J-A22005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    KARL W. HAUSCH,

                             Appellant                 No. 252 EDA 2018


           Appeal from the Judgment of Sentence December 15, 2017
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-SA-0000460-2017


BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 05, 2018

        Appellant, Karl W. Hausch, appeals from the judgment of sentence of a

$300.00 fine, imposed following his conviction for disorderly conduct, 18

Pa.C.S. § 5503(a)(1). After careful review, we affirm.

        The trial court summarized the facts adduced at trial as follows:
               At the hearing before the undersigned on December 15,
        2017, Christiaan Daleus testified that on April 14, 2017, he was
        working as a machine operator and truck driver for Victory
        Gardens at their mulch yard located in Falls Township, Bucks
        County, Pennsylvania, when he had a physical altercation with
        Appellant.    Daleus was driving a large tractor–trailer when
        Appellant, who was delivering fuel to the yard, parked his fuel
        truck in a spot that prevented Daleus from backing up and loading
        his tractor-trailer. As a result, words were exchanged, and
        according to Daleus, Appellant told him “to go F myself” and came
        around to the driver’s side of the truck and started yelling and
        cursing at him. When Daleus got out of his truck and laughed at
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     Appellant and told him he “was acting like a baby,” Appellant
     “threw this giant log, bigger than a baseball bat,” hitting Daleus
     on the arm and slightly cutting him. Daleus then grabbed a shovel
     that was on a piece of machinery that Appellant had climbed onto
     and threw it at Appellant, apparently hitting him. Daleus then
     moved Appellant’s fuel truck “a hundred feet down the road so it
     would be out of the way because I knew the cops were coming
     and he had the road blocked up and he was not leaving the yard.”
     Daleus and Appellant were both subsequently issued citations for
     disorderly conduct, to which Daleus pleaded guilty.          [N.T.,
     12/15/17, at 3-20].

            Officer Michael Parnes of the Falls Township Police
     Department testified that he was called to the Victory Gardens lot
     in Falls Township on April 14, 2017. He observed that Daleus was
     agitated and upset, and had a minor cut on his arm, allegedly from
     blocking a log thrown at him by Appellant. Although he did not
     identify or find the specific log allegedly thrown by Appellant at
     Daleus, Officer Parnes observed “multiple logs” lying on the
     ground in the area. Appellant then related to Officer Parnes that
     Daleus had thrown a shovel at him, and Officer Parnes observed
     a minor cut on Appellant’s lip. He issued both Daleus and
     Appellant citations for disorderly conduct. [Id. at 22-28].

            Appellant testified that he arrived at the yard to make fuel
     deliveries to the various equipment located there when a tractor-
     trailer drove by him quickly and “in an unsafe manner.” The
     tractor-trailer then backed up and the driver yelled at him, “You’re
     in my fucking way again.” Appellant stated that as he went around
     the front of the truck to alert Rene, one of the machine operators
     at the yard, Daleus started to threaten and curse at him.
     Appellant said he tried to get away from Daleus who followed …
     him, and Appellant eventually climbed up onto a log chipping
     machine to make Rene aware that Daleus was chasing him. When
     Appellant jumped off the machine, Daleus threw the metal shovel
     object at him[,] which hit him in the lip. They exchanged some
     more heated words and Daleus then walked away. Rene then
     gave his cell phone to Appellant who called 9-1-1 and stated to
     the operator that Daleus “almost chopped his head off.” Appellant
     denied throwing a log or anything at Daleus. [Id. at 31-50].

Trial Court Opinion (“TCO”), 2/16/18, at 2-4.




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      At the end of the trial, the court found Appellant guilty of disorderly

conduct, and immediately sentenced him to pay a fine of $300.00 and the

costs of prosecution. Appellant filed a timely notice of appeal on January 23,

2018, and submitted a timely, court-ordered Pa.R.A.P. 1925(b) statement on

February 6, 2018. The trial court issued its Rule 1925(a) opinion on February

16, 2018.

      Appellant now presents the following question for our review:
      Whether a judgment of acquittal or a new trial should be granted
      because the verdict was based on insufficient evidence provided
      at trial to prove that [Appellant] recklessly created a risk of public
      inconvenience, annoyance or alarm by engaging in fighting or
      threatening, or in violent or tumultuous behavior under 18
      Pa.C.S.[] § 5503(a)(1)?

Appellant’s Brief at 4.

      Our standard of review of sufficiency claims is well-settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. 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. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention to
      human experience and the laws of nature, then the evidence is
      insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      The disorderly conduct statute reads, in pertinent part, as follows:




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      (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;
                                       …

         (3) uses obscene language, or makes an obscene gesture;
                                       …

      (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.

      Appellant’s argument is three-fold. First, he claims that the altercation

did not occur in a public setting within the meaning of the disorderly conduct

statute. Second, he asserts that the Commonwealth failed to prove that he

acted with the requisite “intent to cause public inconvenience, annoyance or

alarm.” 18 Pa.C.S. § 5503(a). Third, Appellant argues that he did not engage

in “fighting or threatening, or in violent or tumultuous behavior[.]” 18 Pa.C.S.

§ 5503(a)(1).

      Appellant contends that the altercation between Christiaan Daleus and

himself did not occur in ‘public’ within the meaning of the disorderly conduct

statute. Appellant argues that the “mulch yard is a private lot and not in a

residential neighborhood or in a place where [he] would expect other

members of the public or a substantial group to be.” Appellant’s Brief at 12.

The trial court rejected this argument, reasoning:


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      According to the statute, “the word ‘public’ means affecting or
      likely to affect persons in a place to which the public or a
      substantial group has access,” and this includes “places of
      business ... or any premises which are open to the public.” [18
      Pa.C.S. § 5503(c).] It is obvious that the Victory Gardens mulch
      yard in Falls Township is a “place of business” to which the “public
      or a substantial group” of people such as landscapers, arborists
      and mulch delivery services “has access.” [Id.] The Victory
      Gardens yard is not a private institution or location that was only
      open to particular individuals by specific invitation or
      arrangement.

TCO at 7.

      We agree with the trial court. As a place of business to which the public

had free access, Victory Gardens is clearly a “public” area for purposes of the

disorderly conduct statute, even if privately owned. See Commonwealth v.

Whrienour, 751 A.2d 687, 688 (Pa. Super. 2000) (holding that a private road

in a gated community was still a public area for purposes of the disorderly

conduct statute, where “the road was located in a neighborhood, whatever its

legal constitution, and was traversed by members of the community and their

invitees or licensees”). We disagree with Appellant’s assertion that this case

is more similar to Commonwealth v. Mauz, 122 A.3d 1039 (Pa. Super.

2015), where this Court reversed a conviction for disorderly conduct.        In

Mauz, the defendant, standing near the front door to his own home, accosted

his neighbor with obscene language. We found this insufficient to support a

disorderly conduct conviction because “both the speaker and recipient of the

offensive remarks were present in respective private yards.” Mauz, 122 A.3d

at 1042.    Here, neither Appellant nor Daleus were on their own private




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property. Instead, they were both at a place of business that was open to the

public. Accordingly, this aspect of Appellant’s sufficiency claim lacks merit.

      Next, Appellant asserts that the Commonwealth failed to provide

sufficient evidence of the mens rea element of disorderly conduct, that he

“inten[ded] to cause public inconvenience, annoyance or alarm[.]” 18 Pa.C.S.

§ 5503(a). He argues that Victory Gardens is not a location where he expected

other members of the public to be and, thus, that he did not have the intent

to annoy the public.        This argument is largely reliant on Appellant’s

characterization of Victory Gardens as a purely private facility, which, as noted

above, it is not. Moreover, the disorderly conduct statute does not merely

prohibit   conduct   specifically   intended    to   cause   public   inconvenience,

annoyance, or alarm.      Rather, it also prohibits “recklessly creating a risk

thereof.” Id. “A person acts recklessly with respect to a material element of

an offense when he consciously disregards a substantial and unjustifiable risk

that the material element exists or will result from his conduct.” 18 Pa.C.S. §

302(b)(3). Thus, sufficient evidence of Appellant’s intent is established where

it could be shown that he consciously disregarded a substantial and

unjustifiable risk that some member of the public would be inconvenienced,

annoyed, or alarmed by his behavior.           Daleus testified that Appellant was

yelling and cursing and then threw a log at him. A reasonable person would

understand that such behavior risks annoying or alarming other individuals in

the vicinity. At a minimum, it annoyed and/or alarmed Daleus. “The specific

intent requirement of this statute ‘may be met by a showing of a reckless

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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). Appellant’s yelling, cursing,

and physical assault, although all directed at one individual, were acts that

were sufficient to demonstrate his reckless disregard of the risk of causing

public inconvenience, annoyance, or alarm, given the fact that he was in a

place of business that was open to the public.         This aspect of Appellant’s

sufficiency claim also lacks merit.

      Finally, Appellant contends that he did not engage in “fighting” within

the meaning of the disorderly conduct statute. He asserts that, “based on

[Appellant]’s version of events, he did not engage in any fighting or

threatening, or in violent or tumultuous behavior.” Appellant’s Brief at 13.

However, it is clear that the judge, sitting as factfinder, did not find Appellant’s

testimony credible. See TCO at 6 (finding that “it was clear that Appellant

and Daleus engaged in threatening behavior toward each other, if not outright

fighting, … and we did not find Appellant’s assertions to the contrary credible

or convincing”). “[I]t is for the fact-finder to make credibility determinations,

and the finder of fact may believe all, part, or none of a witness’s testimony.”

Commonwealth v. Thompson, 934 A.2d 1281, 1285 (Pa. Super. 2007).

Accordingly, this issue is meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/18




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