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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


*
    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
____________________________________________


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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