Commonwealth v. Bertothy

307 A.3d 776

COMMONWEALTH of Pennsylvania

v.Jason Thomas BERTOTHY, Appellant

No. 254 WDA 2023

Superior Court of Pennsylvania.

Submitted November 6, 2023

Filed December 28, 2023

Appeal from the Judgment of Sentence Entered February 8, 2023, In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-SA-0000039-2022, Fredric J. Ammerman, J.

John W. Lhota, State College, for appellant.

Phillip R. Sayers, District Attorney, Clearfield, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Jason Thomas Bertothy, appeals from the judgment of sentence entered by the Court of Common Pleas of Clearfield County after the court, sitting as finder of fact at Appellant’s de novo summary trial for Disorderly Conduct—Unreasonable, Noise,¹ found, Appellant guilty. We affirm.

The relevant facts adduced from Appellant’s summary trial follow. Pennsylvania State Trooper Austin Woolcock testified that on August 28, 2022, at 8:24 p.m., he received a dispatch to the area of 322 and Wallaceton Bigler Highway in Bradford Township, Clearfield County to respond to several complaints of a large explosion occurring on the Bertothy estate. N.T., 2/8/23, at 28, 32, 35. Trooper Woolcock arrived at the scene at approximately 8:30 p.m. and asked several people around a campfire if he could speak to the owner of the property. N.T. at 29. Appellant came out of his house and identified himself as the owner. N.T. at 29. According to Trooper Woolcock, he explained to Appellant that he was seeking the person responsible for causing the explosion, and he asked Appellant, "Who set off the Tannerite?" N.T. at 29. He testified that Appellant, without qualification, took responsibility for it. N.T. at 29.

Trooper Woolcock described Tannerite as a "very explosive" but legal target that has the potential to "take down buildings" when used in large enough quantities, although it was his experience that people mostly use it recreationally by shooting it on their rural properties consisting of many acres. N.T. at 29-30, 33. The state trooper said the explosion can create a very loud noise, and he explained that in this instance the disorderly conduct charge was based, in part, on the reports of several neighbors who live on the borders of Appellant’s property and complained that the noise was of such magnitude as to cause them alarm, annoyance, and inconvenience. N.T., at 30, 33, 35.

On cross-examination, the defense elicited testimony from Trooper Woolcock that he could not recall if Appellant explicitly stated that he "shot the Tannerite" or if he said he was "taking responsibility" for it, because Appellant’s responses quickly became "heated." N.T. at 30, 32. The state trooper also acknowledged that Appellant’s son had been charged with disorderly conduct for his use of Tannerite within the previous year-and-a-half. N.T. at 36.

Two of Appellant’s neighbors also testified. Shelby Bloom testified at length about how the explosion caused extreme noise and disturbed her and her husband as they sat on their back porch during twilight that evening. N.T. at 4-16, 38-42 (see infra). The Commonwealth also asked her to comment about spray painted "FU"s appearing on the public-facing side of Appellant’s trees. On this point, the trial court overruled a defense objection, as it ruled the markings were admissible, relevant evidence on the question of whether Appellant had intended to annoy, alarm, or inconvenience his neighbors with the explosion at issue. N.T. at 38. Accordingly, Mrs. Bloom testified there were at least a dozen trees on the road with fluorescent yellow and bright pink "FU"s visible from her home and her neighbor’s home, and several more on other roadside trees facing three other neighbors’ homes. N.T. at 39-40. She claimed the markings first appeared after the neighbors had begun calling in complaints about the Bertothys, and she maintained the Bertothys add brighter color to them when they begin to fade. N.T. at 40.

A second neighbor, Mr. Timothy Holt, also testified to both his experience with the explosion for which Appellant was charged, his and his family’s past experiences with Tannerite explosions occurring on Appellant’s property, and the markings on the Bertothys’ trees. N.T. at 16-27 (see infra). Trooper Woolcock likewise testified that he noticed the "FU" markings and surmised at the time that they were directed at the neighbors’ homes in retaliation for their complaints against the Bertothys over the last year-and-a-half. N.T. at 35, 36.

Appellant testified in his own defense. He admitted telling State Trooper Woolcock that he took responsibility for the explosion, but he denied ever admitting to either shooting or directing another to shoot the Tannerite target. N.T. at 51. In fact, he testified that he was not present on the property at the time of the explosion. N.T. at 43. When asked if he had ever spoken to his neighbors about the noise issue with the Tannerite targets, Appellant answered that he hardly speaks to his neighbors, as they "just call the state police every time we turn around." N.T. at 48.

At the conclusion of the summary trial, the trial court found Appellant guilty on the single charge of Disorderly Conduct at Section 5503(a)(2) and sentenced him to a fine, costs, and 90 days of probation. This timely appeal followed.

[1–3] Appellant raises, the following issues for this Court’s consideration:

1. Whether, under relevant law, the trial court erred in finding the Appellant guilty of disorderly conduct, 18 Pa.C.S.A. § 5503(a)(2), where the Commonwealth failed to present sufficient evidence to establish beyond a reasonable doubt that Appellant was present at the property and made the noise.

2. Whether, under relevant law, the trial court erred in finding the Appellant guilty of disorderly conduct, 18 Pa.C.S.A. § 5503(a)(2), where the Commonwealth failed to present sufficient evidence to establish beyond a reasonable doubt that Appellant intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk thereof by making unreasonable noise.

3. Whether, under relevant law, the trial court erred in denying Appellant’s motion for judgment of acquittal at the close of the Commonwealth’s case-in-chief, where the Commonwealth failed to present sufficient evidence to establish beyond a reasonable doubt that, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," Appellant was present at the property and made unreasonable noise.

4. Whether, under relevant law, the trial court finding Appellant guilty of Disorderly Conduct, 18 Pa.C.S.A. § 5503(a)(2), is against the weight of the evidence, where the evidence established that Appellant was not present at the property at the time the targets were shot and shooting Tannerite targets is lawful and common.

5. Whether, under relevant law, the trial court erred in enjoining Appellant from possessing, using, selling, shooting, or engaging any Tannerite targets or other explosive device(s) of any type, or permitting others to engage in such conduct, on any property owned by him or rented by him, and further enjoining Appellant from permitting any activity on his property which causes unreasonable and alarming noise.

Appellant’s Brief at 3-4.²

[4–10] We review Appellant’s preserved challenges under the following standard of review:

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 the fact-finder. Inaddition, 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 actually 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.

Commonwealth v. Richard, 150 A.3d 504, 516 (Pa. Super. 2016) (citation omitted).

[11, 12] Appellant was convicted of disorderly conduct under section 5503(a)(2), which states: "A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he … makes unreasonable noise[.]" 18 Pa.C.S. § 5503(a)(2). It is well-settled that "the offense of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people" and "it is hot to be used as a dragnet for all the irritations which breed in the ferment of a community." Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943, 947 (1999). Rather, the specific and definite purpose of the disorderly conduct statute is "to preserve the public peace." Id. See also Commonwealth v. Fedorek, 596 Pa. 475, 946 A.2d 93, 100 (2008) (observing that the disorderly conduct statute "is aimed at protecting the public from certain enumerated acts" (original quotation marks and emphasis omitted)).

The crux of Appellant’s preserved issues is that the Commonwealth failed to prove (1) that he caused the explosion, (2) that the explosion produced unreasonable noise, and (3) that he either intended to cause or recklessly created the risk of causing public inconvenience. We take each argument in turn.

[13] The first two...