Commonwealth v. CookCommonwealth v. Cook
- Reporters:
- , ,
- Before:
- Jones
Lead Opinion
OPINION
O’BRIEN, Justice.These appeals arise from an order of the Court of Common Pleas of Allegheny County, Criminal Division, which declared § 5502 of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 C.P.S.A. § 5502, effective June 6, 1973, unconstitutional. The Commonwealth appealed the decision to the Superior Court and the matter was subsequently transferred to this court for decision.1
The facts surrounding this appeal are as follows. On September 14, 1973, appellees, Queen Cook, Wilbert James Williams and Darryl Fulton, were arrested following a disturbance in Wilkinsburg Borough. As a result of the disturbance appellees were indicted on the following four counts: (1) Riot; (2) Resisting arrest or other law enforcement; (3) Failure of disorderly persons to disperse upon official order; and (4) Obstructing administration of law or other governmental function.
On January 23, 1974, the court below granted appellees’ motion to quash as to count three of the bill of indictment, the failure of disorderly persons to disperse upon official order. The court below then sustained a demurrer to all the remaining counts as to appellee Williams, and to the second and fourth counts as to appellees Fulton and Cook. At the end of the trial, the court below found Fulton and Cook not guilty of the remaining riot count of the indictment. The Commonwealth filed an appeal to Superior Court, contesting the quashing of *252the indictment and the declaring of § 5502 as unconstitutional. The Superior Court certified the case to this court for resolution of the constitutional issue.
The Commonwealth argues that the court below erred in declaring § 5502 of the Crimes Code unconstitutional on the grounds of vagueness. The record in the instant case reveals that the statute was declared unconstitutional pursuant to an oral motion to quash the indictment and, therefore, no facts appear on the record concerning the alleged violation of § 5502 of the Crimes Code.2 3 Section 5502 of the Crimes Code reads:
“Where three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor of the second degree.”
In § 5502, an actor is in violation of the section if, when three or more persons are engaged in “disorderly conduct,” 3 which may cause, or may reasonably be expected to cause, “substantial harm or serious inconvenience, annoyance or alarm,” a police officer or other public official acting within the scope of his authority orders the participant and others in the area to disperse and such actor refuses to obey such order, he or she is guilty of a misdemeanor of the second degree.
The gravamen of the section is the failure to obey an order by a police officer or other public official to dis*253perse when three or more persons are engaging in a “course of disorderly conduct.”
In Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976), in deciding the constitutionality of Pennsylvania’s “open lewdness statute,” 4 the court, in articulating the standard of review for constitutional attacks concerning vagueness, stated:
“. . . Absent the assertion of an infringement of First Amendment freedoms, the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged. As the Supreme Court of the United States has but recently put it,
Tt is well established that vagueness challenges to statute which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand, [citation omitted] ’ United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 714, 42 L.Ed. 2d 706, 713 (1975).
“See also Comment, Recent Supreme Court Developments of the Vagueness Doctrine, 7 Conn.L.Rev. 94, 100 (1974); Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (I960).”
This record presents no facts concerning appellees’ alleged violation of § 5502, and the colloquy preceding the trial court’s ruling fails to reveal the grounds for appellees’ claim of “vagueness.”
Therefore, no First Amendment claims having been articulated by either the court below or the appellees, we cannot decide the constitutionality of § 5502 in a factual vacuum and, therefore, we vacate the order of the court below and remand the case for further proceedings consistent with this opinion.
*254Order of the Court of Common Pleas of Allegheny County, Criminal Division, is vacated. Case remanded for proceedings consistent with this opinion.
POMEROY, J., joins in this Opinion and filed a Concurring Opinion in which NIX, J., joined. ROBERTS, J., filed a Dissenting Opinion in which JONES, C. J., joined. MANDERINO, J., filed a Dissenting Opinion.Notes
. These appeals were originally scheduled for argument at our March, 1975 session, but because of noncompliance with
. The above procedure is in clear contravention of
. See Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, et seq., 18 C.P.S.A. § 5503, for definition of “disorderly conduct.”
. Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, et seq., 18 C.P.S.A. § 5901.
Concurrence Opinion
(concurring):
I join in the Opinion of Mr. Justice O’Brien and in the decision to vacate the ruling of the trial judge and to remand the case for further proceedings. I add this separate opinion only to explicate more fully why I feel such a remand is required.
Appellees were indicted, inter alia, for failing to disperse upon official order in violation of Section 5502 of the Pennsylvania Crimes Code,
As the Opinion of Mr. Justice O’Brien correctly suggests, ante at p. 276, n. 3,
Furthermore, I do not see how the Court could properly determine the appropriate standard to govern its review of
Accordingly, I think the Court is quite correct in its order of remand.7
NIX, J.„ joins in this concurring opinion.. The count of the indictment which charged appellees with failure to disperse was cast in the general language of
“3rd COUNT. AND THE GRAND JURY AFORESAID by this Indictment DOES FURTHER PRESENT That the said QUEEN COOK as aforesaid and WILBERT JAMES WILLIAMS, on the day and year aforesaid and in the County aforesaid, together with two or more persons whose identity is to this Inquest unknown, were then and there engaged and participating in a course of disorderly conduct which caused or could reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, and while so participating in said course of conduct as aforesaid, the said QUEEN COOK as aforesaid and WILBERT JAMES WILLIAMS unlawfully did then and their refuse and knowingly fail to obey an official order to disperse as such participant therein given by the said Joseph Terry and Dominick Mangano, as such police officer and *255public servants of said Borough of Wilkinsburg, and being duly authorized and empowered to issue and give said order of dispersal as aforesaid, all of which is against the peace and dignity of the Commonwealth of Pennsylvania.”
Darryl Fulton’s indictment was cast in the same general language.
. Because all charges concerning
.
A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
*256(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
. My Brother Roberts’ suggestion that we may reach the merits at this juncture is not responsive to the fact that the four definitional subsections of
. If a colorable claim is asserted that enforcement of a statute would infringe upon the exercise of protected First Amendment activity by the public, then a facial attack upon the statute may be proper. While the overbreadth and vagueness theories upon which appellees rely have distinct constitutional bases, they serve a common function when advanced to challenge a statutory provision which colorably infringes upon the public’s exercise of First Amendment freedoms. The vice which both theories attack is an impermissible chilling effect on conduct which may be protected. Whether that effect is generated by statutory terms which, while definite, are too broad in sweep, or by statutory terms the sweep of which is unknown because the terms are too imprecise, the infringement on First Amendment freedoms is the same; members of the public are forced to risk criminal prosecution in order to engage in activity which may be protected by the First Amendment. The public’s interest in guarding against such infringements is sufficiently important that any defendant may challenge the constitutionality of the language of the statute as it might be applied to the public at large, notwithstanding that his own actual conduct may not be protected by the First Amendment. As a consequence, a statute which is challenged on First Amendment overbreadth or vagueness grounds may be scrutinized by a court on its face, not in light of its application in the particular case before the court.
See Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 884 (1970); Note, Due Process Requirement of Definiteness in Statutes, 62 Harv.L.Rev. 77 (1948); Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).
. As a unanimous United States Supreme Court has recently said:
“It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand, [citation omitted]”
United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706, 713 (1975).
See also Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976).
. I would also make it clear that the Commonwealth should be allowed to amend the relevant portion of the indictment so as to include that subsection of
“(b) The indictment shall contain the official or customary citation of the statute and section thereof or other provision of law which the defendant is alleged therein to have violated; but the omission of or error in such citation shall not affect the validity or sufficiency of the indictment.”
In light of our conclusion that
“It is well settled that a defect of substance in an indictment cannot be amended and the indictment must be quashed. Commonwealth v. Lawton, 170 Pa.Super. 9, 84 A.2d 384 (1951). However, if the defect is one of form it can be amended. Pennsylvania Rules of Criminal Procedure, Rule 220, 19 P.S.Appendix. Rule 220 permits an amendment to an indictment if the amendment does not charge an additional or different offense.” (footnotes omitted)
Commonwealth v. Brown, 229 Pa.Super. 67, 323 A.2d 845, 846 (1974). See also Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Commonwealth v. Bruce, 230 Pa.Super. 507, 326 A.2d 628 (1974). Cf. Commonwealth v. Lee, 454 Pa. 526, 312 A.2d 391 (1973); Commonwealth v. Lawton, 170 Pa.Super. 9, 84 A.2d 384 (1951).
Dissenting Opinion
(dissenting).
I cannot agree that the decision on the vagueness challenge must be postponed. The challenged statute clearly involves first amendment rights and, for that reason, a facial attack on the statute may be entertained. Thus, this Court should now decide whether this statute is vague and remanding the case is unnecessary.
In Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976), we relied on United States v. Powell, 423 U. S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1976), and United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), for the proposition that attacks on the specificity of statutes are generally to be considered against the specific conduct involved in the case. 467 Pa. at-, 354 A.2d at 245. We quoted the U.S. Supreme Court in Mazurie that “vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.” 419 U.S. at 550, 95 S.Ct. at 714. The majority misapplies this proposition by failing to realize that the question whether first amendment rights are involved must be determined with reference to the statutory language.
In Mazurie, the U.S. Supreme Court was dealing with a statute governing sale of alcoholic beverages in “Indian country.” It was clear that first amendment freedoms were not involved. In Powell, the statute proscribed the mailing of certain firearms. There, it was also clear that first amendment freedoms would not be chilled by enforcement of the statute. In both cases the decision whether first amendment freedoms were involved, i. e., whether a facial attack on the statute may be entertained, was made with reference to the conduct which the language of the statute may have reached. In the case before us the majority does not look to the language of the statute to determine if first amendment rights are “involved”. The majority attempts to look to the facts of *260this case for that determination. This method of analysis is, in my view, incorrect.
The fallacy of the majority’s position is apparent from an examination of its circuitous consequences. The majority says facial attacks — without reference to the facts of the case — can be considered only when first amendment rights are involved. Then it remands the case for proceedings to remedy the “factual vacuum” to determine if first amendment rights are involved. The majority’s result is tantamount to holding that the court needs facts to determine if a challenge to the statute without reference to the facts is allowed.
The vagueness doctrine encompasses two notions.1 The first is that one should be able to determine from reading the statute what conduct is proscribed. Precision in the language prevents courts from determining ad hoc what is a crime and what is not. Prosecutions based on imprecise statutes are too dependent on discretion and are rife with potential for abuse and inconsistent adjudications.2 The second prong of the vagueness doctrine deals with cases where the language of the statute is sufficiently precise yet it will frequently reach constitutionally protected conduct; its sweep will be overbroad.
It is clear, as to challenges based on overbreadth, that one whose conduct is not constitutionally protected in a given case may not assert that the statute could reach protected conduct in a hypothetical case. See, e. g., Colten v. Kentucky, 407 U.S. 104, 111, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). Similarly, in attacks based on imprecise statutory language, where first amendment rights are not involved, the facial attack will only be en*261tertained with reference to the facts of the case at hand. The question there becomes: does the alleged imprecision in the statute affect this defendant in this case.
However, when first amendment rights are involved in a case challenging the imprecision of the statutory language, the attack will be entertained without reference to the facts of the particular case. This is so because when a statute, by its terms, regulates first amendment freedoms there is a significant threat that the rights will be impinged either through direct proscription which the actor cannot anticipate by looking at the terms of the statute, or through a chilling effect because the actor will be less likely to exercise his rights for fear he will run afoul of a proscription whose dimensions are uncertain. When first amendment rights become intertwined with a statute whose language is vague there exists a constitutional issue which the court must resolve without deciding if the facts of the incident involved give the challenger standing. The mere fact that one is prosecuted under a statute which regulates conduct arguably within the ambit of the first amendment and whose terms are open to imprecise interpretation is sufficient to give the challenger standing to attack the statute as facially vague.
A constituent element of the offense with which appellees here were charged is that the person be involved in a course of disorderly conduct. Disorderly conduct is defined in the Crimes Code as:
Ҥ 5508. Disorderly conduct
(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:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
*262(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”
Because the statute deals with expressions of various types, first amendment rights are involved and a facial attack on the statute may be made. By refusing to decide whether the language of the statute is unconstitutionally vague the Court unnecessarily expends judicial and professional resources by an unneeded remand, and inappropriately applies the “standing” requirement for such a vagueness claim.
JONES, C. J., joins in this dissenting opinion.. See Note, The Void-For-Vagueness Doctrine, 109 U.Pa.L.Rev. 67, 76 et seq. (1960). The Author of that Note, Anthony G. Amsterdam, classifies the vagueness cases as “true” uncertainty cases, e. g., United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921), and “spurious” uncertainty cases, e. g., Winters v. New York, 333 U. S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948).
. See Note, The Void-For-Vagueness Doctrine, supra at 80-81.
Dissenting Opinion
(dissenting).
I dissent.
Under
The majority, however, declines from ruling on the constitutionality of
I therefore dissent. I would declare