J-S35002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZARINAH MUHAMMAD :
:
Appellant : No. 690 MDA 2022
Appeal from the Judgment of Sentence Entered April 6, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-SA-0000053-2022
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
CONCURRING MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 11,
2023
“Why is nice bad? What kind of a sick society are we living in when nice
is bad?” George Costanza on Seinfeld, (Larry David and Jerry Seinfeld, Season
3, Episode 7, November 6, 1991).
While “nice” may be elusive at times, our society cannot permit the type
of public display of abusive, disrespectful, insulting and obnoxious behavior
such as Appellant directed toward law enforcement officers in this case.
Appellant deserves to be punished for her public use of explicit, offensive
language directed at Luzerne County deputies in the Courthouse annex,
especially in a place where the rule of law is sacrosanct. Because of the
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* Former Justice specially assigned to the Superior Court.
J-S35002-22
wording of the statute in question and relevant case law, however, Appellant
escapes responsibility for her actions.
The deputies were merely enforcing court rules that required individuals
to wear a mask entering the building during the time of the pandemic.
Appellant, who obtained a mask after first refusing to wear one, cursed at a
security officer and shouted “fuck you” in a public hallway several times to a
deputy and security officer as she was walking to the elevator.
The Majority correctly follows precedent that the evidence here was
insufficient to uphold her conviction for Disorderly Conduct under 18 Pa.C.S.A.
§ 5503(a)(3). Such precedent holds that the offensive language used in this
case does not meet the legal definition of “obscene” in that it does not appeal
to anyone’s prurient interest, nor did it describe in a patently offensive way,
sexual conduct. Thus, I reluctantly agree with the Majority decision to reverse
the conviction.
However, I urge the Pennsylvania Legislature to criminalize, even by
using just a fine as punishment, within of course constitutional standards,
such abusive and belligerent conduct toward law enforcement officers and
other first responders. The blatant offensive behavior and language by
Appellant erodes confidence and respect toward those whose responsibility it
is to protect the rights and lives of others. Moreover, such behavior and
language in public can incite an escalation of combative language and actions,
including violence, by others toward police officers.
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While the law cannot require people to be “nice”, public displays of
language and conduct such as in this case directed toward those who are
sworn to enforce the law should be prohibited.1
Thus, I respectfully Concur.
P.J.E. Bender and Judge McLaughlin join the Concurring Memorandum.
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1 In Commonwealth v. Pringle, 450 A.2d 103 (Pa.Super. 1982), this Court
affirmed the appellant’s disorderly conduct conviction under subsection (a)(3)
after she repeatedly referred to police officers as “goddamn fucking pigs” when
they were attempting to arrest another individual. On appeal, the appellant
argued that her words were not “obscene,” and thus, were protected under
the First Amendment. In rejecting her claim, this Court, although recognizing
several United States Supreme Court cases dealing with the use of obscene
words, distinguished those cases and held that “one may be convicted of
disorderly conduct for engaging in the activity of shouting profane names and
insults at police officers on a public street while the officers attempt to carry
out their lawful duties.” Pringle, 450 A.2d at 106.
However, subsequently, in Commonwealth v. Bryner, 652 A.2d 909
(Pa.Super. 1995), this Court explained that “[a]lthough the Pringle court
found that calling police officers ‘goddamn fucking pigs’ was obscene under
this state’s disorderly conduct statute, the word ‘obscene’ was not defined. It
is important to define the word ‘obscene’ because obscenity is not within the
area of constitutionally protected speech under the First Amendment.”
Bryner, 652 A.2d at 911. This Court in Bryner then noted that, effective
December 19, 1990, the legislature defined “obscene” in the Crimes Code as
follows:
“Obscene.” Any material or performance, if:
(1) the average person applying contemporary community
standards would find that the subject matter taken as a whole
appeals to the prurient interest;
(2) the subject matter depicts or describes in a patently offensive
way, sexual conduct of a type described in this section; and
(3) the subject matter, taken as a whole, lacks serious literary,
artistic, political, educational or scientific value.
18 Pa.C.S. § 5903(b) (bold in original).
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