Commonwealth v. Duncan

Opinion by

Van der Voort, J.,

On May 9, 1974, Deborah Hartman, a student at the University of Pennsylvania, was studying for an exam, alone in the lounge area of one of the dormitories. Between 12:30 A.M. and 1:00 A.M., appellant Darryl Duncan (who was not enrolled at the University) entered the lounge and spoke with Miss Hartman about using a *542hot plate which was in the lounge area. Miss Hartman instructed appellant in the use of the hot plate, whereupon appellant boiled some water and left the lounge. Miss Hartman continued studying for her exam until she fell asleep shortly before 3:30 A.M. When she awoke a few minutes later, appellant was on a hassock in front of her, with his face in close proximity to her face. Appellant then requested a favor of Miss Hartman, saying, “I never ate a pussy before.” Miss Hartman asked appellant to leave, but appellant continued his entreaties. In all, before leaving, appellant made his request “three or four times,” and Miss Hartman asked appellant as many times to leave. “Upset” about the incident, and becoming increasingly concerned because she knew that appellant was not a resident of that dormitory, at approximately 6:00 A.M., Miss Hartman reported the incident to her resident adviser. Appellant was apprehended in the building and charged with criminal solicitation, criminal trespass, and possession of marijuana.

On May 16, 1974, appellant appeared with counsel at a summary proceeding in Philadelphia Municipal Court, at which time the above charges were dismissed and appellant was convicted of harassment. At a trial on October 8, 1974 in Common Pleas Court before a judge sitting without a jury, appellant was again found guilty of harassment, and was sentenced to pay a fine of one hundred ($100.00) dollars, or, failing to pay by November 8, 1974, serve thirty days in the Philadelphia County Prison. Appeal was taken to our Court from the judgment of sentence.

Appellant first argues that the evidence presented was insufficient to sustain his conviction of harassment; specifically, that no evidence was presented to show that he had committed acts or had engaged in a course of conduct proscribed by the harassment statute, and that no evidence was presented to show that he possessed the requisite criminal intent. The statute in question, 18 Pa. C.S. §2709, provides as follows:

*543“A person commits a summary offense when, with intent to harass, annoy or alarm another person:
(3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.”

Appellant contends that words alone cannot constitute a course of conduct or repeatedly-committed acts within the meaning of the statute. We believe that speaking can constitute a course of conduct within the meaning of the statute, given the proper circumstances, and we find that the proper circumstances exist in the case before us. Testimony of the prosecutrix, Miss Deborah Hartman, established that appellant approached her as she dozed on a couch in a dormitory lounge area. With his face in close proximity to hers, appellant made repeated requests that Miss Hartman permit him to engage in an illegal sexual act with her. Although Miss Hartman asked appellant to leave, he persisted in his re. uests. Not until he had made three or four requests ar asked to leave three or four times did appellant finally desist. Miss Hartman made it clear from the beginning that she wanted to be left alone — that she was unfavorably disposed toward appellant’s proposition. Had appellant accepted the initial rebuttal and not persisted in his efforts to persuade the young lady, clearly no crime would have been committed: §2709 requires repetition of the offensive conduct. Miss Hartman’s replies made it clear, or should have made it clear to a reasonable person, that continued entreaties would be offensive to her. The lower court was justified in finding that appellant had engaged in a course of conduct which alarmed or seriously annoyed another person. Appellant argues that no evidence was presented to show that he possessed the requisite intent to harass. Our courts have often found that a defendant’s intent to commit a criminal act may *544be inferred from his words or actions when viewed in the light of all the attendant circumstances. See Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970); Commonwealth v. Tyrell, 405 Pa. 210, 174 A.2d 852 (1961); and Commonwealth v. White, 229 Pa. Superior Ct. 280, 323 A.2d 757 (1974). The lower court was also certainly justified in inferring from appellant’s repeated requests and rebuttals that appellant was acting deliberately and with the intention of annoying the prosecutrix.

Appellant next argues that his conviction under the harassment statute was based solely on a verbal communication and therefore was in violation of his rights under the First Amendment to the United States Constitution. We find this argument unpersuasive. In Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), the Supreme Court stated:

“[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

That obscenity is not within the area of constitutionally-protected speech was made clear by the Court in Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957): “All ideas having even the slightest redeeming social importance - unorthodox ideas, con*545troversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment- is the rejection of obscenity as utterly without redeeming social importance.” This position has been maintained in two recent cases, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L.Ed.2d 446 (1973), and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed. 2d 419 (1973), the former involving obscene movies, Miller dealing with a California statute regulating the distribution of pornography through the mail. Appellant relies in his brief on Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed. 2d 284 (1971), in which the Supreme Court reversed the conviction of a petitioner who had been convicted under a California statute of “maliciously and wilfully disturbing] the peace or quiet of any neighborhood or person ... by ... offensive conduct ....” The petitioner in Cohen had been arrested for wearing, in a courtroom corridor, a jacket with the words, “F— the draft.” Cohen is distinguishable from the case before us in several respects, most obviously in that constitutionally protected political comment, however distastefully presented, was being made by the petitioner in that case. We find that appellant’s lewd and non-political suggestions do not, in the case before us, have the protection of the First Amendment.

In recent years, our courts have given increased recognition to the right of individuals to be free of unreasonable intrusions on privacy. In 1949, the Supreme Court upheld an ordinance prohibiting the operation from vehicles in the streets of sound amplifiers or other instruments emitting “loud and raucous noises,” saying: “The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech *546in disregard of the rights of others would be harsh and arbitrary in itself.” Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949). In Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), the Supreme Court upheld a municipal ordinance prohibiting solicitors and peddlers from visiting private residences without the consent of the occupants, and in Rowan v. United States Post Office, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed. 2d 736 (1970), the Court upheld a federal statute, 39 USC §4009, which authorized mail recipients to require any mailer to remove the recipient’s name from the mailer’s lists and discontinue mailing to that person’s address. In both cases, the Court balanced the householder’s right to privacy with the right of others to communicate, finding in Rowan that “no one has a right to press even ‘good’ ideas on an unwilling recipient.” 397 U.S. at 738, 90 S.Ct. at 1491. Continuing in this line, the Court decided Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584, in 1972. In Colten, a friend of the petitioner had been stopped by a police officer for a traffic violation. In spite of several requests by the arresting officer that petitioner leave the area, petitioner refused, and was arrested for violating the state’s disorderly conduct statute. The Supreme Court upheld the conviction, citing the Kentucky appellate court decision which said that the petitioner had not been undertaking to exercise any constitutionally protected freedom, but rather appeared to have as his purpose causing inconvenience and annoyance. Colten is particularly relevant to the case before us, in that it involved a disorderly conduct statute - a statute that differs from harassment statutes of the type involved in the case before us only in its proscription of conduct which constitutes a nuisance to the general public rather than to a particular individual.

With the enactment of 18 Pa.C.S. §2709, our legislature has sought to prohibit such conduct, including speech, which is not Constitutionally protected and which *547is intended to alarm or seriously annoy another person. The purpose of the legislature, undoubtedly, was to extend to the individual the protections which have long been afforded the general public under disorderly conduct and breach of the peace statutes. The legislature has sought to prevent, not the initial impact of unwelcome intrusions upon privacy, but rather repeated assaults on individual privacy interests. In inviting the prosecutrix to engage in lewd and illegal1 activity, appellant in the case before us was not expressing social or political beliefs or ideas or engaging in any legitimate conduct; in pressuring the young lady with his repeated suggestions, appellant was going beyond communication to invade a substantial privacy interest in an intolerable manner.

Appellant’s final argument is that the harassment statute is vague and overbroad and therefore violative of the Fifth and Fourteenth Amendments to the United States Constitution. In United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954), the Supreme Court stated the general rule on vagueness: “The Constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” 347 U.S. at 617, 74 S.Ct. at 812.2 The Court has also stated that a statute will be found overbroad if it prohibits, in addition to conduct which the states may in the exercise of their police powers justifiably prohibit, conduct which is protected by the Constitution. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed. *5482d 222 (1972); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed. 2d 408 (1972). In Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed. 2d 214 (1971), relied upon by appellant, the Supreme Court struck down for vagueness and overbroadness a local ordinance which prohibited three or more persons from assembling on any sidewalk and conducting themselves in a manner annoying to persons passing by. The Ohio Supreme Court had not indicated upon whose sensitivity - that of the judge or jury, the arresting officer, or a hypothetical reasonable man - a violation depended, but concluded that the ordinance was clear on its face. The United States Supreme Court declared the ordinance unconstitutional as subjecting the right of assembly “to an unascertainable standard,” stating that men of common intelligence could only guess at its meaning. The Court ruled that the ordinance was also overbroad, since it authorized the punishment of activity which was constitutionally protected. We believe that Colten v. Kentucky, supra, is more pertinent to the case before us.

In Colten, the petitioner had been convicted of violating Ky.Rev. Stat. §437.016(1) (f) (Supp. 1968), which read as follows:

“(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

“(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse ....”

The Kentucky appellate court had construed the statute as proscribing only conduct which was not constitutionally protected and which had as its predominant purpose causing public inconvenience, annoyance, or alarm. The Supreme Court concluded that the Kentucky court had justifiably found that the petitioner at the time of his arrest was not disseminating or receiving information or otherwise attempting to exercise any constitutionally *549protected freedom, but rather had as his predominant purpose causing annoyance and inconvenience. The Court held that the statute as construed by the Kentucky courts was neither vague nor overbroad.

In enacting 18 Pa.C.S. §2709(8), our legislature did not intend to proscribe isolated acts which would be of only minor annoyance to the average person, or which are constitutionally protected. The statute requires a course of conduct or repeated acts which would seriously offend, we find, the average person; it requires the fact-finder to infer a specific intent on the part of the accused, and it specifies that the conduct must be of a non-legitimate nature - conduct which is not constitutionally protected. Looking at the statute (as we construe it) in light of Colten v. Kentucky, we find that the statute is not unconstitutionally vague or overbroad.

Judgment affirmed.

Jacobs, J., concurs in the result.

. 18 Pa.C.S. §3124 and 18 Pa.C.S. §3101.

. See Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed. 2d 605 (1974); Rowan v. United States Post Office, supra; Roth v. United States, supra; United States v. Woodard, 376 F.2d 136 (7th Cir. 1967).