Com. v. K.B.M.

• Court: Superior Court of Pennsylvania
• Decided: July 15, 2024
• Docket: 1325 EDA 2023
• Status: Unpublished

Opinion

J-S11011-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : K.B.M. : : Appellant : No. 1325 EDA 2023

Appeal from the Judgment of Sentence Entered April 17, 2023 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-SA-0000023-2023

BEFORE: BOWES, J., McLAUGHLIN, J., and COLINS, J. *

MEMORANDUM BY BOWES, J.: FILED JULY 15, 2024

K.B.M. appeals from the fine of five dollars imposed following her

conviction for one count of summary disorderly conduct. We vacate and

remand for a new trial.

The facts underlying Appellant’s conviction are straightforward. Officer

LaTonya Ransom, employed by the Easton Area School District Police

Department, was working security at a school football game. She saw

Appellant, who was then twelve years old, fighting another juvenile, identified

as A.B. She separated the girls, grabbing Appellant in the process. Appellant

and several nearby students stated that Appellant had been attacked by the

other girl. Officer Ransom instructed Appellant to leave the area, but she

refused and “was trying to push through” Officer Ransom, which the officer

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S11011-24

presumed was for the purpose of continuing to fight A.B. See N.T., 4/17/23,

at 13. Officer James Fritts, employed by the same department, responded to

Officer Ransom’s request for assistance and ordered everyone to disperse.

Appellant then told the officers that the fight had been mutual and “to leave

her the fuck alone.” Id. at 8. At that point, Officer Fritts physically escorted

Appellant from the premises.

Officer Fritts thereafter issued Appellant two citations. One was for

disorderly conduct. That citation stated: “[Appellant] was involved in a

mutual fight with a juvenile . . . and physical contact was made between the

two.” Citation for Disorderly Conduct, 11/11/22. A separate citation for

harassment stated that Appellant, “after being involved in a fight was

approached by . . . LaTonya Ransom. It was at that time [Appellant]

pushed/shoved LaTonya.” Citation for Harassment, 11/11/22. Officer Fritts

withdrew the harassment charge in exchange for Appellant’s plea before a

magisterial district judge to disorderly conduct. Nonetheless, after she pled

guilty, Appellant appealed to the court of common pleas for a de novo bench

trial pursuant to Rule of Criminal Procedure 462. 1

1 The Commonwealth was not precluded from seeking reinstatement of the withdrawn harassment charge related to Appellant’s interactions with Officer Ransom. See Commonwealth. v. Lennon, 64 A.3d 1092 (Pa.Super. 2013) (holding that a defendant, by appealing a summary guilty plea for a de novo trial under Rule 462, waives any double jeopardy defenses concerning reinstatement of withdrawn charges). However, the Commonwealth did not seek to do so in this case. Accordingly, the harassment citation was not before the court at the de novo trial.

-2- J-S11011-24

At the close of testimony, Appellant argued that the Commonwealth

failed to meet its burden as to disorderly conduct because there was no

evidence regarding how the fight started, and that she may have acted in self-

defense. The trial court stated the following in finding Appellant guilty:

So she’s charged with disorderly conduct, and I understand the argument that she was defending herself from another juvenile, and she may have been okay up until the point where she started pushing back with Officer Ransom and with Officer Fritts and swearing and yelling at them and pushing them back. I think that’s where the violation is.

Id. The court then issued a fine as indicated hereinabove.

Appellant filed a timely notice of appeal, complied with the court’s order

to file a concise statement under Pa.R.A.P. 1925(b), and raises three

arguments for our consideration:

1. Did the trial court err in finding Appellant guilty of [d]isorderly [c]onduct, since the evidence presented at the summary trial did not establish that Appellant intentionally or recklessly engaged in fighting, or violent or tumultuous behavior, with respect to the encounter with the alleged victim identified by name in the charging document?

2. Where the charging document specifically identified the alleged victim by name, and specifically described the conduct on which the charge was based, did the trial court err in finding Appellant guilty of conduct in an encounter, and with an alleged victim, different than that set forth in the charging document?

3. Did the trial court’s finding of guilt in this case, based upon conduct at a different location and time, and with a different person than what was charged in the charging document, constitute a violation of Appellant’s due process [rights], and the conviction should be vacated, and the action dismissed with prejudice?

Appellant’s brief at 4.

-3- J-S11011-24

Appellant’s core contention is that the trial court was required to return

a conviction for disorderly conduct only if the Commonwealth established

beyond a reasonable doubt that she engaged in disorderly conduct relative to

her fighting A.B. Appellant’s theory sounds in due process, beginning with the

rule-based requirement that “[e]very citation shall contain . . . the specific

section and subsection of the statute or ordinance allegedly violated, together

with a summary of the facts sufficient to advise the defendant of the nature

of the offense charged[.]” Pa.R.Crim.P. 403(A)(6). Here, the citation for

disorderly conduct “specifically charge[d] involvement in a mutual fight with

a juvenile named [A.B.], involving physical contact between the two of them.”

Appellant’s brief at 12-13.

Appellant additionally asserts a lack of notice, which caused unfair

surprise at trial in violation of procedural due process protections. She

emphasizes that the harassment charge, which specifically listed her shoving

Officer Ransom, had been withdrawn and Appellant “understood that, at the

trial in this matter, she was being charged with activity relating to the

encounter with [A.B.].” Appellant’s brief at 13. Appellant maintains that the

Commonwealth failed to establish any crime regarding her fight with A.B., as

“neither of the testifying officers saw how the fight began, and [Officer]

Ransom testified that not only [Appellant], but a number of other people who

were present, stated that Appellant was assaulted by [A.B.], and was fighting

to defend herself.” Id. Appellant views the trial judge as finding her guilty of

a crime that the Commonwealth did not charge. For this reason, Appellant

-4- J-S11011-24

does not address whether the evidence was sufficient to convict Appellant of

disorderly conduct based on her interactions with Officer Ransom.

The Commonwealth counters that “the record and [trial judge]’s

description of his rationale for his guilty verdict established that [Appellant]’s

disorderly conduct consisted of pushing Officer Ransom as [the officer] was

attempting to separate [Appellant] from the other student while they were

engaged in a fight.” Commonwealth’s brief at 7. According to the

Commonwealth, the fight between Appellant and A.B. and “the pushing of

[Officer Ransom] during the breakup of the fight” constituted one overarching

instance of disorderly conduct for which Appellant received adequate notice.

Id. Addressing Appellant’s claim that the citation did not reference Appellant’s

behavior towards Officer Ransom as a basis for conviction, the Commonwealth

responds that this “is absurd” as the disorderly conduct citation “listed

LaTonya Ransom as a witness . . . . In addition, the withdrawn [h]arassment

[c]itation introduced into the record . . . explicitly described the pushing of

Officer Ransom as part of [Appellant]’s criminal conduct.” Id. at 8.

The Commonwealth’s argument invokes the familiar principle that “[a]

variance between the citation or indictment and the proof at trial is not fatal

if it still gives the defendant sufficient notice and does not cause surprise which

is prejudicial to the defense.” Commonwealth v. Mutzabaugh, 699 A.2d

1289, 1291 (Pa.Super. 1997). However, that principle does not apply here.

The “sufficient notice” is not simply notice of the basic facts and context

surrounding the incident, but rather notice of what crime the Commonwealth

-5- J-S11011-24

intends to prove. See Commonwealth v. King, 234 A.3d 549, 560 (Pa.

2020) (observing that the “notice component sets the stage for what the

government intends to prove to the jury”).

Accordingly, the Commonwealth’s decision to cite Appellant for

disorderly conduct specifically for engaging in a mutual fight with A.B. limited

the available legal theory of criminal liability to those acts. “Appellate courts

are not permitted to affirm convictions on any theory they please simply

because the facts necessary to support the theory were presented to the jury.”

McCormick v. United States, 500 U.S. 257, 270 (1991). Appellant was not

tried by a jury, but the point remains that a criminal defendant is entitled to

have the fact-finder decide guilt based on the theories specifically pursued by

the Commonwealth. Neither the court as the trier of fact, nor this Court on

review, can unilaterally decide that an alternative theory suffices to establish

guilt, even if those facts would have been sufficient to establish the elements

of the crime.

Our decision Commonwealth v. Taylor, 471 A.2d 1228 (Pa.Super.

1984), illustrates this point. In that case, Taylor drove his thirteen-year-old

daughter and her twelve-year-old friend to Ocean City, New Jersey. On the

drive home, Taylor drank several beers in the car and was almost involved in

a collision. He decided to rent a motel room, where he allegedly made sexual

advances on both girls. The Commonwealth filed a criminal information

charging Taylor with, inter alia, endangering the welfare of the children. The

-6- J-S11011-24

charging document “alleged no facts,” and simply indicated that Taylor “had

endangered the welfare of children.” Id. at 1232.

At trial, the Commonwealth elicited testimony concerning “events which

had allegedly occurred in Room 136 of the Penn Motel. The Commonwealth

did not attempt to prove that [Taylor] had been intoxicated while driving his

motor vehicle or that he had operated his vehicle in a way that was reckless

or even negligent.” Id. The jury asked the trial court if it could consider other

conduct as endangering welfare, citing the allegations of drinking and driving.

The trial court, over Taylor’s objections, told the jury it could consider all the

evidence, and it ultimately found Taylor guilty. We concluded that he was

entitled to a new trial for these reasons:

This instruction was erroneous. It permitted the jury to convict [Taylor] on the basis of conduct which had not previously been included in the accusation against him. The information, to be sure, had charged [Taylor] generally with endangering the welfare of children. The [criminal] complaint, however, had been specific. The conduct complained of had occurred in the motel room, and that is what the Commonwealth attempted to prove [at trial]. To permit the jury during its deliberations to change its focus and base a possible conviction on the manner in which [Taylor] had driven his car before arriving at the motel was erroneous and unfair. The change in focus came as a complete surprise to [Taylor]. It came after the presentation of evidence had been completed and, therefore, at a time when neither [Taylor] nor the Commonwealth could present evidence or argue facts to assist the jury in determining whether a crime had been committed before [Taylor] arrived at the motel. The jury was also permitted to speculate about such an offense without any guidance by the court. . . . . The prosecution did not contend and the evidence did not prove that [Taylor]’s conduct while driving the car to the motel had constituted a knowing endangerment of the children’s

-7- J-S11011-24

welfare by failing to provide for their care, protection or support while they were passengers in his car. To allow the jury to so find was error. A new trial, therefore, is necessary.

Id. at 1233.

To reiterate, the Commonwealth’s citation in the instant case specifically

referenced only the fight between Appellant and A.B., and the trial testimony

and legal arguments by the parties focused on those acts. As in Taylor, the

Commonwealth’s theory listed in the complaint, i.e. the written citation, was

limited to specific behavior. Moreover, the Taylor Court highlighted that

allowing the fact-finder to come up with its own theory of liability deprived the

litigants of the ability to offer argument and evidence tailored to those points.

The trial court’s decision to rest its judgment on what it believed to constitute

disorderly conduct, without the Commonwealth presenting a case to support

that theory, deprived Appellant of her ability to offer argument on that issue. 2

We therefore conclude that Appellant was prejudiced, and a new trial is

warranted.

2 It appears that the trial court’s departure from the Commonwealth’s cited

theory stemmed, in part, from Appellant’s ambiguous invocation of self- defense. See N.T., 4/17/23, at 22 (arguing that her act of “defending herself” was relevant to her intent rather than as justification for the use of force that the Commonwealth had the burden to disprove). Meanwhile, the Commonwealth erroneously suggested that self-defense was not available. Compare N.T., 4/17/23, at 23 (“Nowhere does the statute require that [K.B.M.] needed to ha[ve] initiated the fight.”); with Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa.Super. 2003) (examining claim of self- defense to charge of disorderly conduct). This issue, if raised again, can be squarely decided in the new trial.

-8- J-S11011-24

Judgment of sentence vacated. Conviction vacated. Remanded for

further proceedings consistent with this memorandum. Jurisdiction

relinquished.

Date: 7/15/2024

-9-