Com. v. Brandt, D.

• Court: Superior Court of Pennsylvania
• Decided: October 16, 2018
• Docket: 1934 MDA 2017
• Status: Unpublished

Opinion

J-S32003-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAWN BRANDT : : Appellant : No. 1934 MDA 2017

Appeal from the Judgment of Sentence November 15, 2017 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-SA-0000047-2017

BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 16, 2018

Dawn Brandt appeals pro se from the judgment of sentence imposed

following her conviction for disorderly conduct towards a police officer, a

summary offense, Lebanon City Ord. § 705.025(a). We affirm.

On May 30, 2017, Police Officer Enoc Ayala, of the Lebanon City Police

Department, responded to Denise Nardo’s residence following a complaint that

her next-door neighbor, Brandt, was throwing trash from the rear of her

property onto a public street. See N.T., Summary Trial, 11/15/17, at 16-17.

After viewing video footage taken from Nardo’s surveillance camera, which

appeared to corroborate Nardo’s claim, Officer Ayala approached Brandt to

question her concerning her alleged actions. See id., at 17. However, before

Officer Ayala could ask Brandt anything, she began cursing and complaining ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S32003-18

about a van parked on her street. See id., at 18. Once Officer Ayala was able

to ask Brandt about Nardo’s allegation, Brandt used the term “motherfucker,”

stated that Nardo was “fucking lying,” and directed a racial slur at Officer

Ayala—calling him “a spic.” Id.

Based upon this unpleasant interaction, a Non-Traffic Citation, No.

R1464822-2, was filed against Brandt, charging her with the summary offense

of disorderly conduct towards a police officer, as well as the summary offense

of littering, Lebanon City Ord. § 709.01. A hearing was held in the Magisterial

District Court, after which Brandt was found guilty of both summary offenses

and ordered to pay fines.

Following the filing of a timely summary appeal, a bench trial was held

before the Lebanon County Court of Common Pleas. Officer Ayala and Nardo

both testified at the bench trial. Officer Ayala testified as to Brandt’s cursing

and racial slurs, and Nardo, who witnessed the exchange between Officer

Ayala and Brandt, corroborated his version of events. See N.T., Summary

Trial, 11/15/17, at 4-6. Brandt did not testify on her own behalf. The trial

court found Brandt guilty of disorderly conduct towards a police officer, not

guilty of littering, and imposed a fine of $100, plus court costs. This timely

appeal follows.

On appeal, Brandt raises several, convoluted challenges to her

conviction. Her statement of questions lists six unnumbered questions for our

review; however, her argument section is not divided into six parts. See

Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there

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are questions to be argued[.]”) In attempting to discern the exact issues

raised by Brandt, we have distilled her claims into three questions for our

review.

First, Brandt contends that her conviction for disorderly conduct cannot

stand because there was no proof that she used “fighting words” against

Officer Ayala. Brandt then raises several challenges to the trial court’s

credibility determinations. And, finally, Brandt challenges the

Commonwealth’s failure to call a witness during the bench trial.1

Our standard of review from an appeal of a summary conviction following de novo trial is whether there was an error of law or whether the findings of the court are supported by the record. The trial court’s verdict will only be disturbed if there was a manifest abuse of discretion. Commonwealth v. Akinsanmi, 55 A.3d 539, 540 (Pa. Super. 2012)

(internal citations omitted).

Brandt first asserts that because her statements towards Officer Ayala

did not constitute “fighting words,” her conviction for disorderly conduct

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1 Brandt also purports to challenge the validity of Lebanon City’s disorderly conduct towards a police officer ordinance, as she contends it is “overbroad and vague.” Appellant’s Brief, at 3b. However, Brandt did not include this claim in her Rule 1925(b) statement. See Defendant’s Concise Statement of Errors Complained of on Appeal, 1/3/18. Therefore, she has waived the issue on appeal. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that any issues not raised in a 1925(b) statement will be deemed waived).

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cannot stand.2 Fighting words are “[words] which by their very utterance inflict

injury or tend to incite an immediate breach of the peace.” Commonwealth

v. Mastrangelo, 414 A.2d 54, 58 (Pa. 1980). This Court has held that a

person can be convicted of disorderly conduct under the Crimes Code by

uttering “fighting words.” Commonwealth v. Reynolds, 835 A.2d 720, 730-

831 (Pa. Super. 2003).

However, while Brandt is correct in noting that “fighting words” can lead

to a conviction of disorderly conduct under the Crimes Code, this is not the

only way spoken words can lead to a disorderly conduct conviction. See

Commonwealth v. Pringle, 450 A.2d 103, 105-106 (Pa. Super. 1982) (“[I]t

is well-settled in our Commonwealth that one may be convicted of disorderly

conduct for engaging in the activity of shouting profane names and insults a

police officers on a public street while the officers attempt to carry out their

lawful duties.”)

2 In her statement of questions, Brandt alleges that her “First Amendment right of freedom of speech was not addressed by the … Court of Common Pleas.” Appellant’s Brief, at 3a (unnecessary capitalization omitted). However, Brandt does not present any argument related to the First Amendment to the United States Constitution or her right to freedom of speech in the argument section of her brief. Instead, she focuses her argument on whether or not her conviction can stand without a finding that her statements constituted “fighting words.” Id., at 7a-7b. Therefore, we have confined our analysis to the actual issue Brandt has presented for our review.

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In any event, Brandt was not even convicted of disorderly conduct under

the Crimes Code. Instead, her conviction fell under the Lebanon City

Ordinance, which provides as follows:

Disorderly conduct towards a police officer is defined as follows:

(a) By violent, tumultuous, or obstreperous conduct or carriage, or by loud or unusual noises, or by abusive language which disturbs any police officer in the discharge of his/her duty.

Lebanon City Ord. § 705.025(a).

The Lebanon City Ordinance does not require that “fighting words” be

uttered for a conviction under the ordinance. Rather, it requires an individual

utter “abusive language which disturbs any police officer.” The trial court

clearly found that referring to Officer Ayala as “a spic” constituted abusive

language that disturbed Officer Ayala in the discharge of his duty. See Trial

Court Opinion, 2/8/18, at 4-5. The record supports this finding. Therefore, we

will not disturb Brandt’s conviction on this basis.

In the remaining pages of her argument, Brandt sets forth her

challenges to the trial court’s credibility determinations and the

Commonwealth’s failure to call a witness, but without reference to any type

of legal authority or law. Brandt instead devotes her argument to attacks on

Nardo’s character and conclusory arguments that she alleges should result in

this Court vacating her conviction. “[A]s Appellant has cited no legal

authorities nor developed any meaningful analysis, we find [these issues]

waived for lack of development.” Commonwealth v. Antidormi, 84 A.3d

736, 754 (Pa. Super. 2014).

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/16/2018

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