J-A06041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KELLY MARIE D'ADDERIO                      :
                                               :
                       Appellant               :   No. 833 MDA 2018

              Appeal from the Judgment of Sentence April 16, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005317-2016


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 17, 2019

        Appellant Kelly Marie D’Adderio appeals from the judgment of sentence

imposed following her jury trial conviction for harassment.1 Appellant alleges

that the Commonwealth presented insufficient evidence to support her

conviction because Appellant engaged in speech that was protected under the

United States and Pennsylvania constitutions. Appellant also argues that the

harassment statute is unconstitutionally overbroad. We affirm.

        The trial court set forth the relevant facts of this appeal as follows:




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2709(a)(4).
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       On Friday, June 10, 2016, Appellant posted a message on her
       Facebook page[2] that read:

          Dear Miss Maria Memmi, you were a life-long friend of mine,
          my son’s Godmother even. The day you crossed the
          friendship line and married my ex was the day you exposed
          your true colors. Ironically, that was the least of my
          concerns. Sadly, I find some pleasure that he cheated on
          you. I kind of feel you had it coming anyway. You seem
          obsessed with playing mommy to my kids. Let’s see how
          that works out for you.        #slouchback      #truefriend
          #hunchcunt #pretendmom #hecheated.

       Soon thereafter, Appellant posted another message:

          Dear Derry Township School Board Member, the board
          president was notified about you turning a blind eye about
          drug use in my home by some of your students. After being
          notified, he called it a family matter. That’s fine. I would
          like to see what the PSBA thinks. If they think it’s a family
          matter, then I will let it rest.

       Maria Memmi is the current wife of Phillip D’Adderio, Appellant’s
       former husband. She is also a member of the Derry Township
       School Board. Ms. Memmi, who did not have a Facebook account
       at the time, became aware of the posts later that day when her
       stepchildren showed them to her. Ms. Memmi thereafter reported
       the posts to Detective Robert Matthew Dotts of the Derry
       Township Police, who in turn contacted Appellant and suggested
       that she take them down. Appellant did not follow this suggestion.
       She continued to post increasingly offensive comments
       throughout the weekend, referring to Ms. Memmi as “hunch cunt”
       and “whore,” questioning the paternity of Ms. Memmi’s minor
       daughter, and suggesting that Ms. Memmi was carrying on an
       inappropriate relationship with the detective.[fn4]



____________________________________________


2“Facebook is a social networking site where ‘[u]sers of that Web site may
post items on their Facebook page that are accessible to other users, including
Facebook ‘friends’ who are notified when new content is posted.’”
Commonwealth v. Mangel, 181 A.3d 1154, 1159 (Pa. Super. 2018) (citation
omitted).

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          [fn4][Appellant’s additional comments, posted on Facebook
          between June 10, 2016 and June 12, 2016, included the
          following:] “Dear Little Memmi Girl, [referring to Ms.
          Memmi’s 9-year-old daughter,] who is your daddy? The
          entire town is requesting a paternity test. Many others have
          told me Phil [D’Adderio] is your daddy. What is the truth?
          Call the popo hunchback.”

          “Dear hunch cunt, that’s what Phil called you. LOL. You’re
          fat, gross, and ugly. You can arrest me. I really don’t care
          as long as I get the truth out.”

          “Haha, hunch cunt called the police. I thought you weren’t
          on FB. You whore.”

          “Dear hunch cunt, talked to the detective. Are you sucking
          his cock? After all, he is a cutie patootie.”

          “When you ride Phil’s ginormous cock, do you ever think of
          the last pussy it was in? I would.”

Trial Ct. Op., 7/19/18, at 3-4 (record citations omitted).

        The Commonwealth filed a criminal complaint against Appellant on June

16, 2016. The complaint alleged that Appellant directed multiple Facebook

posts to Ms. Memmi “that were vulgar and inflammatory,” and Appellant

“called [Ms. Memmi] derogatory names, questioned the paternity of her child,

and challenged her to pursue legal prosecution.” 3 Criminal Compl., 6/16/16,

at 3.   On March 13, 2017, the Commonwealth filed a criminal information

charging Appellant with harassment.



____________________________________________


3The complaint also noted that the Commonwealth had charged Appellant at
another docket number with a separate count of harassment, 18 Pa.C.S. §
2709(a)(3), for phone calls and text messages Appellant made to Ms. Memmi
on May 27, 2016. Ultimately, a jury acquitted Appellant of that separate
charge.

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       Appellant filed an omnibus pretrial motion on December 5, 2017, which

included a motion to quash or dismiss the criminal information.             Appellant

argued that, “to the extent that the Commonwealth is charging [Appellant]

solely with engaging in ‘lewd’ and ‘lascivious’ speech, the information must be

dismissed because such speech is protected speech under the First

Amendment.” Omnibus Pretrial Mot., 12/5/17, at ¶12. The trial court denied

Appellant’s motion.

       Following trial, a jury convicted Appellant of one count of harassment.

On April 16, 2018, the trial court sentenced Appellant to twelve months of

probation, one hundred hours of community service, plus fines and costs. The

court also ordered Appellant to have no contact with the child referenced in

the Facebook posts, until the child reaches age eighteen.

       Appellant timely filed a notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The trial court

filed a responsive opinion concluding that the Commonwealth presented

sufficient   evidence      to   support        the   conviction.   Specifically,   the

Commonwealth’s evidence enabled the jury to determine that Appellant

posted lewd messages on Facebook, which served no legitimate purpose of

communication, with the intent to harass, annoy, or alarm the complainant.4
____________________________________________


4 The trial court acknowledged Appellant’s argument “that her conviction is an
unconstitutional restriction on speech unless it is based either on comments
made directly to the victim, or on obscene comments about the victim.” Trial
Ct. Op. at 6. However, the court did not address this argument, “[b]ecause
the jury did not make any specific findings regarding these distinctions. . . .”
Id.

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The court further concluded that the statute governing harassment is not

unconstitutionally   overbroad,    relying   on   this   Court’s    holding   in

Commonwealth v. Duncan, 363 A.2d 803, 808 (Pa. Super. 1976).

      Appellant now raises two questions for this Court’s review:

      [1]. Was not the evidence insufficient to support [Appellant’s]
      conviction for harassment, 18 Pa.C.S. § 2709(a)(4), where
      [Appellant’s] engaging in purportedly lewd and lascivious speech
      about―not to―another person is protected speech under the
      United States and Pennsylvania Constitutions and where
      [Appellant’s] speech cannot be construed as obscene?

      [2]. Is the version of harassment set forth at 18 Pa.C.S. §
      2709(a)(4) unconstitutionally overbroad on its face because a
      substantial number of its applications criminalize constitutionally
      protected free speech?

Appellant’s Brief at 5 (full capitalization and quotation marks omitted)

(emphasis in original).

      In her first issue, Appellant contends her sufficiency challenge “is based

on the premise that her conduct was protected speech under the Federal and

Pennsylvania Constitutions,” and this Court must engage in an independent

review of the record to ensure that “the judgment does not constitute a

forbidden intrusion on the field of free expression.” Id. at 14, 15 (citation

omitted). Appellant acknowledges that the jury was not required to make a

finding as to whether her remarks were directed “to” or “about” the

complainant.   Id. at 18.    Appellant contends, however, “[t]he Facebook

postings must be construed as communications about the complainant and




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not to the complainant, especially because the complainant did not maintain

a Facebook account.” Id. at 19 (emphasis in original).

       Appellant insists that criminal liability cannot attach to lewd and

lascivious   speech     “about”     another    person,   because   such   speech   is

constitutionally protected.5        Id.    Appellant claims that her harassment

“conviction can survive only if [Appellant] made ‘obscene’ communications

about the complainant, as that word is defined in the constitutional

jurisprudence.” Id. Further, Appellant argues that her speech did not satisfy

the definition of obscenity, because the posts were “not an appeal to the

prurient interests of the intended Facebook audience.” Id. at 29. Appellant

concludes that “the evidence was insufficient to sustain a conviction for the

version of harassment at [Section] 2709(a)(4) to the extent that that

provision can be interpreted consistently with the free speech protections of

the First Amendment.” Id. at 30.

       The Pennsylvania Crimes Code defines the offense of harassment, in

pertinent part, as follows:
____________________________________________


5  Appellant cites numerous federal cases that generally stand for the
proposition that speech cannot be construed as criminal conduct merely
because it is crude or arouses contempt. See Appellant’s Brief at 21-22. For
her contention that lewd and lascivious speech “about” another person is
constitutionally protected, Appellant relies on a law review article and a
decision from the New Jersey Supreme Court. Id. at 22-25. However,
Appellant has not cited, nor has this Court found, any binding case law
adopting the distinction between communications “to” and “about” a person
referenced by Appellant. Consequently, we emphasize that this Court is not
bound by the decisions of other states’ courts and the federal courts, except
for the Supreme Court of the United States. See Commonwealth v. Lukach,
163 A.3d 1003, 1009 (Pa. Super. 2017).

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      § 2709. Harassment

      (a) Offense defined.―A person commits the crime of
      harassment when, with intent to harass, annoy or alarm another,
      the person:

                                 *    *    *

            (4) communicates to or about such other person any lewd,
            lascivious, threatening or obscene words, language,
            drawings or caricatures[.]

18 Pa.C.S. § 2709(a)(4).

      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 is 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.

Duncan, 363 A.2d at 807.

      Where an issue raises constitutional concerns, this Court “must make

an independent constitutional judgment on the facts of the case as to whether

the material involved is constitutionally protected.” Commonwealth v. Lebo,

795 A.2d 987, 991 (Pa. Super. 2002) (citations and quotation marks omitted).

Nevertheless, “it has never been deemed an abridgment of freedom of speech

or press to make . . . conduct illegal merely because the conduct was in part

initiated, evidenced, or carried out by means of language, either spoken,

written or printed.”   Commonwealth v. Schierscher, 668 A.2d 164, 171

(Pa. Super. 1995) (quoting Cox v. Louisiana, 379 U.S. 559, 563 (1965)).




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      “[I]t is well understood that the right of free speech is not absolute at

all times and under all circumstances.” Chaplinsky v. New Hampshire, 315

U.S. 568, 571 (1942) (footnote omitted). “There are certain well-defined and

narrowly limited classes of speech, the prevention and punishment of which

have never been thought to raise any Constitutional problem.” Id. at 571-72

(footnotes omitted); see also United States v. Petrovic, 701 F.3d 849, 855-

56 (8th Cir. 2012) (explaining that First Amendment protections are often less

rigorous where matters of purely private significance are at issue, because

restricting speech on private matters does not implicate the same

constitutional concerns as limiting speech on matters of public interest;

further, the public had no legitimate interest in the private sexual activities of

the victim or in the embarrassing facts revealed about her life). “Resort to

epithets or personal abuse is not in any proper sense communication of

information or opinion safeguarded by the Constitution, and its punishment as

a criminal act would raise no question under that instrument.” Chaplinsky,

315 U.S. at 572 (citation omitted).

      Instantly, Appellant’s Facebook posts did not express social or political

beliefs or constitute legitimate conduct.     See Duncan, 363 A.2d at 807

(explaining that the defendant did not engage in any legitimate conduct when

he made repeated requests for the victim to participate in lewd acts). Rather,

Appellant made lewd comments, including sexualized language and references

to the complainant’s sexual activity, which could only serve to harass, annoy

or alarm the complainant. See Commonwealth v. Cox, 72 A.3d 719, 721-

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J-A06041-19



22 (Pa. Super. 2013) (holding that sufficient evidence supported a conviction

under Section 2709(a)(4), where the defendant communicated “lewd”

sentiments in a Facebook post indicating that the victim was sexually active

and suffered from a sexually transmitted disease; noting that the definition of

“lewd” is “sexually unchaste or licentious”).6

       To the extent one can argue that “lewd” and “lascivious” must be

interpreted as synonymous with “obscene,” the Pennsylvania Supreme Court

has declined to validate such an argument, albeit in a different statutory

context. See Commonwealth v. MacDonald, 347 A.2d 290, 304 (Pa. 1975)

(plurality) (rejecting the Commonwealth’s argument that “lewd” is a synonym

for “obscene” when analyzing a statute that authorized an injunction against

the use of any building for the purpose of fornication, lewdness, assignation,

and/or prostitution; when viewed in context, the statute proscribed the use of

any building for purposes involving illicit sexual conduct, thereby strongly

indicating a legislative intention to prescribe only purposes of that type by

using the word “lewdness”). Moreover, “[w]hen reviewing a statute, we may

not render language superfluous or assume language to be mere surplusage.”

Commonwealth v. Dischman, 195 A.3d 567, 571 (Pa. Super. 2018)

(citation and quotation marks omitted). Because “lewd” is not synonymous

____________________________________________


6 Appellant notes that Cox “did not assert any constitutional claim based on
freedom of speech under the First Amendment.” Appellant’s Brief at 20.
Although Appellant is correct in this regard, Cox remains instructive for the
proposition that Facebook posts regarding a complainant’s sexual activity can
be characterized as “lewd” under Section 2709(a)(4).

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J-A06041-19



with “obscene,” we do not examine whether Appellant’s posts also satisfy the

definition of “obscene,” because the posts qualify as “lewd” under existing

Pennsylvania case law. See Cox, 72 A.3d at 722.

      Based upon our own independent review of the record, Appellant’s

comments are not entitled to First Amendment protection, regardless of

whether the posts were “to” or “about” the complainant. See Chaplinsky,

315 U.S. at 571-72; Lebo, 795 A.2d at 991; Duncan, 363 A.2d at 807.

Therefore, Appellant’s first issue warrants no relief.

      In her second issue, Appellant contends that “a law may be invalidated

as overbroad if a substantial number of its applications are unconstitutional,

judged in relation to the statute’s plainly legitimate sweep.” Appellant’s Brief

at 31 (citations and quotation marks omitted). Further, Appellant relies on

Commonwealth v. Omar, 981 A.2d 179, 185-86 (Pa. 2009), for the

proposition that “a litigant asserting an overbreadth challenge is not required

to demonstrate that the statute violated his own protected speech, but instead

may prove a statute’s unconstitutionality by demonstrating that the statute’s

very existence may cause others not before the court to refrain from

constitutionally protected speech or expression.” Id. at 32 (quotation marks

omitted). Appellant concludes that Section 2709(a)(4) is overbroad, because

it criminalizes “lewd and/or lascivious speech about another person[, which]

is constitutionally protected.” Id. at 33 (emphasis in original).

      “As the constitutionality of a statute is a pure question of law, our

standard of review is de novo and our scope of review is plenary.”

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Commonwealth v. Berry, 167 A.3d 100, 104 (Pa. Super. 2017) (citation

omitted).

      [T]here is a strong presumption in the law that legislative
      enactments do not violate the constitution. Moreover, there is a
      heavy burden of persuasion upon one who challenges the
      constitutionality of a statute. While penal statutes are to be
      strictly construed, the courts are not required to give the words of
      a criminal statute their narrowest meaning or disregard the
      evident legislative intent of the statute. A statute, therefore, will
      only be found unconstitutional if it “clearly, palpably and plainly”
      violates the constitution.

Commonwealth v. Grove, 170 A.3d 1127, 1144-45 (Pa. Super. 2017)

(citation omitted).

      “An overbreadth challenge is generally limited to issues falling under the

First Amendment of the United States Constitution, protecting the right to free

speech.” Omar, 981 A.2d at 185 (citation omitted).

      We have recognized that the Constitution provides significant
      protection from overbroad laws that chill speech within the First
      Amendment’s vast and privileged sphere.            When protected
      expression, such as political speech, is at issue, both the U.S.
      Supreme Court and [the Pennsylvania Supreme] Court have
      recognized that the overbreadth doctrine permits the facial
      invalidation of laws that inhibit the exercise of First Amendment
      rights if the impermissible applications of the law are substantial
      when judged in relation to the statute’s plainly legitimate sweep.
      It has been the judgment of [the Pennsylvania Supreme] Court
      that the possible harm to society in permitting some unprotected
      speech to go unpunished is outweighed by the possibility that
      protected speech of others may be muted and perceived
      grievances left to fester because of the possible inhibitory effects
      of overly broad statutes.

                                  *     *      *




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J-A06041-19


       The standard for determining whether a statute is overbroad is
       well established:

          A statute is unconstitutionally overbroad only if it punishes
          lawful constitutionally protected activity as well as illegal
          activity.   Thus, in determining whether a statute is
          unconstitutional due to overbreadth, a court’s first task is to
          determine whether the enactment reaches a substantial
          amount of constitutionally protected conduct.               The
          overbreadth of a statute must not only be real, but
          substantial as well, judged in relation to the statute’s plainly
          legitimate sweep. Consequently, if a statute’s overbreadth
          is substantial, it may not be enforced against anyone until
          it is narrowed to reach only unprotected activity.

Id. at 185-86 (citations, quotation marks, and brackets omitted).

       Regarding Section 2709, this Court has determined that a prior version

of the statute passed constitutional muster:

       In enacting 18 Pa.C.S. [§] 2709(3), 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 . . . 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.

Duncan, 363 A.2d at 808.7

       Instantly, Section 2709(a)(4) requires an intent to harass, and it seeks

to preclude communications lacking some legitimate purpose. As such, the

____________________________________________


7 The version of Section 2709 at issue in Duncan defined the offense of
harassment as follows: “A person commits a summary offense when, with
intent to harass, annoy or alarm another person[, he or she] engages in a
course of conduct or repeatedly commits acts which alarm or seriously annoy
such other person and which serve no legitimate purpose.” Duncan, 363
A.2d at 805. We note that the current version of Section 2709(a)(4) is graded
as a misdemeanor of the third degree.

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statute does not punish constitutionally protected speech, and the statute is

not facially overbroad. See id.; see also Commonwealth v. Hendrickson,

724 A.2d 315, 318 (Pa. 1999) (evaluating an overbreadth challenge to the

now-repealed harassment by communication statute and concluding that the

defendant was not convicted for exercising his constitutional right to free

speech; the statute at issue was directed at the harassing nature of the

communications,     which      the   legislature    had   a   legitimate   interest    in

proscribing).   In light of the applicable scope and standard of review and

relevant   case   law,    we     conclude    that    Section    2709(a)(4)     is     not

unconstitutionally overbroad. See Omar, 981 A.2d at 185-86; Berry, 167

A.3d at 104. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

      Judge Ott joins in the memorandum.

      Judge Pellegrini noted to dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/17/2019




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