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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ELIZABETH ANN EBERHART,

                            Appellant                   No. 152 MDA 2015


          Appeal from the Judgment of Sentence November 17, 2014
              in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-SA-0000203-2014


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

DISSENTING MEMORANDUM BY PLATT, J.:                FILED NOVEMBER 13, 2015

        I respectfully dissent.     For a sufficiency challenge, as noted by the

learned Majority, we view the evidence in the light most favorable to the

Commonwealth as verdict winner. Applying that standard, I would find here

that Appellant used language, indisputably obscene in common parlance and

understanding, three times, as fighting words to provoke, or risk provoking,

the victim, with the intent to cause annoyance or alarm to her and the five

children she had in tow, as well as recklessly creating a risk of harm to them

and to the other bystanders.

        “[F]ighting words are words that by their very utterance inflict injury

or tend to incite an immediate breach of the peace. The use of such words
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S56005-15


is not a constitutionally protected right.”   Commonwealth v. Hock, 728

A.2d 943, 946 n.3 (Pa. 1999) (citations and internal quotation marks

omitted).

      Notably, this is not a case of confrontation with the police or other law

enforcement like McCoy, supra at 661, or “a single profane remark . . . to a

police officer” as in Hock. See Hock, supra at 412. Nor is it an obscenity

case like Miller v. California. I am concerned that the cases applying the

obscenity test in Miller to the disorderly conduct statute may misapprehend

the purpose of that test. Miller only sought to decide which literary works

or creative expressions that depicted sexual conduct were obscene.          See

Miller, supra at 24.         As such, it should never apply to a street

confrontation, like the one here.

      Miller addresses whether the depiction of a sex act in a literary or

otherwise expressive “work” is “patently offensive” or “lacks serious literary,

artistic, political, or scientific value.” Miller, at 24. Our disorderly conduct

statute     addresses   public   conduct   which   risks   or   creates   “public

inconvenience, annoyance or alarm.” 18 Pa.C.S.A. § 5503 (a). Therefore,

extrapolating the obscenity test in Miller to a disorderly conduct charge will

never suffice for a conviction under the “obscene language” prong of section

5503(a)(3) because the statute addresses an entirely different situation than

whether a literary or other media depiction of sex acts is obscene.          We




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presume “that the General Assembly does not intend a result that is absurd,

impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1).

      This result also contradicts our rules of statutory construction, which,

in pertinent part, provide that “[e]very statute shall be construed, if

possible, to give effect to all its provisions[,]” 1 Pa.C.S.A. § 1921(a)

(emphasis added).

      Further, disregarding obscene language on this basis misses the point

of the statute, which plainly proscribes the use of such provocative language

in a public confrontation (or, put another way, makes the use of such

language an element of the crime). “When the words of a statute are clear

and free from all ambiguity, the letter of it is not to be disregarded under

the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

      “Under the statute, whether a defendant’s words or acts rise to the

level of disorderly conduct hinges upon whether they cause or unjustifiably

risk a public disturbance.   The cardinal feature of the crime of disorderly

conduct is public unruliness which can or does lead to tumult and disorder.”

Hock, supra at 946 (citation and internal quotation marks omitted).

Appellant here used provocative language which risked a public disturbance,

three separate times, causing annoyance and alarm.            I would affirm the

judgment of sentence.

      Therefore, I respectfully dissent.




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