the sidewalk and their holding of a symbolic offering while
     standing on the public sidewalk in front of the Church.
     Nevertheless, Appellants’ arguments in this respect are awry by
     virtue of the fact that Appellants were not arrested for their
     misuse of the public sidewalks. To the contrary, the public
     sidewalks in front of the Church were appropriate areas on which
     to protest the predicament of the poor and unemployed of the
     Mon Valley. It was only when Appellants maneuvered to enter
     Church property so as to inflict their viewpoint on its
     congregation did Appellants abandon the protection afforded by
     the First Amendment. Likewise, it was at this point the elements
     of disorderly conduct coalesced. On these grounds Appellants’
     convictions rest. Thus, Appellants’ attempt to categorize their
     arrests as abridgements of their constitutional rights must fail.

Id. (internal quotation marks and record citation omitted).

     Likewise, in the instant matter, the police did not arrest Appellant and

charge   her   with   disorderly   conduct     for   engaging   in   protected   First

Amendment activity or because of the content of any statements she made

to police.     Rather, while the police were attempting to arrest her on

                                      - 12 -
J-S35033-15


outstanding warrants, she created a disturbance by engaging in aggressive,

loud, and boisterous behavior, physically flailing about in an attempt to

prevent the arrest.   There is simply no merit to Appellant’s claim that the

disorderly conduct statute is unconstitutional as applied to her.       See

Mastrangelo, supra at 58; Roth, supra at 1138-39.

     Appellant’s issues do not merit relief.    Accordingly, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

     Judge Mundy concurs in the result.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




                                   - 13 -
