Commonwealth v. N.M.C., 225 WDA 2017

• Decision Date: 23 October 2017
• Docket Number: No. 225 WDA 2017,225 WDA 2017
• Citation: 172 A.3d 1146
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. N.M.C., Appellant
• Court: Pennsylvania Superior Court

172 A.3d 1146

COMMONWEALTH of Pennsylvania, Appellee

v.N.M.C., Appellant

No. 225 WDA 2017

Superior Court of Pennsylvania.

Submitted July 31, 2017.

Filed October 23, 2017

Beau M. Grove, Ridgway, for appellant.

Christine A. Chavez, Assistant District Attorney, Clearfield, for Commonwealth, appellee.

BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.^*

OPINION BY MOULTON, J.:

N.M.C. appeals from the January 6, 2017 judgment of sentence entered in the Clearfield County Court of Common Pleas following his bench trial conviction for disorderly conduct—creates a hazardous or physically offensive condition.¹ Because we conclude that the evidence is insufficient to sustain the conviction, we vacate N.M.C.'s judgment of sentence.

On May 10, 2016, at approximately 1:15 p.m., then–14–year-old N.M.C. used his cell phone to video-record a fight between two other male students that occurred in the boys' bathroom at Dubois Area Middle School. The 45–second video shows two male students talking, squaring off, shoving each other, and throwing several punches. In the background of the video, a male student exposes his buttocks to the camera and another is standing at a urinal behind a divider. That evening after school, N.M.C. sent the video via text message to his girlfriend and one other student. On May 11, 2016, a third student asked N.M.C. if he could see the video, but N.M.C. refused to show it to him.

On May 11, 2016, the assistant principal, Michael Maholtz, learned of the fight. Maholtz confronted the combatants and eyewitnesses to the fight, who did not tell Maholtz the truth about the altercation. After these interviews, Maholtz received a copy of the video from N.M.C.'s girlfriend. The video helped Maholtz identify the participants as well as other students present for the fight,² and Maholtz subsequently conducted additional interviews. When first interviewed, N.M.C. admitted that he witnessed the fight but did not reveal that he had taken a video. Shortly thereafter, N.M.C. provided a second statement, in which he admitted to recording the fight.

N.M.C. was cited for disorderly conduct—creates a hazardous or physically offensive condition. On August 15, 2016, a magisterial district judge held a summary trial and found N.M.C. guilty. On September 7, 2016, N.M.C. appealed to the court of common pleas.

On January 6, 2017, the trial court held a de novo trial. At trial, Assistant Principal Maholtz testified that he was alarmed because the fight occurred in a restroom where there are "many safety hazards" and that there had been a "rash of these incidents prior to this one." N.T., 1/6/17, at 10. Maholtz also testified that this was the first such incident that had been video-recorded, that it was not common to see students video-record fights, and that the administration was attempting to "prevent these [incidents] from happening due to the national trend." Id. at 16–17.

N.M.C. testified in his own defense. He stated that went to the restroom to watch the fight, that he had not planned in advance to record the fight, that he did not publish the video on social media, and that he did not intend to cause or promote more fights. Id. at 20–21. When asked why he had recorded the fight, N.M.C. said he wanted to have evidence that he was not fighting. Id. at 23. He further stated that he text-messaged the video only to his girlfriend and to one other student, id., and that he did not show the video to anyone else. Id. at 24, 26.

N.M.C. also presented the testimony of one of the participants, who stated that he did not know the fight was being recorded, that he did not tell anyone he was going to fight the other student, and that N.M.C. entered the bathroom right before the other combatant entered. Id. at 29–31.

In closing, N.M.C.'s counsel argued that the Commonwealth had failed to prove the creation of a hazardous or physically offensive condition. Id. at 32–33. The Commonwealth's closing argument was as follows:

This case is very straight[-]forward. I don't think there is much of dispute about what happened in this case. For me personally, I can see why this type of behavior shouldn't be tolerated.

I can see why it does create a hazardous condition. It encourages fighting. It promotes fighting. It encourages these videos to be spread around and kids to be embarrassed by this type of behavior, like maybe getting beat up in the video or something like that and having it posted online or in text messages like in this case, I think it entices individuals to get in fights. It makes them look tough. And that's why, I guess, overall, I would ask the Court to find [N.M.C.] guilty here today.

Id. at 33.

At the conclusion of the trial, the trial court found N.M.C. guilty:

Okay. Well, it has been a long time since I have been in high school. I suppose back at that time, if there is a fight, yeah, I suppose a lot of people wanted to go see the fight.

Of course, as we get older and wiser, then we realize where there is a fight, you want to go the other direction as fast as you possibly can.

All that being said, I think the Commonwealth has proven its case. I think he is guilty of the disorderly conduct section.

Id. at 33–34. The trial court sentenced N.M.C. to 90 days' probation, 35 hours of community service, and ordered N.M.C. to pay a $100 fine and court costs.³ On February 3, 2017, N.M.C. timely filed a notice of appeal.

N.M.C.'s sole issue on appeal is:

Whether the lower court erred in finding [N.M.C.] guilty of disorderly conduct and that the Commonwealth presented sufficient evidence to prove the same when it[ ] determined that by sharing a video of the fight[, N.M.C.] committed an act that created a hazardous or physically offensive condition; that sending of the video to two other teenagers recklessly created a risk of public annoyance or alarm; and that the video served no legitimate purpose?

N.M.C.'s Br. at 5 (full capitalization and trial court answer omitted).

N.M.C. argues that the evidence was insufficient to convict him of disorderly conduct—creates a hazardous or physically offensive condition. According to N.M.C., the Commonwealth failed to prove that N.M.C.'s acts of recording the fight and sending it to two people created a hazardous or physically offensive condition because "he did not do any acts which could be construed as ‘public unruliness' which could or did lead to ‘tumult and disorder.’ " N.M.C.'s Br. at 14. N.M.C. asserts that "the Commonwealth presented absolutely no evidence that sending the video of a fight to two (2) individuals would incite danger or that this type of behavior tends to encourage or promote physical violence." Id. at 15. In addition, N.M.C. contends that the Commonwealth presented no evidence that N.M.C. sent words in those messages that would "encourage and incite violence," that the combatants in the fight "were motivated by seeing a similar video," or that possible dissemination of the video led the combatants to fight. Id. Finally, N.M.C. contends that he did not create a "physically offensive condition" because his actions were not "direct assaults on the physical senses of members of the public." Id. at 16. We agree.

Our standard of review for a sufficiency of the evidence claim is as follows:

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. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012) ).

Pennsylvania's disorderly conduct statute provides as follows:

(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. § 5503(a).⁴ We have defined the relevant terms of subsection(a)(4) as follows: "A ‘hazardous condition’ is a condition that involves danger or risk[,]" particularly of "injuries resulting from public disorders." Commonwealth v. Williams, 394 Pa.Super. 90, 574 A.2d 1161, 1164 (1990). "Although a precise definition of ‘physically offensive condition’ is elusive, this term encompasses direct assaults on the physical senses of members of the public." Id.

The issue in this case is whether N.M.C. created a hazardous condition or a physically offensive condition by video recording the incident and disseminating the video to two other students. Based on our review of the record and the prosecution's theory of the case, the basis for the trial court's decision was that N.M.C. created a hazardous condition by text messaging the video to two students, because the video could have been further disseminated to other students and thereby encourage future fighting. There are only a handful of cases addressing the "hazardous or physically offensive condition" element of subsection 5503(a)(4),...