Com. v. Darrah, L.

• Court: Superior Court of Pennsylvania
• Decided: November 29, 2021
• Docket: 500 WDA 2021
• Status: Unpublished

Opinion

J-A29042-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LISA MARIE DARRAH : : Appellant : No. 500 WDA 2021

Appeal from the Judgment of Sentence Entered March 9, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014255-2019

BEFORE: BENDER, P.J.E., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: NOVEMBER 29, 2021

Lisa Marie Darrah (Darrah) appeals from the judgment of sentence

imposed in the Court of Common Pleas of Allegheny County (trial court)

following her bench conviction of two counts of harassment and one count of

disorderly conduct1 for her treatment of her neighbors Kelly Keller (Keller) and

Keller’s daughter, Mia Jarnot (Jarnot). On appeal, Darrah challenges the

sufficiency of the evidence supporting her conviction. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2709(a)(4), 5503(a)(3). J-A29042-21

I.

A.

This case arises from a series of incidents in the summer and fall of 2019

during which Darrah shouted obscenities at Keller and Jarnot. Jarnot was 17

years old at the time. The parties reside in a residential neighborhood of 44

houses with 14 single-family homes on their street. Darrah is wheelchair

bound and resides with her mother next door to Keller.

B.

At Darrah’s February 2021 bench trial, the Commonwealth presented

the testimony of Keller, Jarnot and Officer Thomas Trocki of the West Deer

Township Police Department. Keller testified that during a neighborhood yard

sale on July 14, 2019, at which “there were a lot of people coming and going,”

Darrah “was riding back and forth in front of my driveway and she yelled some

sort of obscenity.” (N.T. Trial, 2/08/21, at 19). Darrah went to a neighboring

home before riding past Keller’s property again while Keller was in her garage

looking at her phone. Darrah accused Keller of videotaping her and yelled

numerous obscenities at Keller, including “fucking bitch” and “filthy cunt.” She

screamed: “You are so fucking ugly, why don’t you put some makeup on.

Pig.” (Id. at 19-20). Keller filed a police report the next morning.

At approximately 6:00 p.m. on July 15, 2019, Darrah yelled graphic

insults to Keller concerning Jarnot as Keller washed her car in her driveway.

Keller testified that Darrah “started commenting about my daughter being

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‘fucking ugly’ and being a ‘whore’ and that she had nudes [photographs] of

my daughter and they were spread all over West Deer.” (Id. at 21). Darrah

shouted these insults while looking directly at Keller from her driveway at a

distance of about 25 to 30 feet away. (Id. at 22). Darrah then sent Keller a

note through Facebook Messenger stating, “Take all the videos you want

honey. I know tons of young men that have naked pictures of your daughter.

Be careful what you wish for. Don’t harass me again. This is your final

warning . . . Little piglet she is. You got to be ashamed of yourself that you

raised a daughter that is so sleazy.” (Id. at 24).

On July 31, 2019, while Keller and Jarnot were on their back patio with

Keller’s husband, Darrah yelled to them from her patio, “You dike-looking fat

bitch. You go down on chicks you are so ugly. You fat dike bitch. And little

dope smoking bitch you got over there like her fat-ass mother. You dike . . .

Do you like men or do you go down on chicks?” (Id. at 26). Keller recorded

the incident using her cell phone.

On October 12, 2019, as Jarnot was preparing to leave for a

homecoming dance, Darrah yelled obscenities at her and Keller. They went

inside of their home to avoid Darrah and Keller called the police. Jarnot called

her friends to pick her up and when they arrived she quickly left in their

vehicle. Officer Trocki arrived at the scene as Darrah was still shouting insults.

Keller testified that from the time of the first incident with Darrah at the yard

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sale in July until the homecoming incident in October, she called the police

four or five times to report Darrah’s conduct.

Jarnot testified regarding a July 30, 2019 incident wherein “a couple of

friends had stopped by my house before I went to volleyball, and I went

outside to talk to them and [Darrah] came outside and started yelling at me,

calling me a ‘fat hoe’ and accused me of doing a drug deal.” (Id. at 43).

Darrah then took a photograph of her “and it circulated to some people, and

then it was sent to a friend of mine in the car, who forwarded it to me.” (Id.).

Jarnot did not respond to Darrah and instead went into her house because she

was “really embarrassed and scared.” (Id.). On July 31, 2019, while she was

on the patio with her mother, Darrah screamed, “You dike-looking fat bitch.

You go down on chicks you are so ugly. You fucking dike bitch.” (Id. at 44).

Darrah also called her a “drug addict” and a “dope smoking little fucking bitch.”

(Id.). Regarding the October 12, 2019 homecoming incident, Jarnot

explained that she was outside her house “about to start taking pictures in my

dress and [Darrah] came outside” and began yelling from her driveway that

Jarnot was a “whore . . . so fucking ugly” she “couldn’t even get a date.”

(Id.). Darrah also asked her if she “liked men or eat pussy.” (Id.). Jarnot

testified that she never responded to Darrah’s insults because she “was just

too afraid to say anything back.” (Id. at 45).

Officer Trocki testified that he took Keller’s report of harassment on July

15, 2019, and that he immediately called Darrah and left a message asking

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her to return the call. Darrah did not return the call but did answer the phone

the next day. The officer described Darrah’s demeaner as “extremely angry

and irritated” as she talked over him during the call. Darrah yelled that she

would call Keller “a fat fucking pig” and other vulgar terms if she wanted to.

(Id. at 48). Darrah referred to Jarnot as a “little slut [who] little boys have

naked pictures of[.]” (Id. at 49). When Officer Trocki advised Darrah not to

continue this conduct, she indicated that she would not comply with this

directive. Officer Trocki was dispatched to the Keller residence on October 12,

2019, and when he arrived, Darrah was in her driveway screaming vulgarities.

The officer directed her to go inside her home.

The defense did not call any witnesses on Darrah’s behalf at trial after

the court conducted a thorough colloquy. The court permitted the parties to

submit briefs on the legal issues involved in the case. On March 9, 2021, the

trial court convicted Darrah of the aforementioned offenses2 and sentenced

her to an aggregate term of two years of probation. This timely appeal

followed. Darrah and the trial court complied with Rule 1925. See Pa.R.A.P.

1925(a)-(b). In its opinion, the court expressly found the testimony of Keller

2 The Disorderly Conduct count was graded as a third-degree misdemeanor instead of a summary offense based on the trial court’s finding that Darrah continued her disparaging conduct despite Officer Trocki’s prior warning that she desist. See 18 Pa.C.S. § 5503(b) (setting forth permissible grading for the offense).

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and Jarnot credible as to Darrah’s derogatory insults and profanity directed at

them. (See Trial Court Opinion, 6/22/21, at 6).

II.

Darrah first contests the sufficiency of the evidence supporting her

conviction of harassment. Darrah characterizes the incidents with Keller and

Jarnot as “merely name-calling during an ongoing dispute with her neighbors

[and] de minimus conduct” falling short of criminal harassment. (Darrah’s

Brief at 12). Darrah also challenges the element of intent by arguing the

evidence did not demonstrate that she had the specific intent to harass, annoy

or alarm either Keller or Jarnot.3

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for a fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence received must be considered. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

(Footnote Continued Next Page)

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The Crimes Code provides in relevant part: “A person commits the

crime of harassment when, with intent to harass, annoy or alarm another, the

person . . . (4) communicates to or about such other person any lewd,

lascivious, threatening or obscene words, language, drawings or

caricatures[.]” 18 Pa.C.S. § 2709(a)(4). “An intent to harass may be inferred

from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d

719, 721 (Pa. Super. 2013) (citation omitted). Additionally, Section 312

provides for dismissal of a case where an infraction is negligible:

§ 312. De minimis infractions

(a) General rule.─The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:

(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;

(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.

Commonwealth v. Williams, 255 A.3d 565, 578-79 (Pa. Super. 2021) (citation omitted).

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18 Pa.C.S. § 312(a)(1)-(3).4 “An offense alleged to be de minimis in nature

should not be dismissed where either harm to the victim or society in fact

occurs.” Toomer, supra at 960 (citation omitted).

In the instant case, the trial court rejected Darrah’s sufficiency challenge

to her harassment conviction, reasoning:

Keller and Jarnot credibly testified to several incidents wherein Appellant shouted vulgar insults at them, degraded their physical appearance, and accused Jarnot of illegal activity and sexual promiscuity. These actions rise above de minimus infractions and establish Appellant’s clear and specific intent to harass, annoy, or alarm Keller and Jarnot. Furthermore, screaming obscenities at Keller and Jarnot, and repeatedly making derogatory comments regarding Jarnot’s sexual promiscuity, satisfy the element of lewd, lascivious, threatening or obscene in this matter.

(Trial Ct. Op., at 6) (quotation marks and case citation omitted).

After review of the record, we agree with the trial court’s assessment.

Contrary to Darrah’s view that the incidents merely amounted to a few

instances of “discourteous” name calling during a “neighborly dispute,” and

that her behavior was not overtly crude or lewd, we disagree. (Darrah’s Brief,

at 10, 18). Instead, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, her verbal abuse of Keller and Jarnot by

4We review a trial court’s finding as to whether an infraction is de minimis for an abuse of discretion. See Commonwealth v. Toomer, 159 A.3d 956, 960 (Pa. Super. 2017).

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attacking their physical appearance and screaming allegations of sexual

promiscuity and drug use was criminal.

Specifically, the evidence demonstrates that Darrah repeatedly shouted

graphic, profane remarks to Keller and Jarnot while they engaged in various

activities on their property, including participating in a neighborhood yard

sale, washing their car, conversing with friends and family and preparing to

take photographs before a high school homecoming dance. Jarnot expressly

testified that she did not respond to Darrah’s insults because she was “really

embarrassed and scared” and “too afraid to say anything back.” (N.T. Trial,

at 43, 45). We agree with the trial court’s conclusion that the record contains

ample evidence establishing that Darrah’s infractions were not simply de

minimus and that she communicated obscene, lewd statements to Keller and

Jarnot with the intent to harass, annoy and/or alarm them. Darrah’s first

issue merits no relief.

III.

Darrah next challenges her conviction of disorderly conduct on two

bases. She first argues the evidence failed to demonstrate that she intended

to cause a public rather than a private disturbance. Darrah maintains that

because she “was on her own private property when she called her neighbors

bad names . . . she did not risk inciting public unrest through her actions.”

(Darrah’s Brief, at 19). Alternatively, Darrah argues the grading of the count

as a misdemeanor of the third degree instead of as a summary offense was

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erroneous where the Commonwealth failed to show that she persisted her

conduct after she received a reasonable warning to desist. Darrah posits that

her brief phone conversation with Officer Trocki three months before her

arrest does not constitute a reasonable warning.

We begin by addressing Darrah’s claim that she did not act with the

intent to create a public disturbance and that she instead “manifested an

intent to cause a private inconvenience to her neighbors.” (Darrah’s Brief, at

23).

The Crimes Code provides: “A person is guilty of disorderly conduct if,

with intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, [s]he: . . . (3) uses obscene language, or makes

an obscene gesture[.]” 18 Pa.C.S. § 5503(a)(3) (emphasis added). The

statute further provides that conduct is considered “public” if it affects or is

likely to affect “persons in a place to which the public or a substantial group

has access”; among these delineated locations are “places of business or

amusement, any neighborhood, or any premises which are open to the

public.” Id. at § 5503(c) (emphasis added).

“Whether a defendant’s words or acts rise to the level of disorderly

conduct hinges upon whether they cause or unjustifiably risk a public

disturbance.” Commonwealth v. Goldman, 252 A.3d 668, 673–74 (Pa.

Super. 2021). The mens rea element of the statute requires proof that an

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appellant by her actions intentionally caused or recklessly created a risk of

causing a public inconvenience, annoyance or alarm. See Commonwealth

v. McConnell, 244 A.3d 44, 51 (Pa. Super. 2020). This applies even if the

appellant’s intent was to send a message to a certain individual rather than

impact the public. See id.

We conclude the “public” element of the Disorderly Conduct statute was

met by Darrah’s repeated shouting at Keller and Jarnot as they engaged in

various outdoor activities in the yard of their home in their neighborhood with

more than a dozen residences on their street. First, the statute specifically

enumerates “any neighborhood” as a public place. Additionally, the evidence

showed that Darrah yelled obscenities at Keller during a yard sale organized

by neighborhood residents open to the public during which “there were a lot

of people coming and going.” (N.T. Trial, at 19). Although Darrah claims she

yelled “bad names” from her private property only, Keller specifically testified

that during the yard sale, Darrah “was riding back and forth in front of my

driveway and she yelled some sort of obscenity.” (Id.) (emphasis added).

Darrah then went to a neighboring home to look at items for sale before she

rode by Keller again while yelling “fucking bitch” and accusing Keller of

videotaping her. (Id.).

In subsequent incidents, Darrah shouted obscenities at Jarnot while she

was talking with her friends outside of her home before a volleyball game and

as she prepared to attend a school homecoming dance. Darrah also took a

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photograph of Jarnot while she was with friends and circulated it to other

individuals who forwarded it to Jarnot’s friend. Darrah made several graphic

derogatory allegations relating to Jarnot’s sexuality by threatening “that she

had nudes of [Jarnot] and they were spread all over West Deer”; and

representing: “I know tons of young men that have naked pictures of

[Jarnot].” (Id. at 21, 24) (emphasis added).

Thus, contrary to Darrah’s assertion, the record shows that this was not

merely a private neighborly dispute. Rather, it reflects that she launched

unprovoked crude slurs at Keller and Jarnot in front of other people while

outside in a residential neighborhood, and that she actively involved other

individuals by taking and circulating at least one photograph of Jarnot while

indicating that she was in possession of other pictures of the minor in a

sexually compromised state and asserting that she knew of many men who

were in possession of these same photographs. Accordingly, Darrah’s first

challenge to her disorderly conduct conviction fails.

We next address Darrah’s contention that the evidence was insufficient

to sustain her conviction of disorderly conduct graded as a third degree

misdemeanor as opposed to a summary offense.5

5 Because the proper grading of a criminal offense is an issue of statutory interpretation implicating the legality of sentence, this issue raises a question of law and our standard of review is de novo and scope of review plenary. See Commonwealth v. Raymond, 233 A.3d 809, 816 (Pa. Super. 2020).

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Section 5503 outlines the permissible grading for the offense of

disorderly conduct:

(b) Grading.─An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense.

18 Pa.C.S. § 5503(b) (emphasis added).

We agree with the trial court’s assessment that grading the offense as

a misdemeanor was entirely appropriate based on Officer Trocki’s testimony

describing his interactions with Darrah. Specifically, he advised Darrah to stop

yelling vulgar statements at Keller and Jarnot immediately after Keller filed

the initial police report in July 2019. Darrah became irate at his request,

yelled over him during their conversation and blatantly stated that she would

not comply with his directive. Officer Trocki then personally observed Darrah

scream obscenities at Keller when he responded to the residence in October

2019. Hence, it is clear that Darrah “persist[ed] in disorderly conduct after

reasonable warning or request to desist.” See 18 Pa.C.S. § 5503(b).

Further, as the statutory requirements are disjunctive, we find that

grading of the offense as a misdemeanor was also appropriate under the first

prong, i.e., upon a showing “the intent of the actor is to cause substantial

harm or serious inconvenience.” Id. The record in this case clearly evidences

Darrah’s intent to cause much more than a serious inconvenience to Keller

and Jarnot when she repeatedly went outside her home for the sole purpose

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of hurling venomous insults concerning their weight, sexual activity and drug

use in the presence of their friends and family, while Jarnot was a minor.

Darrah’s final issue merits no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/29/2021

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