Com. v. Darrah, L.

• Court: Superior Court of Pennsylvania
• Decided: January 30, 2025
• Docket: 1277 WDA 2023
• Status: Unpublished

Opinion

J-A22022-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LISA MARIE DARRAH : : Appellant : No. 1277 WDA 2023

Appeal from the Judgment of Sentence Entered September 21, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004200-2022

BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: January 30, 2025

Lisa Marie Darrah appeals from the judgment of sentence entered

following her convictions for terroristic threats and disorderly conduct.1 She

challenges the sufficiency of the evidence. We affirm in part and reverse in

part.

The evidence at Darrah’s bench trial was as follows. Sergeant Darren

Mikus testified that he arrived at Darrah’s home on March 24, 2022, around

5:30 p.m. to respond to a “verbal domestic” call. N.T., Trial, 8/14/23, at 18.

There, Darrah told him that she wanted her son arrested. He described Darrah

as “very upset” and “irate,” and said that she was threatening her son and

father. Id. Sergeant Mikus said he believed that Darrah was experiencing

withdrawal from an unspecified substance. Id. After advising Darrah’s father

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1 18 Pa.C.S.A. §§ 2706(a)(1) and 5503(a)(4), respectively. J-A22022-24

to contact Darrah’s social worker, Sergeant Mikus left. He returned to Darrah’s

home for another “verbal domestic” call later the same day, around 7:00 or

7:30 p.m. Id. at 20. Emergency medical technicians (“EMTs”) and an

ambulance were at the scene. Id. at 25. The EMTs gave a sedative to Darrah

to help them get her onto a stretcher, take her out of the house, and put her

in an ambulance to be taken for an involuntary commitment. Id. at 20, 25.

On her way to the ambulance, Darrah looked at her neighbor’s house

and yelled, “[T]he whore, the whore, the whore next door.” Id. at 20.

Sergeant Mikus testified that Darrah called her neighbor “different names” and

“point[ed] in [their] direction, like looking at the house saying bad names,

[c]-u-n-t, whore, things like that.” Id. Darrah threatened to burn her

neighbor’s house down, saying, “[W]hen I get back I’m going to kill you. I’m

going to burn your house down. I fucking hate you.” Id. at 22. The distance

between Darrah’s home and the neighbor’s home was about 60 feet. Id. at

26. Sergeant Mikus testified that Darrah was yelling very loudly. Id. at 28.

Sergeant Mikus said it took “thirty seconds, a minute[,] [u]nder a minute” to

remove Darrah from her house and place her in the ambulance. Id. at 26.

Darrah’s neighbor, Kelly Keller, told the sergeant that she heard what Darrah

had said and that she wanted to press charges. Id. at 21.

Keller testified that on the day of the incident, she heard Darrah say,

“I’m going to kill the fucking bitch and burn her house down.” Id. at 31-32.

She also heard Darrah being asked whom she was talking to, and Darrah

responded, “[T]he fucking bitch next door, Kelly.” Id. at 32. Keller stated that

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while Darrah was yelling outside, Keller’s neighbors were texting her and

“telling me to make sure I went out and told the police what [Darrah] was

saying[.]” Id. at 33. She testified that her neighbors “were concerned for my

safety and I was concerned for my safety as well as my family.” Id. Keller

also explained that she had a “no contact order” against Darrah due to

“[Darrah’s] previous harassment towards myself and my daughter.” Id. at 32-

33.

The court found both witnesses credible. It rendered verdicts of guilty

for terroristic threats and disorderly conduct. The court sentenced Darrah to

concurrent terms of reporting probation, one year for disorderly conduct and

five years for terroristic threats. This timely appeal followed.

Darrah raises the following issues:

I. Was the evidence [] insufficient to sustain the conviction at Count 8 – Disorderly Conduct because the Commonwealth did not prove, beyond a reasonable doubt, that Ms. Darrah created a hazardous or physically offensive condition?

II. Was the evidence [] insufficient to sustain the disorderly conduct conviction as a third-degree misdemeanor as the Commonwealth failed to prove that Ms. Darrah intended to cause substantial harm or serious inconvenience or that she persisted after reasonable warning to desist?

III. Was the evidence [] insufficient to sustain the conviction at Count 3 – terroristic threats because the Commonwealth did not prove, beyond a reasonable doubt, that Ms. Darrah intended to ter[r]orize Keller?

Darrah’s Br. at 5 (suggested answers omitted).

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Each of Darrah’s issues challenges the sufficiency of the evidence. “A

claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). When reviewing

such a challenge, we must “determine whether, when viewed in the light most

favorable to the verdict winner, the evidence at trial and all reasonable

inferences therefrom [were] sufficient for the trier of fact to find that each

element of the crime charged is established beyond a reasonable doubt.”

Commonwealth v. Dix, 207 A.3d 383, 390 (Pa.Super. 2019). The

Commonwealth may sustain its burden with wholly circumstantial evidence.

See id.

Darrah argues that there was insufficient evidence to support her

conviction for disorderly conduct under the subsection under which she was

charged, Section 5503(a)(4). She alleges that her conduct “did not lead to

tumult [and] disorder” and was “neither hazardous [n]or physically offensive.”

Darrah’s Br. at 15 (quoting Commonwealth v. Hock, 728 A.2d 943, 946

(Pa.Super. 1999), and 18 Pa.C.S.A. § 5503(a)(4)) (internal quotation marks

omitted). She asserts that she did not create a hazardous condition because

her actions “did not create a risk of ‘injuries resulting from public [disorder].’”

Id. at 16 (quoting Commonwealth v. Fisher, 303 A.3d 1078, 1083

(Pa.Super. 2003)). While she admits that she “allegedly” said she would kill

Keller when she got back, Darrah asserts that “the surrounding circumstances

showed that she was experiencing a mental-health crisis and being taken to a

hospital for involuntary commitment.” Id. at 17-18. Darrah points out that

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she was “in a stretcher, sedated and under the care of numerous

professionals” and that the encounter lasted less than a minute. Id. at 13, 18.

She contends that while her words might have been morally offensive, they

did not create a physically offensive condition.

The court found Darrah guilty under Section 5503(a)(4), which requires

evidence that Darrah “create[d] a hazardous or physically offensive condition

by any act which serves no legitimate purpose of the actor.” 18 Pa.C.S.A. §

5503(a)(4). To sustain the conviction, the Commonwealth had to prove that

Darrah “created either a hazardous condition or a physically offensive

condition, not both.” Commonwealth v. Coniker, 290 A.3d 725, 735

(Pa.Super. 2023). The goal of the disorderly conduct statute is “to protect the

public” but it “is not intended as a catchall for every act which annoys or

disturbs people[.]” Commonwealth v. Mauz, 122 A.3d 1039, 1041

(Pa.Super. 2015). “The cardinal feature of the crime of disorderly conduct is

public unruliness which can or does lead to tumult and disorder.” Hock, 728

A.2d at 946 (citation omitted).

A condition is hazardous where “it involves danger or risk of the

possibility of injuries resulting from public disorders.” Coniker, 290 A.3d at

735 (cleaned up). A physically offensive condition occurs when there is a direct

assault “on the physical senses of members of the public[.]” Id. (quoting

Commonwealth v. McConnell, 244 A.3d 44, 49 (Pa.Super. 2020)). “A

defendant may create such a condition if she sets off a ‘stink bomb’, strews

rotting garbage in public places, or shines blinding lights in the eyes of others.”

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Commonwealth v. Williams, 574 A.2d 1161, 1164 (Pa.Super. 1990)

(citation omitted). A physically offensive condition may also occur where “a

defendant invades the physical privacy of another person.” Id.; see

Commonwealth v. Young, 535 A.2d 1141, 1142-43 (Pa.Super. 1988)

(concluding appellant, who was a male, created physically offensive condition

by entering the stall in a female bathroom where a woman was in the stall).

However, “[c]onduct that is merely morally offensive but does not affect the

physical senses of another does not rise to the level of disorderly conduct.”

McConnell, 244 A.3d at 49; see Commonwealth v. N.M.C., 172 A.3d 1146,

1152 (Pa.Super. 2017) (concluding evidence was insufficient for disorderly

conduct; defendant’s sharing of a video recording of students fighting might

have been morally offensive but was not “as physically offensive as set[ting]

off a stink bomb, strew[ing] rotten garbage in public places, or shin[ing]

blinding lights in the eyes of others”) (internal quotation marks, emphasis,

and citation omitted) (alteration in original).

Viewing the evidence in the light most favorable to the Commonwealth,

the evidence failed to establish that Darrah created a hazardous or physically

offensive condition. The record does not reflect that Darrah’s conduct involved

danger or a risk of injuries from a public disorder. Coniker, 290 A.3d at 735.

Notably, when Darrah was yelling at and threatening her neighbor, Darrah

was on a stretcher, under sedation, and being wheeled to the ambulance so

she could be taken for an involuntary commitment. The entire episode lasted

only 30 seconds to a minute. Furthermore, the evidence failed to show that

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Darrah’s conduct directly assaulted the physical senses of members of the

public. Id. While the record shows that Keller’s neighbors were concerned

about Darrah’s behavior and began texting Keller to contact the police, the

record does not reflect that Darrah invaded Keller or her other neighbors’

physical privacy, much less that she created a physically offensive condition.

See Williams, 574 A.2d at 1164; Mauz, 122 A.3d at 1043 (concluding

evidence was insufficient to prove disorderly conduct where appellant made

brief offensive remarks about neighbor while standing at his neighbor’s fence;

appellant returned to his home after making remarks, and appellant did not

invade neighbor’s physical privacy).

Mindful that “[t]he cardinal feature of the crime of disorderly conduct is

public unruliness which can or does lead to tumult and disorder,” we reverse

the disorderly conduct conviction. Hock, 728 A.2d at 946 (citation omitted).

Darrah’s behavior may have been morally offensive, but we cannot say that it

rose to the level of creating a hazardous or physically offensive condition as

required under Section 5503(a)(4). See Williams, 574 A.2d at 1165

(concluding appellant did not create physically offensive condition where

appellant was seen by neighbor in residential parking lot in a t-shirt and

underwear and noting that “the idea of wearing underwear in public may be

morally offensive” but “is no more physically offensive than the sight of a

person dressed in other eccentric costumes”) (emphasis in original); But see

McConnell, 244 A.3d at 50-51 (finding sufficient evidence that appellant

created a physically offensive condition where appellant shined “eight

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construction-grade floodlights towards his neighbors,” police received several

complaints from neighbors in the area, and appellant left lights on for

approximately two hours); Commonwealth v. Troy, 832 A.2d 1089, 1093

(Pa.Super. 2003) (finding evidence sufficient where appellant sent “a package

of wet, leaky garbage through the mail,” which could have affected persons in

the public areas of the post office); Commonwealth v. Roth, 531 A.2d 1133,

1137-38 (Pa.Super. 1987) (finding evidence sufficient where appellant and

more than 20 individuals tried to enter a church “in which they were adamantly

unwelcome” creating “a dangerous situation in which altercations between the

demonstrators and Church members could have occurred”).

Since we conclude that Darrah’s first claim has merit, we do not address

her second claim regarding the grading of the offense.

In her final issue, Darrah claims that the evidence was insufficient to

sustain her conviction for terroristic threats. She argues that the

Commonwealth did not show that her remarks “seriously impair[ed] personal

security or public inconvenience.” Darrah’s Br. at 35 (quoting 18 Pa.C.S.A. §

2706, comment). Darrah maintains that her comments were “mere spur-of-

the-moment threats” and alleges that “Keller could not have credibly thought

that her security was seriously impaired.” Id. at 35, 36. She claims that she

did not intend to terrorize Keller but instead “was merely running her mouth

during a mental-health crisis” and “merely expressed transitory anger.” Id. at

36, 38. Darrah relies on Commonwealth v. Kidd, 442 A.2d 826 (Pa.Super.

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1982), and Commonwealth v. Sullivan, 409 A.2d 888 (Pa.Super. 1979), in

support of her claim.

The crime of terroristic threats occurs when “[a] person communicates,

either directly or indirectly, a threat to . . . commit any crime of violence with

intent terrorize another[.]” 18 Pa.C.S.A. § 2706(a)(1). Thus, “the

Commonwealth must prove that the defendant 1) made a threat to commit a

crime of violence and 2) the threat was communicated with the intent to

terrorize another.” Commonwealth v. Campbell, 253 A.3d 346, 348

(Pa.Super. 2021). A person’s “present ability to inflict harm is not required as

an element of this offense.” Kidd, 442 A.2d at 827. Additionally, the belief of

the threatened person that the threat will be carried out is not an element of

the crime. See Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.Super.

2003).

“The purpose of th[is] section is to impose criminal liability on persons

who make threats which seriously impair personal security or public

convenience. It is not intended by this section to penalize mere spur-of-the-

moment threats which result from anger.” 18 Pa.C.S.A. § 2706, comment.

“However, being angry does not render a person incapable of forming the

intent to terrorize.” Reynolds, 835 A.2d at 730 (cleaned up). We “must

consider the totality of circumstances to determine whether the threat was a

result of a heated verbal exchange or confrontation.” Id. (citation omitted).

Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, we conclude that the evidence sufficiently established the

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crime of terroristic threats. Darrah threatened to kill Keller and burn her house

down. Furthermore, Keller’s subjective belief of that Darrah would or would

not carry out her threat, and Darrah’s present ability to inflict harm, are not

elements. Reynolds, 835 A.2d at 730; Kidd, 442 A.2d at 827. While Darrah

contends that like the appellants in Kidd and Sullivan, she too expressed

transitory anger, being angry did not render her incapable of forming the

intent to terrorize. Reynolds, 835 A.2d at 730.

In Kidd, after being arrested for public intoxication, the appellant “told

the police he was going to kill them, machine gun them, if given a chance.”

442 A.2d at 827. In Sullivan, the appellant called the state police and asked

that a state police officer be sent to his home due to the appellant’s father

being assaulted by a county sheriff. Before an officer arrived, the appellant

called the state police again and said, “If you don’t want to send anybody

down here, I have a .30-30 rifle and I’ll come up there and blow that son of

bitch’s head off.” Sullivan, 409 A.2d at 888-89. The following day, the

appellant and the county sheriff ran into each other and a “loud shouting

match ensued.” Id. at 889. During this encounter, the appellant threatened

to kill the sheriff. Id.

In both Kidd and Sullivan, this Court found insufficient evidence to

prove terroristic threats. In Kidd, we determined that the evidence showed

that Kidd’s action “expressed transitory anger rather than a settled purpose

to carry out the threat or to terrorize the other person.” 442 A.2d at 827. We

also pointed out that Kidd “was obviously inebriated and in an agitated and

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angry state of mind.” Id. (noting emergency room personnel testified and

“interpreted [Kidd’s] emotional state as one of anger”). In Sullivan, we

determined that the evidence failed to show that Sullivan “had any intention

of carrying out the threat” and that he made the threat in “an agitated and

angry state of mind.” 409 A.2d at 888, 889 (noting trooper testimony that

“[Sullivan] had been very angry”).

Looking at the totality of the circumstances, unlike the appellants’

actions in Kidd and Sullivan, Darrah’s comments were not the result of a

heated verbal exchange or confrontation with her neighbor.

We reverse Darrah’s disorderly conduct conviction and affirm in all other

respects. We do not remand for resentencing because the court’s sentencing

scheme - concurrent probationary sentences of one year for disorderly

conduct and five years for terroristic threats – has not been upset. See

Commonwealth v. James, 297 A.3d 755, 770 (Pa.Super. 2023).

Judgment of sentence affirmed in part and reversed in part.

1/30/2025

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