Background

• In November 2014, during an arranged child custody exchange in an apartment complex parking lot, Jason Waugaman drove his vehicle toward his ex-wife, Kacie Boeshore, who jumped back to avoid being struck; their children witnessed the incident and were upset.
• After driving off, Waugaman displayed his middle finger to Boeshore. Police responded; Boeshore testified she was scared for herself and the children.
• Waugaman was charged with recklessly endangering another person (acquitted) and disorderly conduct under 18 Pa.C.S. § 5503(a)(3) for making an obscene gesture.
• At bench trial the court convicted Waugaman of disorderly conduct and sentenced him to 90 days’ probation and costs; he filed a post-sentence motion challenging sufficiency of the evidence.
• The trial court considered the gesture obscene partly because the children may have viewed it as sexually explicit; the Commonwealth conceded the gesture was not obscene under the statute.
• The Superior Court reversed the disorderly conduct conviction, holding the middle-finger gesture was not obscene under the governing obscenity test.

Issues

Key Cases Cited

• Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super. 2000) (holding use of F-word and middle finger to show disrespect was not sexual or obscene under § 5503)
• Commonwealth v. Bryner, 652 A.2d 909 (Pa. Super. 1995) (adopting Miller obscenity test for § 5503 analysis)
• Miller v. California, 413 U.S. 15 (1973) (establishing three-part test for obscenity)
• Cohen v. California, 403 U.S. 15 (1971) (protecting non-obscene offensive speech; exposure to unwitting viewers does not convert speech into obscenity)
• Brockway v. Shepherd, 942 F. Supp. 1012 (M.D. Pa. 1996) (middle-finger display not obscene)
• Commonwealth v. Goins, 867 A.2d 526 (Pa. Super. 2004) (standard of review for sufficiency of the evidence)