Com. v. Simpson, B.

J. A02032/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : BRIAN PAUL SIMPSON, : No. 324 WDA 2019 : Appellant :

Appeal from the Judgment of Sentence Entered January 30, 2019, in the Court of Common Pleas of Lawrence County Criminal Division at No. CP-37-SA-0000092-2018

BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 10, 2020

Brian Paul Simpson appeals pro se from the January 30, 2019 judgment of sentence of a $300 fine plus the costs of prosecution imposed after he was found guilty in a trial de novo of disorderly conduct.1 After careful review, we affirm the judgment of sentence.2

The trial court summarized the relevant facts of this case as follows:

On Thursday, April 5, 2018, Trooper Jerel T. Smith and Trooper Robert Cox were working the midnight to 8[:00] A.M. shift out of the New Castle Barracks of the Pennsylvania State Police. The Pennsylvania State Police received a noise complaint about shooting at around 3:00 A.M. made by [appellant’s] neighbor, either John Argiro or his wife. The State Police dispatch contacted [appellant] and requested him to proceed to a nearby Dollar General so the responding

1 18 Pa.C.S.A. § 5503(a)(2). 2 The Commonwealth has not filed a brief in this matter.

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officers could speak to him safely. Trooper Smith was first dispatched to the house of John Argiro before meeting [appellant] at the Dollar General with Trooper Cox.

Trooper Smith had been involved with a previous call in March of that year where he and another officer warned [appellant] to not shoot his firearm at that time of night or he would probably be cited. The same procedure of meeting at the Dollar General was used in the prior incident. [Appellant] was not charged based on this prior incident.

Returning to the night of the charged behavior, at 2:50 A.M., Troopers Smith and Cox arrived at Argiro’s residence, who was the complainant in the previous encounter between [appellant] and Trooper Smith.

Argiro testified [appellant] would fire his gun in the general orientation towards his residence, not to shoot at the residence, but such that he could see the light from the muzzle flash. Argiro did not see a flash on the particular incident in question.

Argiro also testified that [appellant] does not shoot during the daytime, only in the early morning.

While it was clear Argiro and [appellant] were having a personal dispute and some of the Argiro testimony was disputed, this court credited these basic facts as credible.

When contacted about the shooting on April 5, [2018] Trooper Smith indicated the reason [appellant] gave for shooting at that time was because he did not like some lights [that] shone into his bedroom and disturbed his sleep.

This court credited Trooper Smith as credible. Trial court opinion, 4/12/19 at 1-3 (citations to notes of testimony and footnotes omitted).

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Appellant was found guilty of disorderly conduct by the magisterial district judge and appealed to the Court of Common Pleas of Lawrence County. On January 29, 2019, appellant proceeded to a trial de novo and was found guilty of one count of disorderly conduct in violation of Section 5503(a)(2). The trial court found appellant not guilty of disorderly conduct under Sections 5503(a)(1), (3), and (4). That same day, the trial court sentenced appellant to pay a $300 fine plus the costs of prosecution. This timely pro se appeal followed.3

Appellant raises the following issues for our review:

1. Was it prejudicial to [appellant’s] rights for the trial court to change an essential element of the charge that appellant was convicted of at the summary court, during the trial, when [a]ppellant was neither charged with or convicted of that charge, and the charge was not indicated as such on the citation?

2. Was the evidence sufficient to prove that [a]ppellant intentionally caused or recklessly risked a public inconvenience, annoyance or alarm by target shooting on his five acre property in a rural neighborhood where target shooting and hunting is common?

3. Was it an abuse of the trial court[’]s discretion to not allow [a]ppellant to elicit testimony from the witness when [the]witness opened the door to this testimony and that his testimony was not hearsay, but in fact circumstantial evidence that he was aware of the North Beaver Township Police determination that [a]ppellant was legally in compliance with Pennsylvania law while

3 Appellant and the trial court have complied with Pa.R.A.P. 1925.

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target shooting on his private property, and was that determination correct?

4. Did appellant[’]s use of his private target shooting range after daylight hours violate 18 P[a.]C.S.A. [§] 5503(a)(2) when the [trial] court said using it during day light [sic] hours did not?

5. Does 34 P[a.]C.S.A. [§] 2507(b)(4) and 35 P.S. [§] 4501 prevail over 18 P[a.]C.S.A. [§] 5503(a)(2) in providing immunity from prosecution for making noise from target shooting while on one’s own private target shooting range?

6. Was 18 P[a.]C.S.A. [§] 5503(a)(2) unconstitutional as applied to appellant[’]s use of his target shooting range in after dark hours?

Appellant’s brief at 4-5.4

We begin by addressing appellant’s claim that he is immune from prosecution for disorderly conduct, based on the purported statutory defense set forth in Section 2507(b)(4) of the Game and Wildlife Code, 34 Pa.C.S.A. § 101 et seq. (Id. at 38-52.) We disagree.

Here, appellant was found guilty of one count of disorderly conduct in violation of Section 5503(a)(2), which provides that “[a] person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . makes unreasonable noise[.]” 18 Pa.C.S.A. § 5503(a)(2) (emphasis added). “Pennsylvania law

4 For the ease of discussion, we elect to address appellant’s claims in a different order than presented in his appellate brief.

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defines unreasonable noise as not fitting or proper in respect to the conventional standards of organized society or a legally constituted community.” Commonwealth v. Forrey, 108 A.3d 895, 898 (Pa.Super. 2015) (citations and internal quotation marks omitted). Under this standard, the Commonwealth must prove “that the noise here was unreasonable, i.e., inconsistent with neighborhood tolerance or standards.” Id. at 899 (citation omitted).

Section 2507(a) of the Game and Wildlife Code governs restrictions on shooting and provides as follows:

(a) General rule.--It is unlawful for any person during the open season for the taking of any big game other than turkey to:

(1) Shoot at any mark or target other than legal game or wildlife with a firearm of any kind or a bow and arrow.

(2) Discharge at any time any firearm or release an arrow at random in the general direction of any game or wildlife not plainly visible for the purpose of routing or frightening them.

(3) Discharge at any time any firearm or release an arrow at random or in any other manner contrary to this section.

34 Pa.C.S.A. § 2507(a).

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Section 2507(b), in turn, sets forth several exceptions to this general prohibition against “target shooting” during open hunting season5 by allowing target practice at an approved location. Specifically, Section 2507(b)(4) provides as follows:

(b) Exceptions.--This section shall not be construed to apply in any manner to:

....

(4) Shooting at a properly constructed target or mark or a dead tree protected by a natural or artificial barrier so that the ball, bullet or arrow cannot travel more than 15 yards beyond the target aimed at, after making due allowance for deflection in any direction not to exceed an angle of 45 degrees. Target shooting shall only be lawful when it is done:

(i) Upon property owned by the shooter or by a guest of the property owner.

(ii) Within 200 yards of the camp or other headquarters where the person shooting is quartered or is an invited guest or visitor.

34 Pa.C.S.A. § 2507(b)(4).

5 “Open season” is defined in 34 Pa.C.S.A. § 102 as “the indicated periods of the calendar year and the daily hours during which game or wildlife may be legally hunted, taken or killed and includes both the first and the last day of the season or period of time designated by this title or by regulation of the commission.” Id.

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Here, appellant’s reliance on Section 2507(b)(4) as a purported defense to his disorderly conduct charge is misplaced because the exceptions set forth in Section 2507(b) only apply to those offenses listed in Section 2507(a), and not the disorderly conduct statute, which is essentially a noise control law. See Forrey, 108 A.3d at 898-899; see also 34 Pa.C.S.A. § 2507(b)(4) (noting exceptions to Section 2507(a)). Appellant was not charged with violating Section 2507(a), and accordingly, his claim is meritless.

In a related claim, appellant contends that the trial court erred in failing to interpret 35 P.S. § 4501 to provide him with “immunity from prosecution for making noise from target shooting while on one’s own private target shooting range.” (Appellant’s at 5, 53-57.) Again, we disagree.

When addressing a question of statutory construction, our standard of review is de novo and the scope of our review is plenary. Commonwealth v. Barbaro, 94 A.3d 389, 391 (Pa.Super. 2014) (citation omitted). Interpretation of a statute is guided by the polestar principles set forth in the Statutory Construction Act, 1 Pa.C.S.[A.] § 1501 et seq., which has as its paramount tenet that the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Commonwealth v. Hart, [28 A.3d 898, 908 (Pa. 2011)] (quoting 1 Pa.C.S.[A.] § 1921(a)).

Commonwealth v. Markun, 185 A.3d 1026, 1029 (Pa.Super. 2018) (internal quotation marks and brackets omitted; citation formatting amended).

Section 4501 of Title 35, Health and Safety, governs the general immunity provided to owners of shooting ranges from any civil or criminal action based on noise or noise pollution, and provides as follows:

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All owners of rifle, pistol, silhouette, skeet, trap, blackpowder or other ranges in this Commonwealth shall be exempt and immune from any civil action or criminal prosecution in any matter relating to noise or noise pollution resulting from the normal and accepted shooting activity on ranges, provided that the owners of the ranges are in compliance with any applicable noise control laws or ordinances extant at the time construction of the range was initiated. If there were no noise control laws or ordinances extant at the time construction of the range was initiated, then the immunity granted by this act shall apply to said ranges.

35 P.S. § 4501.

The crux of appellant’s claim on appeal is premised on his belief that his private property qualifies as a shooting range under Section 4501. Although the term “shooting range” is not defined in the statute, our review of the record supports the trial court’s determination that “[appellant’s] informal activity of target shooting on his property does not make him an owner of a range for the purposes of Section 4501.” (Trial court opinion, 4/12/19 at 13.) As the trial court properly recognized in its opinion, such a finding

would lead to a near infinite variety of absurd results if all shooting on one’s own property was to be immunized from noise control. . . . [T]he extreme informality of [appellant’s] specific shooting activity makes it difficult for this court to characterize him as an ‘owner of a range’ even wh[en] that phrase is taken in a very broad sense.

Id.

In any event, even if this court were to construe appellant’s property as a shooting range for purposes of Section 4501, the immunity provided for in

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this section applies only to “the normal and accepted shooting activity on ranges[.]” 35 P.S. § 4501. Appellant’s act of repeatedly shooting his firearm in the pitch black at approximately 3:00 a.m. on a weeknight in an area with neighboring residential properties with children can hardly be considered a “normal and accepted shooting activity” in any community, rural as it may be. (See notes of testimony, 1/29/19 at 5-11, 28; see also 35 P.S. § 4501.) The interpretation of Section 4501 urged by appellant is clearly unreasonable. If that interpretation were followed, it would favor the private interest of the owner of such a shooting range over the interests of all adjoining landowners. Accordingly, appellant’s purported defense under Section 4501 must fail.

Appellant also argues that the citation charging him with disorderly conduct violated his due process rights (see appellant’s brief at 11-21); that there was insufficient evidence that he possessed the requisite mens rea to recklessly create a risk of public inconvenience, annoyance, or alarm sufficient to sustain his conviction under Section 5503(a)(2) (see appellant’s brief at 22-30); and that the Commonwealth failed to prove: (a) he created a public harm or inconvenience because he was on his private property at the time the shooting occurred (see id. at 31-34), and/or (b) the noise he created was inconsistent with the standards of the neighborhood (see id. at 35-37).

Our review reveals that the trial court authored a comprehensive and well-reasoned opinion that thoroughly addresses and disposes of appellant’s remaining claims. Accordingly, we adopt the pertinent portions of the trial

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court’s April 12, 2019 opinion as our own for purposes of this appellate review of these claims. (See trial court opinion, 4/12/19 at 3-6, 9-11.)

For all the foregoing reasons, we affirm the trial court’s January 30, 2019 judgment of sentence.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/10/2020

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Circulated 02/21/2020 09:56 AM

COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS

vs. : LAWRENCE COUNTY, PENNSYLVANIA

BRIAN PAUL SIMPSON, : SUMMARY APPEAL

Defendant. : NO. 92 OF 2018

APPEARANCES

For The Commonwealth: Jonathan R. Miller, Esq. Office of the District Attorney 430 Court Street New Castle, PA 16101

For The Defendant: Pro Se

OPINION

cox, J. April 12, 2019

This Opinion is authored pursuant to Pa.R.A.P. 1925(a).

Brian Paul Simpson appealed to the Court of Common Pleas from the guilty

finding by the magisterial district judge. This court held a de novo trial on January 29,

2019. This court found Simpson guilty of violating 18 Pa.C.S.A. § 5503(a)(2). Simpson

filed a notice of appeal on February 26, 2019. This court ordered the preparation of a

Pa.R.A.P. 1925(b) Concise Statement of the Errors Complained of on Appeal. Simpson

filed the Concise Statement on March 21, raising six errors.

The facts which make up this case are as follows:

On Thursday, April 5, 2018, Trooper Jerel T. Smith and Trooper Robert Cox were I

working the midnight to 8 A.M. shift ·out of the New Castle Barracks of the Pennsylvania 53RO JUDICIAL DISTRICT F1LED/ORIG1NAL

'WRENCE COUNTY 2019 APR I 2 PH 2: 07 PENNSYLVANIA

JODlKLABON·ESOlOO oon t,,.�·\n CLERK.

State Police.1 The Pennsylvania State Police received a noise complaint about shooting

at around 3:00 AM. made by Simpson's neighbor, either John Argiro or his wife. The

State Police dispatch contacted Simpson and requested him to proceed to a nearby

Dollar General so the responding officers could speak to him safely.2 Trooper Smith was

first dispatched to the house of John Argiro before meeting Simpson at the Dollar

General with Trooper Cox.

Trooper Smith had been involved with a previous call in March of that year where

he and another officer warned Simpson to not shoot his firearm at that time of night or he

would probably be cited.3 The same procedure of meeting at the Dollar General was

used in the prior incident. Simpson was not charged based on this prior incident.4

Returning to the night of the charged behavior, at 2:50 A.M., Troopers Smith and

Cox arrived at Argiro's residence, who was the complainant in the previous encounter 5 between Simpson and Trooper Smith.

Argiro testified Simpson would fire his gun in the general orientation towards his

residence, not to shoot at the residence, but such that he could see the light from the

muzzle flash.6 Argiro did not see a flash on the particular incident in question.'

Argiro also testified that Simpson does not shoot during the daytime, only in the

early morning.8

1 Notes of Testimony, January 29, 2019, p. 31, 34. 2 Notes of Testimony, January 29, 2019, p. 32, 35. 3 Notes of Testimony, January 29, 2019, p. 31-33. 4 This court considers this warning for the sole purpose of the due process reliance doctrine discussed herein. 5 53RD Notes of Testimony, January 29, 2019, p. 35. 6 JUD IC IA L Notes of Testimony, January 29, 2019, p. 6, 29. DISTRICT 7 N.T., January 29, 2019, p. 9. FILEDJORIGIN"L 8 NT., January 29, 2019, p. 10. ,wRENCE COUNTY PENNSYLVANIA 2019 APR I 2 P" 2: 07 2 JODI KLAOON·�SOLOO __ .... r'.01/ • �·!"'> ,.,,

While it was clear Argiro and Simpson were having a personal dispute and some

of the Argiro testimony was disputed, this court credited these basic facts as credible.

When contacted about the shooting on April 5, Trooper Smith indicated the

reason Simpson gave for shooting at that time was because he did not like some lights

which shone into his bedroom and disturbed his sleep.9

This court credited Trooper Smith as credible.

Did the citation comport with D.ue. Process?

Simpson's first claim of error is that this court violated his due process rights

because the original citation and this court's guilty finding with regard to Section

5503(a)(2) do not comport with the requirement of a formal charge under the Sixth

Amendment to the United States Constitution.

Simpson is correct that the right to formal charges is guaranteed under the Sixth

Amendment.

"The right to formal notice of charges in a criminal proceeding is guaranteed by

the Sixth Amendment to the United States Constitution and is so basic to the fairness of

subsequent proceedings that it cannot be waived even if the defendant voluntarily

submits to jurisdiction of the court. Formal accusation and specific charge enables a

defendant to properly defend and protect himself from further prosecution of the same

offense, and enables the court to determine the sufficiency of the prosecution's case to

support a conviction." Com. v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. Ct. 1997)

(citing Com. v. Goldblum, 447 A.2d 234 (Pa. 1982)).

For summary offenses, Pa.R.Crim.P. 403(a)(6)10 provides: "(A) Every citation shall 53R D JUDICIAL contain: (6) a citation of the specific section and subsection of the statute or ordinance DISTRICT

9N.T, January 29, 2019, p. 36. lWRl:..NCl:.. COUNTY Pl:NNSYLVANtA

allegedly violated, together with a summary of the facts sufficient to advise the defendant

of the nature of the offense charged;"

The citation in the present case charges a violation of 18 Pa.C.S.A. § 5503(a)(1),

(2), (3), and (4). As these subsections all relate to very different fact patterns under the

general umbrella of disorderly conduct, the citation plainly violates the requirement that

the defendant is given notice of the specific section and subsection under which he is

charged.

The remedy for violation of this rule is not universally dismissal. Actual prejudice

against the defendant is required for that remedy. Pa.R.Crim.P. 109 says: "A defendant

shall not be discharged nor shall a case be dismissed because of a defect in the form or

content of a complaint, citation, summons, or warrant, or a defect in the procedures of

these rules, unless the defendant raises the defect before the conclusion of the trial in a

summary case or before the conclusion of the preliminary hearing in a court case, and

the defect is prejudicial to the rights of the defendant." (emphasis added).

"Such prejudice will not be found where the content of the citation, taken as a

whole, prevented surprise as to the nature of summary offenses of which the defendant

was found guilty of at trial, or the omission does not involve a basic element of the

offense charged." Com. v. Nicely, 988 A.2d 799, 807 (Pa. Cmwlth. Ct. 2010) (cleaned

up).

The citation in the present case provides notice of the general section under

which he was charged, Section 5503(a), and then states: "To Wit SIMPSON did fire his

rifle at 0300 hrs. on a school night which caused the public to be annoyed and alarmed." 5)RD JUDICIAL DISTRICT io Borriello deals with Rule 53 of the Rules of Criminal Procedure. As to subsection (a)(6), Rule 53 and its replacement Rule 403 are facsimiles. \WRENCE COUNTY PENNSV LVANIA

This final sentence of the citation cannot be read except as a noise-based citation.

Section 5503(a)(2) is the sole section which dealt with noise. The superfluous charging

of the other subsections did not cause prejudice to Simpson, and his citation should not

be dismissed on this basis.

The second claim of error by Simpson consists of two subclaims.

i. Did the C.ommonwealth sufficiently prove. the ..mens rea .element?

First is the general claim he did not have the intent required under Section 5503.

The intent element of Section 5503 requires the Commonwealth to prove, at a

minimum, the defendant recklessly created a risk of public inconvenience, annoyance, or

alarm.

In Com. v. Alpha Epsilon Pi, 540 A.2d 580 (Pa. Super. 1988), the Superior Court

reviewed the question of whether loud music could constitute unreasonable noise. "[T]he

intent element may be satisfied on a showing of recklessly creating a risk of public

inconvenience or annoyance. Here, a music sound system was operated at 11 :20 at

night [on a Wednesday), from a dwelling house with the windows open, such that the

sound was heard by a resident living on a parallel street one block distant, and the sound

continued such that it was readily heard by an investigating police officer at a distance of

fifty yards from the house. These facts are sufficient to permit the trier of fact to find a

reckless disregard for public inconvenience and annoyance." kt at 583-584. Here, a gun was fired multiple times at around 3:00 A.M. on a Thursday. The

shots were fired outside and were heard from a residence around 200 yards away.

Based on Alpha Epsilon Pi, the facts were clearly sufficient to find reckless disregard for 53RD JUDICIAL public inconvenience and annoyance. Additionally, Simpson had a specific grievance DISTRICT

\WRENCE COUNTY PENNSYLVANIA

about lights shining through his window, which he told Trooper Smith when he was

contacted about his shooting on April 5, 2018. This specific grievance and Simpson's

response to that grievance further support the conclusion he had intent to cause public

inconvenience, annoyance, or alarm.

ii. Does the due process reliance doctrine bar the prosecution?

The second subclaim is that the North Beaver Township Police told him his

shooting was legal, and that controls the outcome of this case.

The due process reliance doctrine, sometimes called entrapment by estoppel, is

an exception to the maxim that mistake of law is no defense and is raised when a

defendant alleges he relied on official statements which affirmed the legality of certain

behavior. Com. v. Kratsas, 764 A.2d 20, 31 (Pa. 2001). While the defense forecloses

prosecution should it apply, it is "rarely available," and arises "in a narrow set of unique

and compelling circumstances." .!.Q.. at 31, 32.

Pennsylvania has adopted a four-factor approach in applying the due process

reliance defense.

"First, in order to support invocation of the doctrine, most jurisdictions require that

there be an affirmative representation that certain conduct is legal. .. Second, the

representation should be made by an official or a body charged by law with responsibility

for defining permissible conduct respecting the offense at issue. Third, actual reliance

upon the official's statements should be present... Finally, the view is commonly held that

reliance must be in good faith and reasonable given the identity of the government

official, the point of law represented, and the substance of the statement. Reliance is 5JRU JUDICIAL reasonable and in good faith only where a person truly desirous of obeying the law would DISTRICT

,wRl:::�CE COU"'1TV P�NNSVLVANIA

have accepted the information as true, and would not have been put on notice to make

further inquiries." � at 32-33 (numerous citations omitted). The party seeking to apply

the defense bears the burden of proving each element. � at 33.

Simpson fails multiple aspects of this test.

First, Simpson must prove there was an affirmative representation that certain

conduct is legal. Simpson points to statements of North Beaver Township Police in

allegedly assuring him his conduct was legal. While Simpson argues these statements

were made, their contents were never brought into evidence by any means. Throughout

the de novo trial, Simpson attempted on cross-examination of the Commonwealth's

witnesses to present these statements through hearsay and argument, but neither the

substance of the statements nor their speaker was ever admitted. No North Beaver

Township official was called to testify or appeared at the hearing. Simpson fails the first

factor.

Second, no evidence was introduced about who on the North Beaver Township

Police made an affirmative statement and in what context the statement was made.

These are critical factors under the due process reliance doctrine and must be shown

even when an affirmative statement is made. The context of the statement is important to

provide evidence about whether an individual should justifiably rely or it was just laxity of

enforcement. Laxity of enforcement is insufficient to justify the application of the doctrine.

kl at 33. In Cox v. Louisiana, 379 U.S. 559 (1965), the highest police officials of a city

interpreted a statute prohibiting demonstrations "near" a courthouse. l!t. at 572. These 53RD JUDICIAL high police officials, in the presence of the sheriff and mayor of the city, told DISTRICT

�WRENCE COUNTY PENNSYL.VA.Nl/4.

demonstrators they could protest across the street from the courthouse. Later, the sheriff

ordered the group to disperse, contradicting the previous interpretation which was made

in his presence. The demonstrators were charged with violations of the courthouse

proximity statute.

In Raley v. Ohio, 360 U.S. 423 (1959), the Un-American Activities Commission of

the State of Ohio held a hearing in which it examined individuals relating to Communist

Party activities of several individuals. At one point in testimony, the Chairman of the

Commission erroneously told a witness: "I should like to advise you under the Fifth

Amendment, you are permitted to refuse to answer questions that might tend to

incriminate you. * * * But you are not permitted to refuse to answer questions simply for

your own convenience." [d, at 426-427. Later, this witness and others were prosecuted

for contempt of the commission for their refusal to answer questions.

The Supreme Court in both of these cases reversed the convictions based on the

reliance on official interpretations, but in each case, the officials making the interpretation

were in high-ranking positions. The Supreme Court emphasized in Raley the Chairman

of the Commission was in a clear position to give such assurances: "the Chairman of the

Commission, who clearly appeared to be the agent of the State in a position to give such

assurances"; "the State clearly had told him was available to him"; "they were the voice

of the State." (emphases added).

Due process reliance will not apply in most circumstances when there is an

erroneous interpretation of the law by a party who is not generally in charge of

performing such interpretation. In this case the record does not provide any clarification 53RO JUDJCIA L DISTRICT

,wRENCE COUNTY P'ENNSVLVANrA

about who told Simpson he could shoot and in what context. It was Simpson's burden to

demonstrate these facts.

Finally, the Court does not find it credible Simpson actually relied, in good faith, on

the statements of a member of the North Beaver Township Police. Simpson's behavior

indicates he would only accept statements which affirmed his belief his conduct was

legal. Trooper Smith testified that prior to the April incident for which Simpson is charged

here, he and Trooper Young responded to a call at 2:00 A.M. or 3:00 A.M. and informed

Simpson he could not shoot his gun at that time of night. Simpson's continued use of his

firearm at that time of night indicates both he was not "truly desirous of obeying the law"

and undermines the reliance Simpson may have had on the North Beaver Township

Police being "the voice of the State."

Simpson's argument on these bases is unpersuasive.

Did the Commonwealth sufficiently prove public harm?

Simpson's third claim of error is that there was insufficient evidence of the public

harm element because the complainant and the Defendant both were on their own

private properties. "Being in public is necessary to convict, both for the Defendant and

Complainant. The Court stated Defendant was in a public area. He was not. He was on 11 his private property at all times that the target shooting occurred. �

"(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: (2) makes unreasonable noise." 18 Pa.C.S.A. § 5503(a)(2).

"(c) Definition.--As used in this section the word "public" means affecting or likely 53RD JUDICIAL to affect persons in a place to which the public or a substantial group has access; among DISTRICT

11 Concise Statement of the Errors Complained of on Appeal, Error 3. ,wRENCE COUNTY PENNSYLVANIA

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.A. § 5503(c) (emphasis added).

Simpson engaged in target shooting in a neighborhood with multiple properties.

Argiro testified his house was between 150-200 yards from Simpson's property where he

was shooting.

Simpson need not have been on public property in order to cause public

inconvenience under Section 5503. Sound which emanates out from private property into

a neighborhood can constitute a violation even if all parties involved are on private

property. Alpha Epsilon Pi, supra.

Did Simps.on's shooting fit within the normal noisiness of the

neighborhood?

Simpson's fourth claim of error is that his firing of a firearm at 3:00 AM. is not

unreasonable noise because it fits within the general noise profile of the neighborhood in

which his shooting happened.

Simpson is correct that the relative noisiness of a neighborhood is relevant to the

charge of disorderly conduct. He also appropriately defines the test for unreasonable

noise under Pennsylvania law. "Noise must be "unseemly" to constitute disorderly

conduct, and that "unseemly" is understood to mean "not fitting or proper in respect to

the conventional standards of organized society, or a legally constituted community."

Alpha Epsilon Pi, 540 A.2d at 583.

Alpha Epsilon Pi again presents factual and argumentative similarity to the 5JRtl JUDICIAL present case. There, the fraternity argued because the neighborhood was on "fraternity DISTRICT

,wRENCE COUNTY PENNSYLVANIA

row", where presumably the noise cited did not significantly deviate from the normal

range of noise in that area. l!;L at 583. The Superior Court did not put much weight on

that argument. !Q,, While persuasive, this issue did not appear to be the central question

of Alpha Epsilon Pi.

In the present case, Defendant was shooting his firearm at 3:00 A.M. on a

weeknight. His shots could be heard from inside another house 150-200 yards away.

As examples of why this noise fit within the regular noise of the neighborhood,

Simpson elicited testimony that residents of the neighborhood, including Argiro, would

hunt during the daytime and that fireworks were also common in the summertime at night

and during the daytime. This court, in judging the facts of the case, finds a qualitative

difference between the recreational use of fireworks in the summertime, fireworks in the

daytime, shooting in the daytime, as compared to the shooting the Defendant did at 3:00

A.M. The shooting at this time of night was outside of the noise which fit within the

conventional standards of this neighborhood.

Additionally, as part of the fourth claim of error, Simpson argues the Court should

have allowed him to continue to develop the line of questioning about the standards of

the neighborhood. The transcript of the de novo trial reflects this court allowed Simpson

to develop this area of fact development.12 During that development, this court only

stopped the questioning on three occasions, first when examination became

argumentative, second, when repetitive questions were asked, and third when Simpson

asked a question relating to the witness' opinion about the legality of fireworks.

At no time did this court prevent Simpson from factually developing the area of the 53RO JUDICIAL relative noise in the neighborhood. DISTRICT

12 Notes of testimony, January 29, 20rn, pp. 18-23. �WRENCE COUNTY PENNSYLVANIA

Errors 5 and 6: fs there a statutory: defense to the prosecution?

The fifth and sixth claims state this court erred in not applying 34 Pa.C.S.A. §

2507(b)(4) and 35 P.S. § 4501 as exempting Simpson's behavior from the charge of

Disorderly Conduct.

34 Pa.C.S.A. § 2507(a) states: "It is unlawful for any person during the open

season for the taking of any big game other than turkey to: (1) Shoot at any mark or

target other than legal game or wildlife with a firearm of any kind or a bow and arrow. (2)

Discharge at any time any firearm or release an arrow at random in the general direction

of any game or wildlife not plainly visible for the purpose of routing or frightening them.

(3) Discharge at any time any firearm or release an arrow at random or in any other

manner contrary to this section."

34 Pa.C.S.A. § 2507(b) creates exceptions to the summary offense created by

subsection (a). "(b) Exceptions.--This section shall not be construed to apply in any

manner to: (4) Shooting at a properly constructed target or mark or a dead tree protected

by a natural or artificial barrier so that the ball, bullet or arrow cannot travel more than 15

yards beyond the target aimed at, after making due allowance for deflection in any

direction not to exceed an angle of 45 degrees. Target shooting shall only be lawful

when it is done: (i) Upon property owned by the shooter or by a guest of the property

owner." (emphasis added).

Simpson is not charged under Section 2507(a). The 2507(b)(4) defense does not

apply to all offenses, only those listed under 2507(a).

As to the application of 35 P.S. 4501, that section states: "All owners of rifle, 53Ro JUD IC IA L pistol, silhouette, skeet, trap, blackpowder or other ranges in this Commonwealth shall DISTRICT

,wRENCE COUNTV PENNSYLVANIA

be exempt and immune from any civil action or criminal prosecution in any matter

relating to noise or noise pollution resulting from the normal and accepted shooting

activity on ranges, provided that the owners of the ranges are in compliance with any

applicable noise control laws or ordinances extant at the time construction of the range

was initiated. If there were no noise control laws or ordinances extant at the time

construction of the range was initiated, then the immunity granted by this act shall apply:

to said ranges."

This court would hold as a matter of law that Simpson's informal activity of target

shooting on his property does not make him an owner of a range for the purposes of

Section 4501. While Section 4501 does not include a definitions section, it would lead to

a near infinite variety of absurd results if all shooting on one's own property was to be

immunized from noise control. While there would be marginal situations of course, and

this court does not intend to limit the definition to solely commercial ranges, the extreme

informality of Simpson's specific shooting activity makes it difficult for this court to

characterize him as an 'owner of a range' even what that phrase is taken in a very broad

sense.

For the sake of a full consideration of the question, a discussion of the field

follows:

"The object of all interpretation and construction of statutes is to ascertain and

effectuate the intention of the General Assembly." 1 Pa.C.S.A. § 1921 (a).

A review of the legislative history of Section 4501 reveals some discussion of the

purpose of the statute around the time of its enactment. In the 1987-1988 Session, 53RD JUDJCIA L Section 4501 was enacted as part of HB1818. During the senate's consideration of the DISTRICT

Pt.WR!::NC� COUNTY Pl::NNSY LVANIA

bill, Senator Greenwood offered the statement: "The intent of the author of this legislation

and its chief sponsors in this and the other House correctly want to protect shooting

ranges from nuisance suits or from overregulation that would inhibit them from being

enjoyed by their members." 1988 Leg is. J. No. 35, 2225 (emphasis added).

This statement moderately implies that the intent of the legislature was to

immunize organized shooting ranges, rather than to immunize every sportsman who

wants to put up a target in their backyard without limit.

The Court also conducted a review of other states to determine if there were

similar statutes which may have been a reference in the construction of the Pennsylvania

statute. Unfortunately, Pennsylvania adopted its statute in 1988, and of the many other

states which immunize shooting ranges against noise, it appears all comparable statutes

were enacted after that date.

That being said, a review of these statutes indicates broad legislative agreement

among the several states that it would be prudent to protect shooting ranges when they

are properties that are truly designed for shooting sports. The states have different

methods of preserving this limitation. Ohio requires "a facility operated for the purpose of

shooting with firearms or archery equipment.." Ohio R. C. § 1533 .83. Alaska requires

"[a]n area designed and used for rifle shooting ... " Ala. Code§ 6-5-341.13

Given the broad agreement among states to not include all shooters in the

definition of shooting range, as well as the statement of Senator Greenwood at the time

of the Pennsylvania enactment, it is reasonable to infer the intent of the legislature fell

13 53RU See also Brief for Respondent, Lone Pine Hunters' Club, Inc. RESIDENTS DEFENDING THEIR JUDICIAL HOMES, et at., v. LONE PINE HUNTERS' CLUB, INC., Town of Hollis & Town of Hollis Planning Board., DISTRICT 2006 WL 4649234 (N. H.) (providing a helpful listing of many state statutes on this topic)

,WRENCE: COUNTY PENNSYLVANIA

within this broad agreement and did not intend to reach informal backyard shooting

ranges in its protection.

Moreover, the disorderly conduct statute is a noise control law. The immunity

created by Section 4501 provides a carve-out for noise control laws which were extant at

the time of the enactment of 4501. As the disorderly conduct statute was extant at the

time of the passing of 4501, it applies to Defendant.

In any event, Section 4501 should be considered an affirmative defense. The

burden of proof and the burden of persuasion for affirmative defenses rest on the party

raising that defense. Section 4501 's immunity only applies to 'normal ard accepted

shooting activity.' Simpson's case did not present any evidence his behavior fell within

normal and accepted shooting activity. Under any circumstances, it is hard for this court

to imagine it is normal and accepted shooting activity to shoot at 3 AM. on a weeknight

in open-air in an area which has neighboring residential properties. In fact, the testimony

he elicited from John Argiro made clear the normal shooting activity in that area was

confined to daytime hunting. Accordingly, under the facts presented, Simpson's behavior

fell outside the normal and accepted shooting activity of the community in which it

occurred.

The conviction should be affirmed.

53RD JU DIC IA L DISTRICT FlLEO/ORIOINAL �WRENCE COUNTY PENNSYLVANIA ZDi9APR 12 PM 2a 07 15 JQQI_KLA�QN:ES_oioo