J-A12037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

GUY ROBERT ROHM

                          Appellant                     No. 1610 WDA 2016


        Appeal from the Judgment of Sentence September 19, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-SA-0001522-2016


BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 22, 2017

      Appellant, Guy Robert Rohm, appeals from the judgment of sentence

entered on September 19, 2016.            We vacate Appellant’s judgment of

sentence.

      On June 10, 2016, Pittsburgh Police Officer Casey Waha instituted

summary criminal proceedings against Appellant by filing a non-traffic

citation against Appellant in the magisterial district court.          Within the

citation, Officer Waha averred that, on June 2, 2016, Appellant “was highly

intox[icated,] causing a scene . . . [,] calling the officers ‘liars’ and ‘assholes’

[and] stating don’t we have anything better to do.”          Non-Traffic Citation,

6/10/16, at 1.     Officer Waha charged Appellant with disorderly conduct

under 18 Pa.C.S.A. § 5503(a)(3). This subsection declares:

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

                                      ...

             (3) uses obscene language, or makes an obscene
             gesture[.]

18 Pa.C.S.A. § 5503(a)(3).

        Following the issuance of a summons and Appellant’s plea of not

guilty, Appellant was tried before the magisterial district court on July 21,

2016.     That day, the magisterial district court found Appellant guilty of

violating 18 Pa.C.S.A. § 5503(a)(3) and sentenced Appellant to pay a fine of

$100.00. Magisterial District Court Docket at 2-3.

        Appellant filed a timely notice of appeal to the court of common pleas

and, on September 19, 2016, the trial court held Appellant’s trial de novo.

See Pa.R.Crim.P. 462. During the trial, Officer Waha testified that, on June

2, 2016:

          my partner [and I] received a 911 call . . . for a disorderly
          person in a Wine and Spirits store. When we arrived on
          scene [Appellant] was not there. We were told by the store
          clerk that he fled out the back of the store. . . .

          We met up with [Appellant] at the intersection of Mitchell
          and Hall where he proceeded to yell at officers, call us
          assholes and liars, that we had no other business but to
          harass him. . . . He continued to make such a scene that
          neighbors heard him yelling and screaming at officers. They
          came out to their front porches to see what was going on. .
          . . They heard [Appellant] screaming at us from their
          houses, came out to their front porch to see what was going
          on. I would say it was four of the neighbors that came out.
          One of them had a cell phone out and was videotaping.

N.T. Trial, 9/16/16, at 4-6 and 8.

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      The trial court found Appellant guilty of the charged crime and

sentenced Appellant to pay a fine of $200.00, plus court costs. Id. at 14;

Written Judgment of Sentence, 9/19/16, at 1; Trial Court Docket Sheet at 2.

Appellant filed a timely notice of appeal and Appellant now raises one claim

to this Court:

        Is [Appellant] entitled to a reversal of the affirmed guilty
        verdict due to a lack of sufficient evidence and a violation of
        the United States Constitutional right to freedom of
        speech[?]

Appellant’s Brief at 4.

      We review Appellant’s sufficiency of the evidence claim under the

following standard:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at
        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt.             In
        applying the above test, we may not weigh the evidence
        and substitute our judgment for [that of] the fact-finder. In
        addition, we note that the facts and circumstances
        established by the Commonwealth need not preclude every
        possibility of innocence.        Any doubts regarding a
        defendant’s guilt may be resolved by the fact-finder unless
        the evidence is so weak and inconclusive that as a matter of
        law no probability of fact may be drawn from the combined
        circumstances. The Commonwealth may sustain its burden
        of proving every element of the crime beyond a reasonable
        doubt by means of wholly circumstantial evidence.
        Moreover, in applying the above test, the entire record must
        be evaluated and all evidence actually received must be
        considered. Finally, the trier of fact while passing upon the
        credibility of witnesses and the weight of the evidence
        produced, is free to believe all, part or none of the
        evidence.


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J-A12037-17



Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc) (internal quotations and citations omitted).

      Appellant was charged with and convicted of committing disorderly

conduct under 18 Pa.C.S.A. § 5503(a)(3). Again, this subsection declares:

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

                                      ...

            (3) uses obscene language, or makes an obscene
            gesture[.]

18 Pa.C.S.A. § 5503(a)(3).

      On appeal, Appellant claims that the evidence was insufficient to

support his disorderly conduct conviction, as the language and gestures he

used on June 2, 2016 do not “satisf[y] the United States Supreme Court’s

test for obscenity.” Appellant’s Brief at 10. Moreover, during oral argument

in this case, the Commonwealth conceded that Appellant was entitled to

relief on appeal, as the evidence was insufficient to support his conviction for

violating 18 Pa.C.S.A. § 5503(a)(3).        We agree with Appellant and the

Commonwealth. As this Court has explained:

        The first inquiry is what is the definition of “obscene” for
        purposes of 18 Pa.C.S. § 5505(a)(3). This Court has held
        that, for purposes of a disorderly conduct statute prohibiting
        the use of obscene language, language is obscene if it
        meets the test set forth in Miller v. California, 413 U.S. 15
        (1973):




                                     -4-
J-A12037-17


             (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 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. Bryner, 652 A.2d 909, 912 (Pa. Super.
        1995).

        Moreover, the offense of disorderly conduct is not intended
        as a catchall for every act which annoys or disturbs people;
        it is not to be used as a dragnet for all the irritations which
        breed in the ferment of a community. It has a specific
        purpose; it has a definite objective, it is intended to
        preserve the public peace; it has thus a limited periphery
        beyond which the prosecuting authorities have no right to
        transgress any more that the alleged criminal has the right
        to operate within its clearly outlined circumference.

Commonwealth v. McCoy, 69 A.3d 658, 665 (Pa. Super. 2013) (some

internal citations and quotations omitted).

      The evidence in this case demonstrates that, on June 2, 2016,

Appellant caused a neighborhood disturbance by yelling at the officers who

were present and by calling the officers “assholes and liars.”      N.T. Trial,

9/16/16, at 4-6 and 8.     While Appellant’s actions and language that night

might have violated the disorderly conduct statute, they did not violate the

specific subsection under which Appellant was charged and convicted – 18

Pa.C.S.A. § 5503(a)(3). To paraphrase our opinion in McCoy, we hold as to

Appellant:

        Section (a)(3), under which [Appellant] was convicted,
        addresses only obscene language or gestures and conviction
        under this section must be the result of such obscene

                                     -5-
J-A12037-17


        behavior. We have reviewed the official record and must
        conclude there is no evidence that [Appellant’s language]
        was intended to appeal to anyone's prurient interest nor did
        it describe, in a patently offensive way sexual conduct.
        There was no evidence of obscene language or gestures and
        therefore we agree with [Appellant and the Commonwealth]
        that [Appellant’s] conviction of disorderly conduct must be
        set aside.

McCoy, 69 A.3d at 666.

     We thus vacate Appellant’s judgment of sentence.

     Judgment of sentence vacated. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




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