J-A12037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GUY ROBERT ROHM
Appellant No. 1610 WDA 2016
Appeal from the Judgment of Sentence September 19, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-SA-0001522-2016
BEFORE: OLSON, SOLANO and RANSOM, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 22, 2017
Appellant, Guy Robert Rohm, appeals from the judgment of sentence
entered on September 19, 2016. We vacate Appellant’s judgment of
sentence.
On June 10, 2016, Pittsburgh Police Officer Casey Waha instituted
summary criminal proceedings against Appellant by filing a non-traffic
citation against Appellant in the magisterial district court. Within the
citation, Officer Waha averred that, on June 2, 2016, Appellant “was highly
intox[icated,] causing a scene . . . [,] calling the officers ‘liars’ and ‘assholes’
[and] stating don’t we have anything better to do.” Non-Traffic Citation,
6/10/16, at 1. Officer Waha charged Appellant with disorderly conduct
under 18 Pa.C.S.A. § 5503(a)(3). This subsection declares:
(a) Offense defined.--A person is guilty of disorderly
conduct if, with intent to cause public inconvenience,
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annoyance or alarm, or recklessly creating a risk thereof,
he:
...
(3) uses obscene language, or makes an obscene
gesture[.]
18 Pa.C.S.A. § 5503(a)(3).
Following the issuance of a summons and Appellant’s plea of not
guilty, Appellant was tried before the magisterial district court on July 21,
2016. That day, the magisterial district court found Appellant guilty of
violating 18 Pa.C.S.A. § 5503(a)(3) and sentenced Appellant to pay a fine of
$100.00. Magisterial District Court Docket at 2-3.
Appellant filed a timely notice of appeal to the court of common pleas
and, on September 19, 2016, the trial court held Appellant’s trial de novo.
See Pa.R.Crim.P. 462. During the trial, Officer Waha testified that, on June
2, 2016:
my partner [and I] received a 911 call . . . for a disorderly
person in a Wine and Spirits store. When we arrived on
scene [Appellant] was not there. We were told by the store
clerk that he fled out the back of the store. . . .
We met up with [Appellant] at the intersection of Mitchell
and Hall where he proceeded to yell at officers, call us
assholes and liars, that we had no other business but to
harass him. . . . He continued to make such a scene that
neighbors heard him yelling and screaming at officers. They
came out to their front porches to see what was going on. .
. . They heard [Appellant] screaming at us from their
houses, came out to their front porch to see what was going
on. I would say it was four of the neighbors that came out.
One of them had a cell phone out and was videotaping.
N.T. Trial, 9/16/16, at 4-6 and 8.
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The trial court found Appellant guilty of the charged crime and
sentenced Appellant to pay a fine of $200.00, plus court costs. Id. at 14;
Written Judgment of Sentence, 9/19/16, at 1; Trial Court Docket Sheet at 2.
Appellant filed a timely notice of appeal and Appellant now raises one claim
to this Court:
Is [Appellant] entitled to a reversal of the affirmed guilty
verdict due to a lack of sufficient evidence and a violation of
the United States Constitutional right to freedom of
speech[?]
Appellant’s Brief at 4.
We review Appellant’s sufficiency of the evidence claim under the
following standard:
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 [that of] 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 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.
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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc) (internal quotations and citations omitted).
Appellant was charged with and convicted of committing disorderly
conduct under 18 Pa.C.S.A. § 5503(a)(3). Again, this subsection declares:
(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[.]
18 Pa.C.S.A. § 5503(a)(3).
On appeal, Appellant claims that the evidence was insufficient to
support his disorderly conduct conviction, as the language and gestures he
used on June 2, 2016 do not “satisf[y] the United States Supreme Court’s
test for obscenity.” Appellant’s Brief at 10. Moreover, during oral argument
in this case, the Commonwealth conceded that Appellant was entitled to
relief on appeal, as the evidence was insufficient to support his conviction for
violating 18 Pa.C.S.A. § 5503(a)(3). We agree with Appellant and the
Commonwealth. As this Court has explained:
The first inquiry is what is the definition of “obscene” for
purposes of 18 Pa.C.S. § 5505(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
(1973):
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(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. Bryner, 652 A.2d 909, 912 (Pa. Super.
1995).
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.
Commonwealth v. McCoy, 69 A.3d 658, 665 (Pa. Super. 2013) (some
internal citations and quotations omitted).
The evidence in this case demonstrates that, on June 2, 2016,
Appellant caused a neighborhood disturbance by yelling at the officers who
were present and by calling the officers “assholes and liars.” N.T. Trial,
9/16/16, at 4-6 and 8. While Appellant’s actions and language that night
might have violated the disorderly conduct statute, they did not violate the
specific subsection under which Appellant was charged and convicted – 18
Pa.C.S.A. § 5503(a)(3). To paraphrase our opinion in McCoy, we hold as to
Appellant:
Section (a)(3), under which [Appellant] was convicted,
addresses only obscene language or gestures and conviction
under this section must be the result of such obscene
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behavior. We have reviewed the official record and must
conclude there is no evidence that [Appellant’s language]
was intended to appeal to anyone's prurient interest nor did
it describe, in a patently offensive way sexual conduct.
There was no evidence of obscene language or gestures and
therefore we agree with [Appellant and the Commonwealth]
that [Appellant’s] conviction of disorderly conduct must be
set aside.
McCoy, 69 A.3d at 666.
We thus vacate Appellant’s judgment of sentence.
Judgment of sentence vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2017
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