J-A06028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    PAMELA MUELLER                             :
                                               :
                       Appellant               :       No. 1045 EDA 2019

         Appeal from the Judgment of Sentence Entered March 13, 2019
               In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-SA-0001201-2018


BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY KING, J.:                         Filed: March 25, 2020

        Appellant, Pamela Mueller, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following her bench

trial conviction for disorderly conduct, at 18 Pa.C.S.A. § 5503(a)(3). On June

8, 2018, police conducted a traffic stop in Brookhaven Borough. During the

course of the stop, Appellant, who was a bystander and not involved with the

traffic stop, approached the scene.            Appellant stood over the vehicle’s

occupants, and Officer Hughes asked her to step back. Appellant refused to

comply. Officer Hughes asked Appellant to step away from the immediate

area, and he told her that she could observe from across the street. Officer

Barth arrived, spoke with Appellant, and asked her to move. Appellant began


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*   Former Justice specially assigned to the Superior Court.
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to videotape the scene with her cell phone and refused to move. Officer Barth

threatened to arrest Appellant if she did not move, and Appellant moved into

the intersection and obstructed traffic. Officer Barth asked Appellant to move

again. Appellant said: “This is fucking ridiculous.” Appellant subsequently

walked away and went to work.         The police issued a citation, charging

Appellant with disorderly conduct at Section 5503(a)(3) (uses obscene

language or makes obscene gesture) and (a)(4) (creates hazardous or

physically offensive condition by any act which serves no legitimate purpose).

      On September 4, 2018, a district magistrate found Appellant guilty of

disorderly conduct under subsection (a)(3). Appellant timely filed a summary

appeal on September 25, 2018. On March 12, 2019, the court conducted a

trial de novo and found Appellant not guilty under subsection (a)(4) but guilty

under subsection (a)(3).    The court initially imposed a $500.00 fine but

amended the sentence the next day, reducing the fine to $300.00. Appellant

timely appealed on April 8, 2019, and subsequently complied with the court’s

Pa.R.A.P. 1925(b) order. On appeal, Appellant claims: (1) the Commonwealth

presented insufficient evidence to sustain her disorderly conduct conviction;

and (2) Appellant’s conviction for disorderly conduct violates the First

Amendment of the United States Constitution.

         When reviewing a claim that the trial court erred in
         determining the evidence was sufficient to prove an offense,
         an appellate court must assess the evidence and all
         reasonable inferences from that evidence most favorably to
         the verdict winner. As long as the evidence and inferences
         provide sufficient information to establish proof beyond a

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         reasonable doubt, the evidence is sufficient. Further, the
         Commonwealth can meet its burden of reasonable doubt by
         means of wholly circumstantial evidence.

Commonwealth v. Pennix, 176 A.3d 340, 342-43 (Pa.Super. 2017).

      A person is guilty of disorderly conduct under Section 5503(a)(3) if,

“with intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, [she]…uses obscene language, or makes an obscene

gesture.” 18 Pa.C.S.A. § 5503(a)(3). Where a person uses profane language

or other “angry words” that are not used to describe an act of sex or to appeal

to anyone’s prurient interest, this Court has found insufficient evidence to

sustain a conviction under Section 5503(a)(3).      See, e.g., Pennix, supra

(reversing conviction under subsection (a)(3) where appellant became

agitated during search of her book bag in courthouse and screamed: “Fuck

you I ain’t got time for this,” “Fuck you police” and “I don’t got time for you

fucking police”; while appellant’s words were disrespectful, insulting and

offensive, they were not “obscene” within meaning of Section 5503(a)(3));

Commonwealth v. McCoy, 69 A.3d 658 (Pa.Super. 2013), appeal denied,

623 Pa. 761, 83 A.3d 414 (2014) (reversing conviction under subsection

(a)(3) where appellant shouted “fuck the police” multiple times during funeral

procession for police officer; record showed no evidence that appellant’s chant

was intended to appeal to anyone’s prurient interest or to describe sexual

conduct in patently offensive way).

      Instantly, the record shows Appellant uttered “this is fucking ridiculous,”


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J-A06028-20


after police had repeatedly asked her to back away from the scene of a traffic

stop. Nothing in the record indicates that Appellant intended to describe an

act of sex or appeal to anyone’s prurient interest.     See Pennix, supra;

McCoy, supra. The Commonwealth agrees the evidence was insufficient to

sustain the conviction under Section 5503(a)(3).1 Accordingly, we reverse

Appellant’s conviction and vacate the judgment of sentence.2

       Conviction reversed; judgment of sentence vacated.      Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/20




____________________________________________


1 In light of the Commonwealth’s concession in its brief that the evidence was
insufficient to sustain Appellant’s conviction, we are displeased that defense
counsel chose to argue this matter instead of submitting it on the briefs.

2Due to our disposition, we do not have to consider Appellant’s challenge
under the First Amendment.

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