Commonwealth v. Bradley

232 A.3d 747

COMMONWEALTH of Pennsylvania, Appellee

v.Kevin Ray BRADLEY, Appellant

No. 1196 MDA 2019

Superior Court of Pennsylvania.

Argued January 23, 2020

Filed May 05, 2020

Joshua J. Cochran, Williamsport, for appellant.

Joseph C. Ruby, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

OPINION BY STABILE, J.:

Appellant Kevin Ray Bradley appeals from the July 3, 2019 judgment of sentence entered in the Court of Common Pleas of Lycoming County ("trial court"), following his jury conviction for defiant trespass under Section 3503(b)(1) of the Crimes Code, 18 Pa.C.S.A. § 3503(b)(1). Upon review, we affirm.

In connection with his filming in the lobby of the Williamsport Bureau Police Department (the "Lobby"), Appellant was charged with defiant trespass. The case eventually proceeded to a jury trial, at which the Commonwealth proffered the testimony of Corporal Brian McGee, who testified that he was employed with the Williamsport Police Department since September of 2012. N.T. Trial, 4/2/19, at 24. Corporal McGee further testified that he worked in a supervisory capacity at the police department, which is located "within the rear of the City Hall Building." Id. at 24-25. He explained that the police department has two separate entrances, "one is secured and one is controlled by the shift supervisor whose [sic] sitting at the desk." Id. at 25. Corporal McGee testified that the police department has a lobby that is open to the public. Id. He stated:

During specific times and hours, the lobby is – the door is unlocked and the public can access the duty supervisor, whoever is managing that supervisor's desk or what we call the lodge desk, has control over that particular door can secure that door at any time. There's also a button that can release the lock on that door to allow folks in and out as the watch commander desires.

Id.

Corporal McGee testified that, on January 25, 2018, shortly after 4:00 p.m. he had an interaction with Appellant in the Lobby. Id. at 25-26. Specifically, Corporal McGee recalled that as he was finishing up the shift change and roll call, an officer informed him that Appellant "was at the window." Id. at 25-26. Corporal McGee testified that at that time, he did not know why Appellant was at the station. Id. at 26. Corporal McGee recalled that, upon learning of Appellant's presence,

I went out, as typical, I went into the watch commander's office which is still within a secure area behind a partition of glass and I immediately notice [Appellant] standing at the window and he was holding a cell phone in his hand in a manner that was obvious to me that he was recording.

Id. Corporal McGee explained that Appellant "was holding his cell phone, the camera was facing towards me and then I asked him immediately if he was recording and he stated yes." Id. at 31. Corporal McGee stated that recording was not "permitted in the area that [Appellant] was in." Id. at 26. In explaining the reasons for the prohibition, Corporal McGee remarked:

There's multiple reasons. One of the reasons is there could be confidential information discussed within a secure area of the police department and that's confidential information that we would not want to get out to the public, it could be detrimental to any case. The walls could be very thin and very easy to hear into another room or throughout the secure area into the lobby area.

In addition to that, multiple times throughout the day we have confidential informants that come in there who we obviously want to keep their identity safe and secure so that they are not retaliated against for any sort of case.

There's also under cover [sic ] police officers that come in and out of there and we obviously want to keep their identity safe and secure so that there's no retaliation against them in the street.

And, victim of any crime who may want to remain anonymous or may be the victims of any sort of domestic violence or any act of that nature, we want to keep them safe and that's our duty to not allow some of that confidential information to be put out to the public.

Id. at 26-27. Corporal McGee further recalled that on the day of the incident, there was a posted no-filming sign in the Lobby where Appellant was standing.¹ Id. at 27. He testified that the sign was "to the left side" of Appellant and "about eye level, maybe a little bit above eye level." Id. Corporal McGee was unable to recall the exact date when the sign was posted. Id. He, however, testified that the sign was not put up a few days before the incident with Appellant. Id. at 28-29.

Recalling his interaction with Appellant, Corporal McGee testified that, upon recognizing that Appellant was filming, "I immediately instructed [him] that he needed to cease filming and I referred him to the sign which was posted at that time." Id. at 29. According to Corporal McGee, Appellant did not obey his command and continued filming. Id. "He continued to film and he continued to state how the City of Williamsport was violating his rights, his constitutional rights, and made comments on his video asking the public to contact the police station." Id. Describing his response, Corporal McGee testified:

At this point I exited the secure area of the police station and I – upon exiting the secure area I pointed to the sign and began to explain to [Appellant] the reasons for the sign being posted, confidential information and items of that nature. And then I also multiple times asked him to cease recording, multiple times asked him to leave. I instructed him that he needs to cease. I instructed him that he needs to leave multiple times over and if he did not abide by any of these then I would arrest him for the trespass.

Id. When Appellant continued to disobey his instruction to cease filming or leave the station, Corporal McGee "attempted to take [Appellant's] phone from him so that the recording could cease." Id. at 30. According to Corporal McGee:

At that point in time there was an individual from the public attempting to enter . I had no idea who the individual was. I didn't know if it was some sort of undercover officer or confidential informant, anything like that. And I also instructed [Appellant] that he was under arrest and I was preparing to take him into custody.

Id. (emphasis added). Corporal McGee testified that he arrested Appellant with the assistance of additional officers. He described the arrest as follows:

[Appellant] attempted to pull away from me taking him into custody. There was a slight struggle with [Appellant], it created a disturbance, and again, something that can be clearly heard through the walls or into a secure area where there was multiple police officers and three additional officers – actually I believe there were four additional officers – exited and assisted me in taking [Appellant] into custody.

Id.

Thereafter, the Commonwealth introduced into evidence and played for the jury a station video depicting the incident. Id. at 31. Corporal McGee noted that the no-filming sign applied "equally to every member of the public who would have walked in." Id. Corporal McGee stated that if Appellant had complied with his command and turned off the recording, he would not have asked him to leave the station. Id. at 31-32.

On cross-examination, Corporal McGee acknowledged that Appellant was "well known to the department as someone who videos police." Id. at 32-33. Corporal McGee described the Lobby as "an area which the public has access to and I, as a supervisor or a watch commander at that desk, can control access via locking a door or keeping the door unlocked." Id. at 33. Corporal McGee, however, acknowledged that when the door is unlocked, any member of the public "can come in." Id. He further clarified that Appellant's phone, while he was filming, was pointed toward "the secure area of the police station." Id. Corporal McGee acknowledged that anyone could observe a confidential informant or an undercover officer enter the police station. Id. at 34-35. Corporal McGee also acknowledged that Appellant would have been permitted to film individuals entering the police department from the steps outside. Id. at 35. He also conceded that the video of the incident depicted Appellant asserting a constitutional right to film in the Lobby. Id. at 36. Corporal McGee testified that the Lobby door was unlocked from 9:00 a.m. to 5:00 p.m. on weekdays. Id. at 37.

At the close of the Commonwealth's evidence, Appellant filed a motion for judgment of acquittal, which the trial court denied. Id. at 41-46. Thereafter, in response, Appellant testified on his own behalf. Appellant testified that it was his "hobby or activity of videoing police and governmental agen[cies]" because he likes to hold "public officials accountable for their actions." Id. at 46. Appellant testified that he had been filming police for between two and three years. Id. at 47. He testified that he previously had filmed in the Lobby and that no one at the station at that time directed him to stop filming. Id. Appellant explained that he was "live streaming" on YouTube his visit to the station on the day of the incident and that he "had people watching so I had witnesses there in case something happened." Id. He testified that he was holding his cell phone "long ways" up, i.e. , vertically. Id. at 48. Appellant explained that he refused to obey Corporal McGee's commands to stop filming because "I feel it's my constitutional right to video record the police." Id. He testified that he engages in "First Amendment audits," which he described as

Where you go to a place and stand out on a public sidewalk and record a building. It's a First Amendment right to be able to record because the Supreme Court rules that you can't trespass with your eyes. Anything you see with the eyes you can record as long as it's in public.

Id. at 48-49. Finally, Appellant testified that, on the day of the incident, he went to the police station...