J-S56005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELIZABETH ANN EBERHART,
Appellant No. 152 MDA 2015
Appeal from the Judgment of Sentence November 17, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-SA-0000203-2014
BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 13, 2015
Appellant, Elizabeth Ann Eberhart, appeals from the judgment of
sentence entered following her conviction of disorderly conduct. After
careful consideration, we vacate Appellant’s judgment of sentence.
The trial court summarized the factual history of this case as follows:
Sandra B[ry]ington testified that on July 11, 2014, in the
early morning hours, she had taken her three children and two
of their friends outside to play. The children wanted to ride their
bikes and scooters and Ms. Bryington wanted to take the
garbage out. Ms. Bryington’s youngest son had gotten his
wheels s[t]uck on the sidewalk. After Ms. Bryington got the
child unstuck, she heard someone call out “you need to watch
your f---ing (expletive deleted) kids.” Ms. Bryington noticed that
[Appellant] was standing there with another lady and [Appellant]
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*
Retired Senior Judge assigned to the Superior Court.
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starting calling Ms. Bryington a “f ---ing (expletive deleted)
bitch.”
Ms. Bryington further testified that since she had the
children all around her and she did not know who this lady was,
[she] asked [Appellant] and [Appellant’s] friend if they would
like the police called. One of the neighbors told Ms. Bryington
that she needed to call the state police. At this point,
[Appellant] had exited her vehicle and started walking towards
Ms. Bryington yelling “you don’t know who the f - -- (expletive
deleted) you’re messing with.” Once this happened, Ms.
Bryington had the children stay with neighbors and borrowed a
neighbor’s cell phone to call the state police. Ms. Byrington
stayed with neighbors until the police told her she could go back
to her apartment.
Trooper Nicholas T. Zulick, a Pennsylvania State Police
employee, testified that on the date of the incident he observed
that Ms. Bryington was visibly upset and was crying over an
incident that occurred earlier in the day. Trooper Zulick talked
to neighbors who verified that the incident that [sic] had taken
place. Trooper Zulick testified that “everybody he talked to said
that there was cursing and yelling that they could clearly hear
away from the scene.”
[Appellant] testified that she lives in Millersburg and was
visiting a friend that day. [Appellant] testified that she was very
happy that day and wanted to show her friend a “new-to-me
vehicle” that she recently purchased. [Appellant] continued to
testify that she had to go to work and did not have time to have
a cigarette with her friend. When [Appellant] got into her car,
her friend told her to watch out for the children behind her.
[Appellant] testified that she did not exit the vehicle and
exchange words with Ms. Bryington. However, [Appellant]
continue[d] to testify that words were exchanged and she said
“do you think I’m afraid of you?” At this point, [Appellant’s]
friend had gone inside because she did not want to “put up with
this.”
Trial Court Opinion, 2/10/15, at 2-3 (internal citations omitted).
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As a result of this incident, Appellant was charged with disorderly
conduct1 and harassment.2 On November 17, 2014, following a summary
appeal hearing before the common pleas court, Appellant was found guilty of
disorderly conduct and sentenced to pay a $100 fine, along with costs in the
amount of $125.50 and a judicial fee of $33.50. Appellant was acquitted of
harassment.
Appellant filed a post-sentence motion, and the Commonwealth filed
an answer to that motion. By order entered December 29, 2014, the trial
court denied Appellant’s post-sentence motion. Appellant filed a timely
notice of appeal to this Court on January 13, 2015. Both Appellant and the
trial court complied with the requirements of Pa.R.A.P. 1925.
Appellant presents the following issues for our review, which we
reproduce verbatim:
I. Whether the evidence presented by the Commonwealth
was insufficient to prove beyond a reasonable doubt that
Appellant committed the crime of disorderly conduct where:
A) the Commonwealth failed to prove that Appellant
used obscene language or made an obscene gesture?
B) the Commonwealth failed to prove that Appellant
acted with the intent to cause public inconvenience,
annoyance or alarm, or recklessly created a risk thereof,
and
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1
18 Pa.C.S. § 5503(a)(3).
2
18 Pa.C.S. § 2709(a)(3).
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Appellant’s Brief at 5.
We start by noting that although Appellant presents two distinct issues
for review in her appellate brief, a review of her Pa.R.A.P. 1925(b)
statement reveals that she listed only one of those issues in the statement
before the trial court.3 Thus, only Appellant’s first issue has been preserved
for our review. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998)) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be
deemed waived.”).
In support of her remaining issue, Appellant argues that the evidence
was insufficient to prove that she engaged in disorderly conduct. Appellant’s
Brief at 11. Specifically, Appellant contends that the Commonwealth failed
to prove that Appellant used obscene language or made an obscene gesture.
Id. While the record supports the conclusion that Appellant used the “F-
word” to express anger, Appellant asserts her statements had nothing to do
with sex, and thus failed to support the conclusion that the “words appeal to
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3
Appellant identified the following single issue in her Pa.R.A.P. 1925(b)
statement:
The Commonwealth failed to present sufficient evidence to
sustain Appellant’s conviction for Disorderly Conduct, 18
Pa.C.S.A. 5503(a)(3), where the Commonwealth failed to prove
that the Appellant used obscene language or made an obscene
gesture.
Pa.R.A.P. 1925(b) statement, 2/2/15, at 1.
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the prurient interest or a depiction, in a patently offensive way, of relevant
sexual conduct.” Id. at 12-13.
Our standard of review when considering a challenge to the sufficiency
of the evidence is well settled:
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. In addition, 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
proof or 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. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003).
Disorderly conduct under 18 Pa.C.S. § 5503(a)(3) is defined as
follows:
(a) Offense defined. -- A person is guilty of disorderly conduct
if, with intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, he:
***
(3) uses obscene language, or makes an obscene
gesture[.]
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18 Pa.C.S. § 5503(a)(3). This Court has explained the following in
addressing this provision:
The first inquiry is what is the definition of “obscene” for
purposes of 18 Pa.C.S. § 5503(a)(3). This Court has held that,
for purposes of a disorderly conduct statute prohibiting the use
of obscene language, language is obscene if it meets the test set
forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37
L.Ed.2d 419 (1973):
(a) whether “the average person, applying
contemporary community standards” would find that
the work, taken as a whole, appeals to the prurient
interest, (b) whether the work depicts or describes,
in a patently offensive way, sexual conduct
specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
Commonwealth v. McCoy, 69 A.3d 658, 665 (Pa. Super. 2013).
Moreover, the offense of disorderly conduct is not intended as a
catchall for every act which annoys or disturbs people; it is not
to be used as a dragnet for all the irritations which breed in the
ferment of a community. It has a specific purpose; it has a
definite objective, it is intended to preserve the public peace; it
has thus a limited periphery beyond which the prosecuting
authorities have no right to transgress any more that the alleged
criminal has the right to operate within its clearly outlined
circumference.
Id.
In addressing this issue, the trial court provided the following analysis:
Here, [Appellant] used “obscene language.” Ms. Bryington
was outside with her children and her children’s friends when
[Appellant] approached her and started yelling “watch your f---
ing kids” and calling her a “f---ing bitch.” [Appellant] further
yelled “you don’t know who the f--- you are messing with.” All
of this took place in front of the children. The definition of
obscene, for purposes of Section 5503(a) has been defined by
Miller [v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973)].
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Circumstances surrounding words can be crucial. In this
instance, [Appellant’s] use of language was highly offensive to
Ms. Bryington and her neighbors. One of the neighbors told Ms.
Bryington that she needed to call the state police. This neighbor
found that [Appellant’s] conduct and choice use of words were
highly offensive such that the state police needed to be called.
Furthermore, children should not be subjected to this type of
language. Ms. Bryington had children ranging from four (4)
years old and up. At such a young age, children should not be
subjected to such use of language. In an ever evolving society,
some may say that this language is the everyday “norm.” Some
may say that children should be “used to this type of language”.
However, in this instance, a caring parent with her children and
her children’s friends was concerned about what was being said
in front of children. Ms. Bryington was visibly upset about the
language and immediately took the children to a neighbor’s
house, while she called the state police. One neighbor was so
concerned that he or she told Ms. Bryington that the state police
needed to be called. This type of language, when looking at the
circumstances surrounding the situation, was obscene in nature.
Because [Appellant] got out of her car and approached Ms.
Bryington yelling obscenities at her, all the while this was
happening in front of children and concerned neighbors,
[Appellant] is found in violation of Section 5503(a)(3) Disorderly
Conduct.
Trial Court Opinion, 2/10/15, at 5-6 (emphasis in original).
We have reviewed the record and conclude there is no evidence that
Appellant’s language and use of the “f-word” was intended to appeal to
anyone’s prurient interest, nor did it describe in a patently offensive way
sexual conduct. Thus, although the language may have been offensive, it
does not meet the criteria of obscene language or gestures as defined by the
statute. See McCoy, 69 A.3d at 666 (holding that a defendant’s chant of
“fuck the police” during a funeral procession of an officer killed in the line of
duty was not obscene as defined under 18 Pa.C.S. § 5503(a)(3) because it
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was not “intended to appeal to anyone’s prurient interest nor did it describe,
in a patently offensive way sexual conduct.”); see also Commonwealth v.
Kelly, 758 A.2d 1284, 1288 (Pa. Super. 2000) (holding that while
appellant’s use of the “F-word” and the middle finger “were disrespectful,
insulting and offensive, they were . . . not ‘obscene’ within the meaning of
Section 5503(a)(3).”); Commonwealth v. Bryner, 652 A.2d 909, 912 (Pa.
Super. 1995) (finding that shouting “go to hell, Betsy” in a public place,
even if provocative or annoying, was not “obscene” pursuant to section
5503(a)(3) of the Pennsylvania disorderly conduct statute because it did not
appeal to anyone’s prurient interests). Because there was no evidence of
obscene language or gestures, we are constrained to agree with Appellant
that her conviction of disorderly conduct must be set aside.4
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4
We note the trial court’s finding that this language was “obscene” based on
the surrounding circumstances, specifically that these statements were
made in front of children and that the statements were “highly offensive” to
Ms. Bryington and her neighbors. Although such factors do not make the
language “obscene” under 18 Pa.C.S. § 5503(a)(3) for reasons outlined
above, such circumstances and evidence would have been relevant to an
offense under section 5503(a)(1) (“engages in fighting or threatening, or in
violent or tumultuous behavior”) or section 5503(a)(4) (“creates a
hazardous or physically offensive condition by any act which serves no
legitimate purpose of the actor”) of the disorderly conduct statute. As
stated, however, Appellant was not charged with either of these provisions.
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Judgment of sentence vacated. Jurisdiction relinquished.
Judge Jenkins joins the Memorandum.
Judge Platt files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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