J-S68017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JASON ROY WAUGAMAN
Appellant No. 1859 WDA 2015
Appeal from the Judgment of Sentence September 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000831-2015
BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 31, 2016
Appellant, Jason Roy Waugaman, appeals the judgment of sentence of
90 days’ probation and costs imposed following his summary conviction of
disorderly conduct for making an obscene gesture. We reverse.
The trial court set forth the relevant facts of this case as follows:
Kacie Boeshore testified that the defendant is her ex-husband.
They have two children together who were ages six and seven at
the time of trial. On November 12, 2014, from the window of
her apartment, Ms. Boeshore observed the defendant pull into
the parking lot of her apartment complex at approximately 8:00
p.m. to drop their children off as part of a prearranged custody
agreement. Ms. Boeshore exited her apartment and went to the
parking lot to facilitate the transfer of the children. When she
got to the parking lot, she walked toward the defendant’s
vehicle. The defendant was outside of his vehicle giving the
children a hug and a kiss. Ms. Boeshore greeted her children
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*
Retired Senior Judge assigned to the Superior Court.
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and she and the children began to walk toward the apartment.
The defendant then said something to Ms. Boeshore but she
could not understand exactly what he was saying. She turned
and asked him what he had said. She took a few steps back
toward his vehicle and stood in front of the vehicle. Her children
were four or five feet behind her. The defendant got back into
his vehicle, slammed the door and accelerated toward Ms.
Boeshore. Ms. Boeshore was a few feet in front of the vehicle.
Just as he closed in on her, he quickly turned his vehicle. Ms.
Boeshore jumped back[] to avoid being struck. At trial she
approximated that his vehicle was as close as a "yardstick
worth" to her. As he drove off, the defendant displayed his
middle finger to Ms. Boeshore "as he continued squealing out of
[the] parking lot". Her children witnessed the entire scene and
were upset about it. Officer Good of the Hampton Township
Police Department, who responded to the scene, testified that
Ms. Boeshore was very upset, scared and concerned for the well-
being of herself and her children.
Trial Court Opinion, 5/9/16, at 1-2.
By Criminal Information filed on March 10, 2015, Appellant was
charged with recklessly endangering another person1 and disorderly conduct
(obscene language or gesture).2 Following a bench trial on September 30,
2015, the trial court found Appellant not guilty of recklessly endangering
another person, but guilty of disorderly conduct. The trial court imposed a
sentence of 90 days’ probation, as well as costs. On October 5, 2015,
Appellant filed a post-sentence motion, challenging the sufficiency of the
evidence for his disorderly conduct conviction. The trial court denied that
motion on October 27, 2015. In its opinion issued pursuant to Appellate
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1
18 Pa.C.S. § 2705.
2
18 Pa.C.S. § 5503(a)(3).
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Rule 1925(a), the trial court explained that it considered Appellant’s gesture
obscene because Appellant’s children “may well have seen their father’s
conduct in relation to their mother as explicitly sexual in nature.” Trial Court
Opinion, 5/9/16, at 6.
In this appeal, Appellant raises the following issue, as stated:
DOES THE DISPLAY OF A MIDDLE FINGER TO ONE’S EX-SPOUSE
DURING AN EXCHANGE OF CUSTODY OF CHILDREN
CONSTITUTE AN “OBSCENE GESTURE” UNDER PENNSYLVANIA’S
DISORDERLY CONDUCT STATUTE?
Appellant’s Brief at 4.
We apply the following standard of review:
When reviewing a sufficiency of the evidence claim, this Court
must review the evidence and all reasonable inferences in the
light most favorable to the Commonwealth as the verdict winner,
and we must determine if the evidence, thus viewed, is sufficient
to enable the fact-finder to find every element of the offense
beyond a reasonable doubt.
Commonwealth v. Goins, 867 A.2d 526, 527 (Pa. Super. 2004).
In this case, Appellant was convicted under 18 Pa.C.S. § 5503(a)(3),
which provides: “A person is guilty of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, he . . . uses obscene language, or makes an obscene gesture . . . .”
This Court has held that, for purposes of 18 Pa.C.S. § 5503(a)(3), words or
gestures are obscene if they meet the following test:
(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
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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. Kelly, 758 A.2d 1284, 1286 (Pa. Super. 2000) (quoting
Commonwealth v. Bryner, 652 A.2d 909, 912 (Pa. Super. 1995), which
quoted Miller v. California, 413 U.S. 15 (1973)).
In Kelly, a driver who encountered a work area on a highway said
“Fuck you” and gave “the finger” to a street department employee. 758
A.2d at 1285. This Court held that for purposes of Section 5503(a)(3), the
defendant’s expression of the “F-word” and display of his middle finger, used
to communicate disrespect, had “nothing to do with sex,” and therefore were
not obscene. Id. at 1288. Similarly, in Brockway v. Shepherd, the
federal district court for the Middle District of Pennsylvania held that, for
purposes of Section 5503(a)(3), displaying the middle finger was not
obscene. See 942 F. Supp. 1012, 1016-17 (M.D. Pa. 1996) (“[U]sing a base
term for sex does not change the disrespectful, offensive communication into
one that appeals to the prurient interest. It would be a rare person who
would be ‘turned on’ by the display of a middle finger or the language it
represents . . . .”).
Here, Appellant argues that his display of his middle finger was not
obscene, and that the evidence therefore was insufficient to support his
conviction under 18 Pa.C.S. § 5503(a)(3). The Commonwealth concedes
that Appellant’s gesture was not obscene under Section 5503(a)(3). See
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Commonwealth’s Brief at 10-11. Under the aforesaid caselaw, Appellant is
correct.
The trial court held that Appellant’s gesture was obscene because his
two children witnessed it and “may well have seen their father’s conduct in
relation to their mother as explicitly sexual in nature.” Trial Court Opinion,
5/9/16, at 6. We disagree. Under the Bryner/Miller test, the pertinent
inquiry in the Section 5503(a)(3) obscenity analysis is not whether any
particular person viewed the gesture as explicitly sexual,3 but “whether ‘the
average person, applying contemporary community standards’ would find
that the [gesture] appeals to the prurient interest.” Bryner, 652 A.2d at
912 (citation omitted); see Cohen v. California, 403 U.S. 15, 22 (1971)
(First Amendment context, where use of F-word was not obscene, exposure
to “unwitting” or “unsuspecting” viewers (women and children) could not
justify breach of the peace conviction). Under the Bryner test, Appellant’s
gesture was not obscene, and thus did not violate Pennsylvania’s disorderly
conduct statute.
Judgment of sentence reversed.
Judge Shogan joins the memorandum.
Judge Strassburger files a concurring statement.
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3
It is doubtful that Appellant’s six and seven year-old children perceived his
gesture as explicitly sexual.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2016
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Com. v. Waugaman, J.
Combined Opinion