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Commonwealth v. N.M.C.

Superior Court of Pennsylvania

October 23, 2017

N.M.C. Appellant 2017 PA Super 335

         Appeal from the Judgment of Sentence January 6, 2017 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-SA-0000035-2016

          BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J. [*]


          MOULTON, J.

         N.M.C. 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.[1] Because we conclude that the evidence is insufficient to sustain the conviction, we vacate N.M.C.'s judgment of sentence.

         On May 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.

         On May 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, [2] 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.

         N.M.C. 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.

         On 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.

         N.M.C. 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, 26.

         N.M.C. 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.

         In 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 be tolerated.
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.

         At the 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.[3]On February 3, 2017, N.M.C. ...

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