from the Judgment of Sentence January 6, 2017 In the Court of
Common Pleas of Clearfield County Criminal Division at No(s):
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.
appeals from the January 6, 2017 judgment of sentence entered
in the Clearfield County Court of Common Pleas following his
bench trial conviction for disorderly conduct - creates a
hazardous or physically offensive condition. Because we
conclude that the evidence is insufficient to sustain the
conviction, we vacate N.M.C.'s judgment of sentence.
10, 2016, at approximately 1:15 p.m., then-14-year-old N.M.C.
used his cell phone to video-record a fight between two other
male students that occurred in the boys' bathroom at
Dubois Area Middle School. The 45-second video shows two male
students talking, squaring off, shoving each other, and
throwing several punches. In the background of the video, a
male student exposes his buttocks to the camera and another
is standing at a urinal behind a divider. That evening after
school, N.M.C. sent the video via text message to his
girlfriend and one other student. On May 11, 2016, a third
student asked N.M.C. if he could see the video, but N.M.C.
refused to show it to him.
11, 2016, the assistant principal, Michael Maholtz, learned
of the fight. Maholtz confronted the combatants and
eyewitnesses to the fight, who did not tell Maholtz the truth
about the altercation. After these interviews, Maholtz
received a copy of the video from N.M.C.'s girlfriend.
The video helped Maholtz identify the participants as well as
other students present for the fight,  and Maholtz
subsequently conducted additional interviews. When first
interviewed, N.M.C. admitted that he witnessed the fight but
did not reveal that he had taken a video. Shortly thereafter,
N.M.C. provided a second statement, in which he admitted to
recording the fight.
was cited for disorderly conduct - creates a hazardous or
physically offensive condition. On August 15, 2016, a
magisterial district judge held a summary trial and found
N.M.C. guilty. On September 7, 2016, N.M.C. appealed to the
court of common pleas.
January 6, 2017, the trial court held a de novo
trial. At trial, Assistant Principal Maholtz testified that
he was alarmed because the fight occurred in a restroom where
there are "many safety hazards" and that there had
been a "rash of these incidents prior to this one."
N.T., 1/6/17, at 10. Maholtz also testified that this was the
first such incident that had been video-recorded, that it was
not common to see students video-record fights, and that the
administration was attempting to "prevent these
[incidents] from happening due to the national trend."
Id. at 16-17.
testified in his own defense. He stated that went to the
restroom to watch the fight, that he had not planned in
advance to record the fight, that he did not publish the
video on social media, and that he did not intend to cause or
promote more fights. Id. at 20-21. When asked why he
had recorded the fight, N.M.C. said he wanted to have
evidence that he was not fighting. Id. at 23. He
further stated that he text-messaged the video only to his
girlfriend and to one other student, id., and that
he did not show the video to anyone else. Id. at 24,
also presented the testimony of one of the participants, who
stated that he did not know the fight was being recorded,
that he did not tell anyone he was going to fight the other
student, and that N.M.C. entered the bathroom right before
the other combatant entered. Id. at 29-31.
closing, N.M.C.'s counsel argued that the Commonwealth
had failed to prove the creation of a hazardous or physically
offensive condition. Id. at 32-33. The
Commonwealth's closing argument was as follows:
This case is very straight[-]forward. I don't think there
is much of dispute about what happened in this case. For me
personally, I can see why this type of behavior shouldn't
I can see why it does create a hazardous condition. It
encourages fighting. It promotes fighting. It encourages
these videos to be spread around and kids to be embarrassed
by this type of behavior, like maybe getting beat up in the
video or something like that and having it posted online or
in text messages like in this case, I think it entices
individuals to get in fights. It makes them look tough. And
that's why, I guess, overall, I would ask the Court to
find [N.M.C.] guilty here today.
Id. at 33.
conclusion of the trial, the trial court found N.M.C. guilty:
Okay. Well, it has been a long time since I have been in high
school. I suppose back at that time, if there is a fight,
yeah, I suppose a lot of people wanted to go see the fight.
Of course, as we get older and wiser, then we realize where
there is a fight, you want to go the other direction as fast
as you possibly can.
All that being said, I think the Commonwealth has proven its
case. I think he is guilty of the disorderly conduct section.
Id. at 33-34. The trial court sentenced N.M.C. to 90
days' probation, 35 hours of community service, and
ordered N.M.C. to pay a $100 fine and court
costs.On February 3, 2017, N.M.C. ...