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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.: CP-22-SA-0000203-2014
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
DISSENTING MEMORANDUM BY PLATT, J.: FILED NOVEMBER 13, 2015
I respectfully dissent. For a sufficiency challenge, as noted by the
learned Majority, we view the evidence in the light most favorable to the
Commonwealth as verdict winner. Applying that standard, I would find here
that Appellant used language, indisputably obscene in common parlance and
understanding, three times, as fighting words to provoke, or risk provoking,
the victim, with the intent to cause annoyance or alarm to her and the five
children she had in tow, as well as recklessly creating a risk of harm to them
and to the other bystanders.
“[F]ighting words are words that by their very utterance inflict injury
or tend to incite an immediate breach of the peace. The use of such words
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S56005-15
is not a constitutionally protected right.” Commonwealth v. Hock, 728
A.2d 943, 946 n.3 (Pa. 1999) (citations and internal quotation marks
omitted).
Notably, this is not a case of confrontation with the police or other law
enforcement like McCoy, supra at 661, or “a single profane remark . . . to a
police officer” as in Hock. See Hock, supra at 412. Nor is it an obscenity
case like Miller v. California. I am concerned that the cases applying the
obscenity test in Miller to the disorderly conduct statute may misapprehend
the purpose of that test. Miller only sought to decide which literary works
or creative expressions that depicted sexual conduct were obscene. See
Miller, supra at 24. As such, it should never apply to a street
confrontation, like the one here.
Miller addresses whether the depiction of a sex act in a literary or
otherwise expressive “work” is “patently offensive” or “lacks serious literary,
artistic, political, or scientific value.” Miller, at 24. Our disorderly conduct
statute addresses public conduct which risks or creates “public
inconvenience, annoyance or alarm.” 18 Pa.C.S.A. § 5503 (a). Therefore,
extrapolating the obscenity test in Miller to a disorderly conduct charge will
never suffice for a conviction under the “obscene language” prong of section
5503(a)(3) because the statute addresses an entirely different situation than
whether a literary or other media depiction of sex acts is obscene. We
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presume “that the General Assembly does not intend a result that is absurd,
impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1).
This result also contradicts our rules of statutory construction, which,
in pertinent part, provide that “[e]very statute shall be construed, if
possible, to give effect to all its provisions[,]” 1 Pa.C.S.A. § 1921(a)
(emphasis added).
Further, disregarding obscene language on this basis misses the point
of the statute, which plainly proscribes the use of such provocative language
in a public confrontation (or, put another way, makes the use of such
language an element of the crime). “When the words of a statute are clear
and free from all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).
“Under the statute, whether a defendant’s words or acts rise to the
level of disorderly conduct hinges upon whether they cause or unjustifiably
risk a public disturbance. The cardinal feature of the crime of disorderly
conduct is public unruliness which can or does lead to tumult and disorder.”
Hock, supra at 946 (citation and internal quotation marks omitted).
Appellant here used provocative language which risked a public disturbance,
three separate times, causing annoyance and alarm. I would affirm the
judgment of sentence.
Therefore, I respectfully dissent.
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Com. v. Eberhart, E.
Combined Opinion