Com. v. Burns, M.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MARIA BURNS, : No. 3499 EDA 2012 : Appellant :

Appeal from the Judgment of Sentence, November 14, 2012, in the Court of Common Pleas of Northampton County Criminal Division at No. CP-48-SA-0000228-2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND JENKINS, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 03, 2014

Appellant, Maria Burns, appeals from the judgment of sentence entered in the Court of Common Pleas of Northampton County following her conviction for disorderly conduct. We affim.1

Appellant was charged by the Moore Township Police Department with two separate incidents of disorderly conduct; the first incident occurred on June 13, 2012, at the Moore Township recreational park. According to the testimony of Sydney Wright (“Wright”), age 14, she and appellant’s son, Anthony, and another boy, Brandon Green, were riding their bicycles on the trails. (Notes of testimony, 11/14/12 at 4-5.) Wright received a call on her

1 On April 8, 2014, in a memorandum decision, we remanded this case to the trial court for appellant’s court-appointed counsel to file a Pa.R.A.P. 1925(b) statement and the trial court to prepare and file its Pa.R.A.P. 1925(a) opinion. The case is now ready for our review.

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cell phone from Brandon’s mother, Dana Green, asking the group to come back to the park. (Id. at 5.) Upon their return, Wright testified that appellant was there and “everything was normal.” (Id. at 6.) Appellant went back to her house to get Anthony a pair of shoes and Gatorade. (Id.) When appellant returned a half-hour later, Wright said appellant was acting “differently” and “mumbling under her breath.” (Id.) Wright was playing with Dana Green’s two-year-old son when appellant, standing three feet away from Wright, started talking about how she thought Wright was a foreign exchange student from Germany. (Id. at 6-7.) Wright testified she did not understand what appellant was saying because “it didn’t make much sense to me” and then appellant “called us the N word and white trash.” (Id. at 7.) When asked how she felt when appellant approached her, Wright said, “I felt intimidated and just nervous.” (Id. at 9.) When asked how many times appellant used the “N word,” Wright answered, “I only heard it once.” (Id. at 11.) When asked if appellant referred to only Wright as white trash, Wright responded, “I don’t know if it was meant for me, but she said it to the group of us.” (Id.) Dana Green also testified that appellant used the “N word” one time. (Id. at 18.) The police were called and appellant was issued a citation for disorderly conduct, 18 Pa.C.S.A. § 5503(a)(1), (2), (3) & (4) at Citation No. P 8605386-6.2

2 We note that the citation lists “sub. sec. A(1), (2), (4)” on one line. Directly above, under Crimes Code Title 18, “(A3)” is listed. The original citation is attached to Document # 2 in the certified record.

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The second incident occurred on July 10, 2012. Colleen Greene, (“Greene”), testified that appellant’s house is next door to her house, and there are about 100 feet between the properties. (Notes of testimony, 11/14/12 at 28.) According to Greene, she had just returned to her home after going to lunch and grocery shopping. (Id. at 29) Appellant, while standing on her own driveway, started yelling and calling Greene names; such as, “you are white trash, you’re mother F-ing white trash, controlling jerk.” (Id. at 30.) Greene testified this has happened before; and on this particular day, appellant just kept saying, “you’re white trash, you’re white trash.” (Id. at 31.) Greene testified no one else was present during this incident. (Id. at 34.) She called the police and appellant was cited for disorderly conduct, 18 Pa.C.S.A. § 5503(a)(2), (3) & (4) at Citation No. P 9256315-5.

A hearing was held on August 1, 2012, before District Magistrate Robert A. Hawke on both citations. The certified record indicates that appellant was found guilty of disorderly conduct at both citations and fined $339 for each citation for a total of $678. Appellant filed a timely appeal to the Court of Common Pleas of Northampton County on August 30, 2012. Both summary convictions were consolidated for a non-jury trial de novo that took place on November 14, 2012.

On November 14th, at the close of testimony, Attorney Paul J. Levy, counsel for appellant, made an oral motion for a demurrer regarding the

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second incident appellant was cited for on July 10, 2012. The trial court sustained counsel’s motion. (Notes of testimony, 11/14/12 at 34.) The trial court then went on to find appellant guilty in connection with the first incident on June 13, 2012. The trial court stated:

The Court will find the defendant, after a de novo hearing, guilty of violating section 5503 of the Crimes Code, subsections two, three, and four. The Court will impose a fine upon her identical to that imposed upon her earlier at $339, plus the additional costs associated with the Northampton County proceedings.

Id. at 35-36 (emphasis added).

A timely appeal to this court followed, and appellant presents the following issues for our review:

1. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE?

2. WHETHER THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE?

3. WHETHER THE CONDUCT OF [APPELLANT] UNDERLYING THE CRIMINAL CONVICTION CONSTITUTED FREE SPEECH PROTECTED BY THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION?

Appellant’s brief at 4.3

Section 5503(a) defines disorderly conduct as follows:

3 A fourth issue listed in appellant’s statement of questions involved has been abandoned.

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§ 5503. Disorderly conduct

(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;

(2) makes unreasonable noise;

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

(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

18 Pa.C.S.A.§ 5503. Specifically, our supreme court has held that an individual may be convicted for disorderly conduct “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.” Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008).

Before proceeding, we must address the unclear nature of exactly which sections appellant was charged with and convicted of. The only matter before us is the first citation regarding the June 13, 2012 incident. The original citation found in the certified record charges appellant with a violation of Section 5503(a)(1), (2), (3), and (4). The nature of the offense is described as follows:

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Defendant caused public inconvenience annoyance and alarm; to wit she began yelling at the victim (15 years old) in a loud tone and screaming at other children and adults in the rec. center. Defendant’s actions had no meaning toward the victim which served no legitimate purpose.

Citation No. P 8605386-6, received 6/18/12, District Court 03-3-01 (attached to Document #2).

As already noted at the conclusion of the November 14, 2012 de novo trial, the trial court found appellant guilty of Section 5503(a)(2), (3), and (4). However, the trial court’s Rule 1925(a) opinion indicates the issues in this case concern Subsections (a)(1), (2), and (4). (Trial court opinion, 7/7/14 at 1, 3.)

By letter dated October 3, 2014, the Commonwealth advised this court that it concedes there was insufficient evidence presented at trial to sustain appellant’s conviction under Section 5503(a)(3).4 However, the Commonwealth notes appellant was convicted under two other sections, Sections 5503(a)(2) and (a)(4), and that appellant has not challenged those convictions on appeal. We have reviewed appellant’s brief, and the Commonwealth is correct that appellant only addresses the evidence as it relates to Section 5503(a)(3). Specifically, appellant argues that the trial

4 We agree with the Commonwealth that there was insufficient evidence to convict appellant under Section 5503(a)(3). There was no evidence that appellant’s words were intended to appeal to anyone’s prurient interest or described sexual conduct in a patently offensive way. See Commonwealth v. McCoy, 69 A.3d 658, 665 (Pa.Super. 2013), appeal denied, 83 A.3d 414 (Pa. 2014).

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court confuses the two incident dates since Section 5503(a)(3) was charged in the July 10th incident which was dismissed. To the extent that appellant argues sufficiency under Section 5503 generally, or as to Sections 5503(a)(2) and (4), we find the trial court’s opinion amply supports a finding of sufficiency with respect to these two sections, and we affirm on that opinion.

Appellant has filed an application for relief to include copies of both the June 13, 2012 and July 10, 2012 citations. Our review indicates the original citation regarding the June 13, 2012 incident is already included in the certified record. Based on our review and discussion in this Memorandum, the supplementation of the record is not necessary. Accordingly, the motion is denied.

Judgment of sentence affirmed. Donohue, J. joins the Memorandum. Jenkins, J. concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/3/2014

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IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA · CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

VS.

MARIA BURNS, ::..:: Appellant. ., Pa,R.A.P. 1925(.) Stat.",ent "- AND NOW, this L day of July, 2014, the Court issues the following

statement:

A. Pxocedural History

On June 13, 2012, the Appellant, Maria Burns, was issued a non-traffic citation at DO. 8605386'6 for disorderly conduct under 18 Po.C.S. §§ 5503(a)(1), (2), & (1). The citation charges the Appellant with causing public inconvenience, annoyance, and alarm by yelling at the Victim (age 14) in a loud tone and screaming at other children and adults in a recreational center. It further alleges that the Appellant's actions had no meaning or legitimate purpose.

0.0. July 9, 2012, the Appellant received a sQcond citation for clisorderly conduct at no . 9256315-5. This citation charges the Appellant with causing public inconvenience, annoyance, and alarm by yelling and cursing at bel' neighbor without justification.

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The Appellant represontod hersolf ut the summary pmceading before Magisterial District Judge Robert Hawke . MDJ Hawke found her guilty of both offenses. The Appellan~ then appealed her convictions to the Court of Common Pleas, this time with the assistance of counsel, Paul Levy, Esquire .

The undersigned heard the summary appeal on Nuvember 14, 2012. The Court lound the Appellant guilty of disorderly conduct on the June 13, 2012 citation but not guilty on the July 9,2012 citation.

The Appellant filed a timely notice of appeal on December 11, 2012. At this point, we incorporate the procedural history from OUI Pa.R.A.P. 1931(b) Statement dated June 20, 2013,

On remand from the Superior Court, we appointed Brian Monahan , EsqUire, to represent the Appellant on April 11, 2014. We directed Attorney Monahan to file a statement pursuant to Pa.R.A.P. 192Mb). We later granted his request for additional time due to the unavailability ofilie trial transcript.

B. The Appellate Issues

Attorney Monahan submitted his 1925(b) statement on May 29, 2014,l'aising the following issues:

(1) The verdict was against the weight of the evideoce;

(2) The verdict was against the sufficiency of the evidence;

(a) The conduct of Defendant underlying the criminal L'ODvlction constituted free speech protected by the First Amendment ofthe Unit.ed States Constitution; and

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(4) The Court erred in allowing testimony to SUPpOl"t Lbe conviction which related to a different offense.

C. DiscuBsion

We begin our discussion with the Appellant's challenge to the sufficiency of

the evidence. The test for the sufficiency of the evidence is whether, a~epting as

true all the evidence, including all reasonable inferences drawn therefrom, the

evidencc and inferences are sufficient to prove guilt beyond tl reasonable doubt. 1

The summary offense of "Disorderly Conducf' is governed by 18 Pa.C.S. §

5503(a), which provides that "A person is guilty of disorderly conduct if, within the

intent to cause public inconvenience, annoyan(:e or a larm, or reckless creating a risk

thereof, be:

(D engages in fighting or threatening, or in violent or tumultuous behavior;

(2) makes unreasonable noise;

(3) uses obscene langua ge, Or makes an obscene gesture; or

(4) creates a hazardous or physically offensive condition by any act which serves nO legitimate purpose of the actor.

At issue in this case are subsections (a)(1), (2), and (4) .

During the hearing, the Commonwealth presented two witnesses in support of the June 13,2012 citation. The first witness to testify was the Victim, age 14. I See Commonwealth v. Msstrll.nge.io, 414 A.2d 54, 59 (Fa. 1980)

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The Victim testified that. on June 14, 2012,2 she rode her bike to the Moore

Township Recreational Park with the Appellant's son and Dana Green's son. The

trio rode their bikes until Dana Green called the Victim and her son and asked

them to return. The children complied with this request and returned to the park

Upon their retul'n, everything was "normal." The Appellant was pI'esent and

<lstanding around." At some point. however, she left the park to retrieve a pair of

shoes and a bottle of Gatorade. When the Appellant returned about 30 minutes

later, she seemed "different."

The Victim saw her walking back and forth and mumbling under her brea.th .

Initially. she did not think much of it. However, the Victim became frightened

when the Appellant approached to within three feet afher and began to accuse her

of being a foreign exchange student from Germany.

The Victim, who was not a foreign cxchauge student, did not understand

what the Appellant was saying. The Appellant insisted that she was. Her voice

grew progressively lou der until s he was shouting at the Victim. She warned the Victim not to ".. . get her family involved."

The Appellant called the Victim "N-J-G-G-E-R" and "white trash_" At this point, the Appellant's son got upset and rode off into the woods. Dana Green and an adult named Sarah gathel'ed the remaining children and retreated to the park's

! We nol~ the discrepancy between the trial testimony Gud the citlttion daLe. However, this teclmicaJity was not raised at trial and i!O uot at issue on appeal.

Circulated 11/21/2014 09:34 AM baseball fields. Sarah then calied the police. The Appeliant drove away but was stopped by the police.

The Victim felt intimidated and nervous when the Appellant h ad approached her. She believed the Appellant might hit her. The Appellant yelled in an erratic, high·pitched tone. She did not threaten any physical violence, however.

The second witness to testify was Dana Green. She testified that, on June 13.2012, her oldest son was at the Moore Township recreational center with the Appellant's son and the Victim. This had upset the Appellant because she did not want her son to "meander" in the woods with a girl.

Consequently, Dana Green called the Victim and her son and asked them to return, which they did. The Appellant and her son then talked for a bit. After that, the Appellant left the park to get shoes and a drink.

The Appellant bad a di!ferent demeanor upon her return. Sbe was agitated

and r ust ling around." She was mumbling to herself and moving back and forth. OI

Dana Green was in the pavilion with her three'year old child when the AppeUant began to speak to the Victim about being in a foreign exchange program. This conversation escalated. Neither Dana Green nor the Victim understood what the Appellant was saying.

Dana Green asked the Appellant to stop. 'The Appellant replied that Dana Green should not question her. Her voice rose as she exclaimed that the Victim

Circulated 11/21/2014 09:34 AM "knew exactly what she was talking about and if she didn't, she would question [the Victim's] mother about that."

The cODversation continued to escalate_ The Appellant cUI'sed at Danll Green and calJed her an "N-I'G-G-E-R" and "white trash." Dana Green wanted to get out of there _ In her view, the conversation hud escalated to the point where it was no longer safe.

The police were then called. Dana Green moved het children to the other side of the park where it was safe.

The Appellant testified in her defense. She stated that she was not remorseful, and felt that she had a right to question the Victim. She believed the other adults' behavior on the date in question was indicative of "white trash." The Appellant did not like ber children to have a "free for all" running through the woods.

The Appellant acknowledged that she had recently been treated by a neurosurgeon for issues with her brain. She bad undergone 18 months of periodic CAT scans in an attempt to identify the source of her unexplainable bleeding. The Appellant did not assert the defense of mentaL incompetence in this case, however.

The Court found the Appellant guilty of the June 13. 2012 citation under all three subsections. We submit that there was sufficie nt evidence for this verdict. In support, we note the uncontroverted testimony that the Appeilant initiated an unprovoked and profanitY'laced confrontation with a 14 year-old girL The intensity

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of this irrational con.:flict escalatod to wh~re the other udults felt the need to J·cmove

themselves from the Appellant's vicinity and contact the police.

The Victim testified that the Appellant had approached to within three feet of

her with an increasingly hostile barrage of offe nsive language. The Victim feared

tba t the Appellant might strike her. The Appellant had screamed nonsensical

ramblings in a high"pitched tone, and re fused to balt her tirade when asked. The

Appe llant's loss of self"control affected everyone around her, including her son.

We submit thaL this unprovoked display of unremitting hostility toward a

child is s uffiCle nt to s ustain the Appellant's conviction for disorderly conduct. 3

We tur n now to t he Appellant's challenge to the weight of the evidence. We

employ the following standard of review:

A motion for a Dew trial on the ground that the verdJct is contra!)' to the weight of the evidence concedes that there is suffic.ient evidence to s ustain the verdict. Thus, the trial court is und~r no obligation to view the evidence in this light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evide'n ce is addressed to the discretion of the trial co urt, A new trial should not be granted because of a me re conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juraT. Rather, the role of the trial judge is to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'4

g See ComltJonwl!slth v. Mastrangelo, 414 A.2d 5'1. (Pa. 1980) t Commonwea.Jrh v. Widmer, 744 A.2d 745,751'752 CPa. 2000) (internal citatiON omitted).

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In our view. there are 00 facts of rocord &.hat compel a new trial. For whatever reason, the Appellant appeal'S i.o ha ve undergone a mental or emotional shift that caused her to become hostile and abusive. This personality change may be attributable to the brain issue for which she received medical treatment. However, a brain abnormality (even if proven) would not give the Appellant a license to bel'ate others, especialJy children, with impunity.

Moreover, the Appellant did not raise this defense at tl'laJ. Rather, Attorney Levy argued that the Appellant had a "legitimate purpose" for addressing the Victim with racial epithets like "white trash" and "N·l·G·G·E-R." We do not agree.

In our view, no civilized society should condone this type of unprovoked and abusive behavior from an adult toward a child. Accordingly, 've submit that the verdict was n ot contrary to the weight ofthe evidence.

Next, we addre38 the Appellant" contention that her cond uct was protected by the First Amendment to the United States Constitution. The U.S. Suprerue Court has explained the limitations on the right to free speech as follows:

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well'defined and narrowly limjtoo. classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words those which by their velj' utterance inJ1ict injury or tend to incite an immediate hreach of the peace. It has been weH observed that such utterances are no essential part of any exposition of ineas, and are of such slight social value as a step to truth that any benefit that may be derived

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from t.hem is clearly outweighed by the social interest:in order and morality. 'Resort to epithets or personal abuse is not in any sense proper communicatioIl of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. s (emphasis added) .

We submit that the AppeUant's speech falls into the unprotected category of 'fighting words.' In support, we note that neither Dana Green nor the Victim understood what the Appellant was saying. Because the Victim was not a foreign exchange student, the AppeUant's attempt to interrogate her on this topic was meaningless.

The Appellant peppered her invective with racial epithets and used a hostile tone to press her attack. She was not engaged in a meaningful dialogue or symbolic speech . . In OUl' view, her speech was devoid of any "social value as a step to truth." We therefore submit that her actions are not subject to protection by the First Amendment.

Finally, we address the Appellan~s claim that the Court erred in using testimony from a. different offense to support this conviction. The AppelJant is referring to the testimony of CoUeen Green, the Appellant's neighbor, offered by the Commonwealth in support of the Ju.ly 9, 2012 citation.

Colleen Green testified that the Appellant had berated her On a daily basis for over a year without any apparent cause. 'fhe Appellant alternately referred to

5 CommonwealtlJ Y. Mas/.rangeio, 414 A.Zd 51, 58 (Pa. 1980) (quoting Chaplinsky Y. N£'w HllmpsiJll'l', 315 U.S . 568, 571-572 (]912)).

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her (and he.r other neighbor) as "F'ing white trash," "controlling jel'k," "whoro." and

"prostitute," Ultimately, the Court dismissed the July 9, 2012 citation for lack of

testimony that this behavior had taken place in a public location.

To start, we Dote the presumption "that a trial court, sitting as fact'finder,

can and will disregard prejudicial evidence."6 In addition, we submit that there is

no indication that the Court used Colleen Green's testimony to support its verdict

on the June 13, 2012 citation. Instead, as set forth above, we believe the evidence

was sufficient to sustain the Court's guilty verdict independent of Colleen Green's

testimony. We therefore submit that thi s final assertion of error is meriiless.

We respectfully request that the judgment be affirmed in all respects. d CommomvelJ./th v. .FellI'S. 86 A.3d 795, 820 (P8.. 2014) Gnt.ernaJ CItation omittedJ.