J-S56005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(s): CP-22-SA-0000203-2014


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

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 13, 2015

       Appellant, Elizabeth Ann Eberhart, appeals from the judgment of

sentence entered following her conviction of disorderly conduct.             After

careful consideration, we vacate Appellant’s judgment of sentence.

       The trial court summarized the factual history of this case as follows:

             Sandra B[ry]ington testified that on July 11, 2014, in the
       early morning hours, she had taken her three children and two
       of their friends outside to play. The children wanted to ride their
       bikes and scooters and Ms. Bryington wanted to take the
       garbage out. Ms. Bryington’s youngest son had gotten his
       wheels s[t]uck on the sidewalk. After Ms. Bryington got the
       child unstuck, she heard someone call out “you need to watch
       your f---ing (expletive deleted) kids.” Ms. Bryington noticed that
       [Appellant] was standing there with another lady and [Appellant]

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      starting calling Ms. Bryington a “f ---ing (expletive deleted)
      bitch.”

             Ms. Bryington further testified that since she had the
      children all around her and she did not know who this lady was,
      [she] asked [Appellant] and [Appellant’s] friend if they would
      like the police called. One of the neighbors told Ms. Bryington
      that she needed to call the state police.          At this point,
      [Appellant] had exited her vehicle and started walking towards
      Ms. Bryington yelling “you don’t know who the f - -- (expletive
      deleted) you’re messing with.”        Once this happened, Ms.
      Bryington had the children stay with neighbors and borrowed a
      neighbor’s cell phone to call the state police. Ms. Byrington
      stayed with neighbors until the police told her she could go back
      to her apartment.

            Trooper Nicholas T. Zulick, a Pennsylvania State Police
      employee, testified that on the date of the incident he observed
      that Ms. Bryington was visibly upset and was crying over an
      incident that occurred earlier in the day. Trooper Zulick talked
      to neighbors who verified that the incident that [sic] had taken
      place. Trooper Zulick testified that “everybody he talked to said
      that there was cursing and yelling that they could clearly hear
      away from the scene.”

             [Appellant] testified that she lives in Millersburg and was
      visiting a friend that day. [Appellant] testified that she was very
      happy that day and wanted to show her friend a “new-to-me
      vehicle” that she recently purchased. [Appellant] continued to
      testify that she had to go to work and did not have time to have
      a cigarette with her friend. When [Appellant] got into her car,
      her friend told her to watch out for the children behind her.
      [Appellant] testified that she did not exit the vehicle and
      exchange words with Ms. Bryington.           However, [Appellant]
      continue[d] to testify that words were exchanged and she said
      “do you think I’m afraid of you?” At this point, [Appellant’s]
      friend had gone inside because she did not want to “put up with
      this.”

Trial Court Opinion, 2/10/15, at 2-3 (internal citations omitted).




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        As a result of this incident, Appellant was charged with disorderly

conduct1 and harassment.2          On November 17, 2014, following a summary

appeal hearing before the common pleas court, Appellant was found guilty of

disorderly conduct and sentenced to pay a $100 fine, along with costs in the

amount of $125.50 and a judicial fee of $33.50. Appellant was acquitted of

harassment.

        Appellant filed a post-sentence motion, and the Commonwealth filed

an answer to that motion. By order entered December 29, 2014, the trial

court denied Appellant’s post-sentence motion.        Appellant filed a timely

notice of appeal to this Court on January 13, 2015. Both Appellant and the

trial court complied with the requirements of Pa.R.A.P. 1925.

        Appellant presents the following issues for our review, which we

reproduce verbatim:

        I.    Whether the evidence presented by the Commonwealth
        was insufficient to prove beyond a reasonable doubt that
        Appellant committed the crime of disorderly conduct where:

              A)    the Commonwealth failed to prove that Appellant
              used obscene language or made an obscene gesture?

              B)    the Commonwealth failed to prove that Appellant
              acted with the intent to cause public inconvenience,
              annoyance or alarm, or recklessly created a risk thereof,
              and

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1
    18 Pa.C.S. § 5503(a)(3).
2
    18 Pa.C.S. § 2709(a)(3).



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Appellant’s Brief at 5.

       We start by noting that although Appellant presents two distinct issues

for review in her appellate brief, a review of her Pa.R.A.P. 1925(b)

statement reveals that she listed only one of those issues in the statement

before the trial court.3 Thus, only Appellant’s first issue has been preserved

for our review.      See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998)) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be

deemed waived.”).

       In support of her remaining issue, Appellant argues that the evidence

was insufficient to prove that she engaged in disorderly conduct. Appellant’s

Brief at 11. Specifically, Appellant contends that the Commonwealth failed

to prove that Appellant used obscene language or made an obscene gesture.

Id.   While the record supports the conclusion that Appellant used the “F-

word” to express anger, Appellant asserts her statements had nothing to do

with sex, and thus failed to support the conclusion that the “words appeal to


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3
  Appellant identified the following single issue in her Pa.R.A.P. 1925(b)
statement:

       The Commonwealth failed to present sufficient evidence to
       sustain Appellant’s conviction for Disorderly Conduct, 18
       Pa.C.S.A. 5503(a)(3), where the Commonwealth failed to prove
       that the Appellant used obscene language or made an obscene
       gesture.

Pa.R.A.P. 1925(b) statement, 2/2/15, at 1.



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the prurient interest or a depiction, in a patently offensive way, of relevant

sexual conduct.” Id. at 12-13.

      Our standard of review when considering a challenge to the sufficiency

of the evidence is well settled:

             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
      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
      proof or 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.

Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003).

      Disorderly conduct under 18 Pa.C.S. § 5503(a)(3) is defined as

follows:

      (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[.]


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18 Pa.C.S. § 5503(a)(3).         This Court has explained the following in

addressing this provision:

      The first inquiry is what is the definition of “obscene” for
      purposes of 18 Pa.C.S. § 5503(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, 93 S.Ct. 2607, 37
      L.Ed.2d 419 (1973):

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

      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.

Id.

      In addressing this issue, the trial court provided the following analysis:

            Here, [Appellant] used “obscene language.” Ms. Bryington
      was outside with her children and her children’s friends when
      [Appellant] approached her and started yelling “watch your f---
      ing kids” and calling her a “f---ing bitch.” [Appellant] further
      yelled “you don’t know who the f--- you are messing with.” All
      of this took place in front of the children. The definition of
      obscene, for purposes of Section 5503(a) has been defined by
      Miller [v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973)].

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      Circumstances surrounding words can be crucial.           In this
      instance, [Appellant’s] use of language was highly offensive to
      Ms. Bryington and her neighbors. One of the neighbors told Ms.
      Bryington that she needed to call the state police. This neighbor
      found that [Appellant’s] conduct and choice use of words were
      highly offensive such that the state police needed to be called.
      Furthermore, children should not be subjected to this type of
      language. Ms. Bryington had children ranging from four (4)
      years old and up. At such a young age, children should not be
      subjected to such use of language. In an ever evolving society,
      some may say that this language is the everyday “norm.” Some
      may say that children should be “used to this type of language”.
      However, in this instance, a caring parent with her children and
      her children’s friends was concerned about what was being said
      in front of children. Ms. Bryington was visibly upset about the
      language and immediately took the children to a neighbor’s
      house, while she called the state police. One neighbor was so
      concerned that he or she told Ms. Bryington that the state police
      needed to be called. This type of language, when looking at the
      circumstances surrounding the situation, was obscene in nature.

            Because [Appellant] got out of her car and approached Ms.
      Bryington yelling obscenities at her, all the while this was
      happening in front of children and concerned neighbors,
      [Appellant] is found in violation of Section 5503(a)(3) Disorderly
      Conduct.

Trial Court Opinion, 2/10/15, at 5-6 (emphasis in original).

      We have reviewed the record and conclude there is no evidence that

Appellant’s language and use of the “f-word” was intended to appeal to

anyone’s prurient interest, nor did it describe in a patently offensive way

sexual conduct. Thus, although the language may have been offensive, it

does not meet the criteria of obscene language or gestures as defined by the

statute. See McCoy, 69 A.3d at 666 (holding that a defendant’s chant of

“fuck the police” during a funeral procession of an officer killed in the line of

duty was not obscene as defined under 18 Pa.C.S. § 5503(a)(3) because it

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was not “intended to appeal to anyone’s prurient interest nor did it describe,

in a patently offensive way sexual conduct.”); see also Commonwealth v.

Kelly, 758 A.2d 1284, 1288 (Pa. Super. 2000) (holding that while

appellant’s use of the “F-word” and the middle finger “were disrespectful,

insulting and offensive, they were . . . not ‘obscene’ within the meaning of

Section 5503(a)(3).”); Commonwealth v. Bryner, 652 A.2d 909, 912 (Pa.

Super. 1995) (finding that shouting “go to hell, Betsy” in a public place,

even if provocative or annoying, was not “obscene” pursuant to section

5503(a)(3) of the Pennsylvania disorderly conduct statute because it did not

appeal to anyone’s prurient interests).          Because there was no evidence of

obscene language or gestures, we are constrained to agree with Appellant

that her conviction of disorderly conduct must be set aside.4




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4
  We note the trial court’s finding that this language was “obscene” based on
the surrounding circumstances, specifically that these statements were
made in front of children and that the statements were “highly offensive” to
Ms. Bryington and her neighbors. Although such factors do not make the
language “obscene” under 18 Pa.C.S. § 5503(a)(3) for reasons outlined
above, such circumstances and evidence would have been relevant to an
offense under section 5503(a)(1) (“engages in fighting or threatening, or in
violent or tumultuous behavior”) or section 5503(a)(4) (“creates a
hazardous or physically offensive condition by any act which serves no
legitimate purpose of the actor”) of the disorderly conduct statute. As
stated, however, Appellant was not charged with either of these provisions.



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     Judgment of sentence vacated. Jurisdiction relinquished.

     Judge Jenkins joins the Memorandum.

     Judge Platt files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015




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