Com. v. Maerz

• Decision Date: 20 July 2005
• Citation: 879 A.2d 1267
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Lieselotte C. MAERZ, Appellant.

879 A.2d 1267

COMMONWEALTH of Pennsylvania, Appellee, v. Lieselotte C. MAERZ, Appellant.

Superior Court of Pennsylvania.

Argued March 16, 2005.

Filed July 20, 2005.

John H. May, Lancaster, for appellant.

Alina L. Andreoli, Assistant District Attorney, Lancaster, for Commonwealth.

Before: STEVENS, BOWES, and McCAFFERY, JJ.

OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Lancaster County, which convicted Appellant of Summary Disorderly Conduct for unreasonable noise, 18 Pa.C.S.A. § 5503(a)(2). Appellant raises a sufficiency of the evidence challenge to her conviction. We vacate.

¶ 2 70 year old Lieselotte Maerz (Appellant) was cited for summary "disorderly conduct — unreasonable noise" for yelling across the street at her neighbor, Jay Skowronek, at 9:45 p.m. on a December night. Believing that Skowronek was flashing a light on her home, Appellant had come out onto her porch and shouted "[y]ou goddamn, motherfucking son of a bitch, what the hell are you doing, get that light off my house" at Skowronek, who was walking his dog at night with the aid of a flashlight.

¶ 3 Appellant immediately retreated into her home and phoned police to complain that Skowronek was drunk and shining a light on her house. The responding police officer interviewed both Appellant and Skowronek separately, and he credited Skowronek's account of his own conduct — that he had accidentally shone the flashlight on Appellant's home. Accordingly, the officer cited Appellant with disorderly conduct for her outburst.

¶ 4 Appellant pled not guilty to the citation, but was found guilty by the district justice, who fined her $50 and imposed court costs of $117. A trial de novo in the Court of Common Pleas also resulted in a guilty verdict. In its Pa.R.A.P.1925(a) opinion, the court reasoned:

Based on these facts, the [Trial] Court found Maerz guilty of disorderly conduct. The [Trial] Court found that while in the public place of her neighborhood, Maerz yelled profanities across the street and in doing so recklessly created a risk of public inconvenience and annoyance.

* * *

The [Trial] Court found the Skowroneks to be credible and found that Maerz did yell profanities across the street in a loud voice creating an unreasonable noise. In defense, Maerz argued that because few neighbors were home that night, she did not have the intent to cause public inconvenience, annoyance or alarm. However, the Skowroneks were clearly home and had the right not to be inconvenienced, annoyed, or alarmed because of a neighbor yelling profanities across the street. The [Trial] Court found that Maerz recklessly created the risk of public inconvenience and annoyance and did so by making an unreasonable noise.

Trial Court Opinion 10/28/04 at 2-3. The court reinstated fines and costs originally imposed by the district justice. This appeal followed.

¶ 5 Appellant raises one issue for our review, namely, whether her nighttime outburst directed at a neighbor across the street constituted "unreasonable noise" as proscribed by the Disorderly Conduct statute. We find that her outburst did not.

¶ 6 In reviewing a sufficiency of the evidence claim, we must determine whether the evidence, and all reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Johnson, 556 Pa. 216, 223, 727 A.2d 1089, 1092 (1999). While we are not free to substitute our view of the evidence for the factual findings of the trial court, we as an appellate court are authorized, indeed required, to use a plenary scope of review in determining the validity of the legal conclusions made by the trial court. In the Interest of Barry W., 423 Pa.Super. 549, 621 A.2d 669, 672 (1993).

¶ 7 Appellant was charged and convicted of summary Disorderly Conduct, 18 Pa.C.S. § 5503(a)(2), which provides:

(a) offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or creating a risk thereof, he:

...

(2) makes unreasonable noise.

18 Pa.C.S. § 5503(a)(2). "The offense of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people; it is not to be used as a dragnet for all the irritations which breed in the ferment of a community. It has a specific purpose; it has a definite objective, it is intended to preserve the public peace." Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999).

¶ 8 "The mens rea requirement of Section 5503 demands proof that appellant by her actions intentionally or recklessly created a risk [of causing] or caused a public inconvenience, annoyance or alarm." Commonwealth v. Gilbert, 449 Pa.Super. 450, 674 A.2d 284 (1996). The specific intent requirement of this statute "may be met by a showing of a reckless disregard of the risk of public inconvenience," annoyance, or alarm, even if the appellant's intent was to send a message to a certain individual, rather than to cause public inconvenience, annoyance, or alarm. See Commonwealth v. Kidd, 296 Pa.Super. 393, 442 A.2d 826 (1982).

¶ 9 In disorderly cases based on one's making unreasonable noise, this Court has looked to language content only to infer whether the speaker intended to cause public annoyance, alarm, etc. Ultimately, however, what constitutes the actus reus of "unreasonable noise" under the disorderly conduct statute is determined solely by the volume of the speech, not by its content.

¶ 10 For example, in Commonwealth v. Gilbert, 449 Pa.Super. 450, 674 A.2d 284, 286-287 (1996), this Court rejected the sufficiency of evidence as to both intent to cause public annoyance and noise level. Interestingly, in the step one analysis of inferring culpable intent, the Court acknowledged a line of cases that have considered language content, i.e., whether the language was abusive or offensive, and whether it was coupled with aggressive actions in a turbulent environment. Gilbert, 674 A.2d at 286 (comparing Commonwealth v. DeLuca, 528 Pa. 290, 597 A.2d 1121 (1991)) (intent to cause public inconvenience found in defendant's loud, abusive, and obscene language directed at officer amid unruly crowd at stabbing scene, coupled with defendant's knocking away officer's hands). It found no intent in defendant Gilbert's public and vocal disagreement with a police officer who had ordered a neighbor's car to be towed. "Intent cannot be inferred from the officer's annoyance with appellant for disagreeing with him and for shouting his disagreement to his neighbor." Gilbert, 674 A.2d at 287. This finding, alone, reversed the conviction.

¶ 11 This Court nevertheless performed a step two analysis of determining whether Mr. Gilbert had actually been unreasonably noisy. Here, we stressed that content of Mr. Gilbert's language was irrelevant, stating that "the prohibition against unreasonable noise is directed at volume of speech not its content." Gilbert, 674 A.2d at 287 (quoting Model Penal Code and Commentaries § 250.2 commentary at 346 (Official Draft and Revised Comments 1980)).¹

¶ 12 Under this test, we found no evidence that Mr. Gilbert was "especially loud." Id. "Pennsylvania law defines unreasonable noise as `not fitting or proper in respect to the conventional standards of organized society or a legally constituted community.'" Id. (citations omitted). The Officer said that half the neighborhood came out to view the verbal "ruckus," but we specifically held that there was "no evidence ... that the level of noise was inconsistent with neighborhood tolerance or standards." Id. (emphasis added).

¶ 13 Similarly, in an earlier case, Commonwealth v. Gowan, 399 Pa.Super. 477, 582 A.2d 879 (1990), this Court found that religious speakers in a park had been charged more for the content of their speech and for their appearance than for the actual noise they produced. Mere annoyance to the public on the basis of content, we held, is not enough to support an (a)(2) citation.

¶ 14 While Gilbert and Gowan are not factually identical to the present case because they did not involve personally insulting or offensive language directed at an ordinary citizen, their holdings that language content is relevant only to the step-one intent inquiry clearly apply. The second step of determining whether there was actually "unreasonable noise" may not be made by considering the content of language.

¶ 15 Accepting all findings of fact made by the trial court, and viewing such facts and inferences therefrom in a light most favorable to the Commonwealth as verdict winner, we nevertheless find insufficient evidence to establish that Appellant caused unreasonable noise as proscribed under the disorderly conduct statute. First, the undisputed fact that the Skowroneks were justifiably annoyed and irritated by Appellant's very loud and vile vocal outburst cannot, alone, create the inference that Appellant intended to cause or risk a public inconvenience under the law. Appellant stood 50 feet away from Mr. Skowronek when she yelled at him, her outburst contained no threats and actually expressed a desire to be left alone (...