*1 indication record there is no on the that the Finally, trial considered total scope privilege court before he failure to In appellant’s testify. sanctioned Hoffman v. U. S., Court stated: supra, Supreme
“The privilege afforded extends to answers that only would in support themselves a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.” been have concerned his Appellant may justifiably that would link in a testimony provide essential chain con- necting him with a different criminal wholly episode than one for he had been previously which convicted. Even to state that such a fear is a basis for claiming the privilege interests that endangers very privilege protects. record does not address the whether question under the facts and circumstances known to the judge trial there was for any reasonable to fear cause incrimination this nature.
A careful of all consideration the circumstances appearing on the record reveal does not that it is clear” “perfectly feared the appellant mistakenly testimony demanded could I tend incriminate him. would judgment reverse discharge appellant. sentence and MANDERINO, J., joins dissenting in this opinion.
Argued April 1978.
Decided Oct. *4 Defender, Pink, Public Richard R. First King, Martin J. Defender, Doman, Bruce K. Asst. Public De- Asst. Public fender, for appellant. Doylestown, Schenck, Biehn, Dist. Peter F. Atty., Doyles-
Kenneth G. town, for appellee. EAGEN, J., O’BRIEN, ROBERTS, C. and POM-
Before EROY, LARSEN, JJ. NIX
OPINION OF THE COURT O’BRIEN, Justice. DeFraneesco, was arrested on June John
Appellant, Police, Bucks Quakerstown Borough by County. arrest stemmed from his failure to appellant’s The basis of 6, 1972, an official order. Act of December disperse upon P.L.No. eff. June 18 Pa.C.S.A. 5502.1 § § judge was tried with a Appellant sitting jury guilty violating was found the Crimes Code. § provides: 1. 18 Pa.C.S.A. participating more are “Where three or in a course of disorderly may reasonably expected conduct which causes or inconvenience, annoyance or serious cause substantial harm or alarm, peace public engaged executing officer or other servant enforcing participants the law order the or and others vicinity disperse. person knowing- immediate A who refuses or ly obey fails to such an order commits a misdemeanor degree.” second “disorderly 5503 defines conduct” as:
18 Pa.C.S.A. § “(a) guilty person defined. —A Offense inconvenience, if, annoyance public with intent to cause alarm thereof, recklessly creating a risk he: *5 21, Post-verdict motions were denied and on August 1975, was sentenced to a term of imprisonment of six 17, 1975, months. twenty-three September months On below, acting pursuant appellant’s petition the court for sentence, reduced reconsideration of the term of imprison- ment to three months to months. twenty-three the judgment
An from of sentence was taken to appeal Court, which affirmed. Commonwealth v. DeFran- Superior cesco, 705, 360 (1976). A.2d 235 Pa.Super. Appellant court, filed a for allowance of in this which petition appeal we granted. first the evidence is insufficient to sus-
Appellant argues Code, tain his conviction for 5502 of the Crimes violating § Upon “Failure to Official Order”. We do not Disperse agree. initial attack centers on his assertion that the
Appellant’s sufficient, failed to evidence produce Commonwealth as a law, statutory matter of to meet the element of “three or in a course of persons participating more conduct disorderly . .” 5502 of the Crimes Code. § Rose, 264, 344 In Commonwealth v. 463 Pa. A.2d 824 (1975),this court reiterated the test of the sufficien- judging an court: appellate of the evidence cy “(1) engages fighting threatening, or or in violent or tumultu- behavior; ous noise; “(2) makes unreasonable “(3) language, gesture; uses obscene or makes an obscene or “(4) physically by any creates a hazardous or offensive condition legitimate purpose which serves no of the actor. act “(b) Grading. offense under this section is a misdemeanor —An degree if of the third the intent of the actor is to cause substantial inconvenience, persists disorderly or if harm or serious he warning request conduct after reasonable or to desist. Otherwise summary is a offense. “(c) ‘public’ Definition. —As used in this section the word means likely affecting place public to affect in a to which the access; group among places has or a substantial included are facilities, schools, houses, highways, transport prisons, apartment amusement, places any neighborhood, any prem- of business or 1482, open public.” ises which are to the December P.L. No. eff. June “The test of whether, the evidence is sufficiency the evidence in the viewing light most favorable to the and drawing Commonwealth the proper inferences favor- Commonwealth, to the able the trier of fact could reason- have found that all the elements of the ably crime had *6 been established beyond reasonable doubt. Moreover, the province it is of the trier of fact to pass credibility of witnesses and upon weight to be accorded the evidence . . produced. . The factfinder ” all, free to or part, is believe none of the evidence. . . (Citations omitted.) Cook,
In Commonwealth v.
468 Pa.
“In an actor is in violation of the section § when three or more are persons engaged conduct,’ ‘disorderly cause, which or be may may reasonably expected cause, or inconvenience, ‘substantial harm serious annoyance alarm,’ a police officer other official public acting within the of his scope orders the authority participant and others in the area to and such disperse actor refuses order, obey such he or she is of a guilty misdemeanor of the second degree.
“The gravaman of the section is the failure to obey an order aby police officer or other public official to disperse when three or more persons are in a engaging ‘course of ” disorderly (Footnote omitted.) conduct.’ Cook, also See Commonwealth v. supra, concurring opinion Mr. Justice by Pomeroy, joined Mr. Justice Nix.
The essential elements of 5502 are: § 1. Three or more are persons in a “participating course conduct.” disorderly 2. The above “course of disorderly conduct” cause or reasonably expected cause “substantial harm or serious inconvenience, or alarm.” annoyance
3. A or other policeman public official within acting his scope orders the authority participants and others in the area to disperse. knowingly order or dispersal refuses such The person with the order. comply
fails source, trial, from whatever presented evidence If the elements, a criminal defendant the above substantiates Appellant the second degree. of a misdemeanor guilty the existence of suffi- challenge case does instant the last three elements evidence, believed, to satisfy if cient sole contention is that charged. Appellant’s offense of the introduced evidence sufficient has not the Commonwealth element, i. first enumerated the establishment sustain in a course of are participating or more e., three conduct. disorderly evidence, even if argues
Specifically, standard, not establish that does under the Rose viewed in a course of were “participating persons” “three or more centers argument emphasis conduct.” of 5502. The persons” requirement or more the “three on *7 are as follows. this issue surrounding facts m. a p. 7:00 or 7:30 1973, at approximately On June between the of sixteen ages persons, group twenty-five Park, in the middle of Triangle at gathered twenty-four and street from the station. police across the and Quakerstown of this group. as a member being was identified Appellant throwing beer drinking, the included group The activities of the bordering park, on the street cans, traffic blocking beer and streets alleys in the urinating and obscenities2 yelling the start of the above Between park. the surrounding numerous the received police 10:45 m. p. and gathering the The park. police near living from residents complaints occasions, the above behav- but the on several group warned m., 10:45 p. police At approximately continued. ior street, on the and urinating for Kenneth Kramer arrested Kramer’s to interfere with attempting Howard for George Howard to the Kramer and transporting After arrest. returned to the The station, park. group the police police conduct. The ordered police the above-described continued specific definition of what words is no more detailed 2. There being were. uttered disperse. Upon the crowd to failure to with the comply order, Frank and John Howard were arrested. Joseph being the above arrests were completed, appellant While police which Frank Joseph car and John approached were Police Officer Joseph Lapinski Howard seated. told leave, to but informed the officer that appellant appellant one speak he wanted to the car. occupants that all must take Lapinski replied talking place at station. The then Frank police police Joseph took and John police Howard to the at m. approximately station 11:00 p. Frank, During the Howard and processing appellant, accompanied Roger Leonard and of unidentified group individuals, congregated outside of the The police station. about the size of testimony group accompa- varies which Leonard, and appellant nied the size of placing the group between minimum of three to to a four maximum of seven appellant to ten individuals in addition to and Leonard. Leonard began banging police station door and and appellant yelled obscenities demanded admittance station. The reveals that testimony addition obsceni- ties, appellant police called the officers The “pigs.” exited station and arrested Leonard. The or- officers appellant dered the members the accompanying group disperse. The save group, appellant, dispersed, removing to either the park. Ap- themselves street or the however, his pellant, continued verbal abuse of the police officers as slowly he backed away. police officers continued to admonish appellant to cease the verbal ha- and also continued to him rangues disperse. order After orders, a few was warnings dispersal arrested *8 charged violating and with the Crimes Code. § during Officer that the Lapinski testified above confronta- tion, the six arrested individuals continued to be disorderly police the station itself. concerning
Initially, appellant’s arguments as to the statutory of three or more requirement persons being disor before police a officer issue a derly dispersal § evidence, a order, review the the light most favorable drawing inferences, the all proper to Commonwealth appellant’s to sustain conviction. reveals sufficient evidence reveals all of that the above recited testimony The a minute forty-five period. events within place forty took consider may have chosen to all events The factfinder arrest from 10:45 until 11:30 as appellant’s leading up person the three or more satisfy evidence sufficient This is in record of 5502. evidence the and it requirement § retry not function an court to substi appellate is the jury. for that The record also judgment petit tute its while was obscenities and appellant yelling reveals that the station, was on the door of the banging police Leonard arrested individuals continued course of previously six Again, as the record reveals disorderly. conduct described evidence, jury, for a that by finding sufficient if believed in a were course disorder persons engaging three or more We at the time of order. believe the dispersal ly standard, is under the Rose suffi evidence, when reviewed of three or more requirement cient to meet under 5502 of the Crimes Code. § argument second that the evidence is
Appellant’s under 5502because at time of dispersal insufficient § and, therefore, individual he present order he was the only only could but “leave.” “disperse” not on the frivolous. argument Appellant borders Appellant’s fact because the six or bases his on the that seven argument him and to the individuals who Leonard accompanied police order, he police’s initial dispersed upon being station order, such defy subsequently could only person agree. We do not If the initial be ordered to disperse. valid, discussion, appellant’s was see dispersal supra, order or excused his justified cannot be noncompliance compan- were warranted in police initially ions’ compliance. did not dispersal. Appellant disperse, the crowd’s ordering did leave the area. The but supporting group his area, leave he to order continued His refusal was violative of 5502 and continued to refuse. his is sufficient to sustain conviction. the record *9 next Appellant that the court below argues erred in to the do charge jury. agree. its We not The complained-of as charge are follows: portions “Now, if accept police version, officer’s you have you If two questions. you accept police officer’s version that DeFrancesco and Leonard were leading a group door, seven ten on the youths, pounding creating a rumpus, using language, bad that sort of thing, and Leon- ard and was arrested the rest were all told to disperse and all the rest of them did disperse except defendant Then, here. I think should find him you (N.T. guilty 116). ****** “If should you accept the Commonwealth’s version of the incident that DeFrancesco and Leonard came to station leading group seven to ten youths they continued to rumpus there, create a on pounding door, using bad language you recall the testimony —and —Leon- arrested, ard was the rest of them did disperse but De- Francesco did not disperse, you find that he did not ordered, leave as then you should find him guilty (N.T. 122).”
In
Lesher,
141,
Commonwealth v.
Pa.
“It is
however, that in charging the jury
the trial court is free
use
own
its
form of expression;
the only issue is whether the area is adequately, accurate-
ly and
clearly presented
the jury. Commonwealth v.
McComb,
462 Pa.
Reviewing above charge its we entirety, find no error. Appellant makes two objections to the charge of the court below: if charging the court erred in That *10 did not to the only disperse pursuant
was the
who
person
order, a
is not
within the
single person
then
initial
order.
dispersal
ambit of
5502
§
defining
the elements of
That
the court erred
in this case.
they
5502 as
applied
§
that
the above-described con-
supra
determined
Having
the
of conduct detailed in
was within
scope
duct of
of
5502,
charge
we
no error in the
the court below.
find
§
error
second
of
the
allegation
concerning
Appellant’s
is
without merit. The entire
charge
charge
also
trial court’s
that the court
defined
adequately
instant case reveals
the
of the
Code—failure to
the elements of
5502
Crimes
§
Crimes
cond
5503 of the
disperse,
§
Code—
verbatim from both sections of the
quoted
court
uct.3
The jury
Code and then summarized
sections.
Crimes
that
had the
also instructed
the Commonwealth
burden
was
charged
of the crime
and that the
of
of all elements
proof
a reasonable doubt.
burden was beyond
next
to the trial court’s above
alludes
Appellant
that
its instruction to
if
concerning
jury
they
comments
verdict
facts,
guilty
appropriate.
then a
was
found certain
a reversal of
require
that the comments
agree
We do
that
Appellant argues
of sentence.
these
judgment
this
verdict of guilty.
were a directed
comments
whole,
as
trial
Again, reviewing
charge
instructed
that
clearly
adequately
jury
they
court
sole
facts and of
and that
judge
credibility,
were the
events,
their
coupled
of the
with
applica
their recollection
law,
controlling.
was
Commonwealth v.
tion of the
See
303,
Appellant His attack first constitutional unconstitutional. and, therefore, is violative of vagueness 5502 is void for § agree. We do not process. due Cook, supra, opinion v. 3. See Commonwealth both the Court J.) opinion (Pomeroy, J.). (O’Brien, concurring and the
607 Supreme Court, The United States in Papachris Jacksonville, 156, 162, v. 92 839, tou 405 U.S. S.Ct. City 110 843, (1972), 31 L.Ed.2d articulated the standard to be determining used in whether a statute is void vagueness: for
. it give . ‘fails to a person ordinary [when] fair notice that his intelligence contemplated conduct is statute, Harriss, forbidden United States v. 347 74 808, 989, L.Ed. U.S. S.Ct. 98 and because it and erratic arrests encourages arbitrary and convictions. Alabama, 736, Thornhill v. 310 U.S. S.Ct. L.Ed. 1093; Herndon 301 U.S. Lowry, S.Ct. L.Ed. 1066.”
We do not believe that the Crimes Code violates either of the requirements: above *11 give
1. Failure to notice of adequate what conduct is prohibited.
The statute in instant case authorizes a person’s arrest when that person refuses to an order knowingly obey given or by police officer other official in the public execution of police his duties. officers other official public can only give a order when three or dispersal more are conduct, in a course of engaged as defined by Code, addition, 5503 of the Crimes and in such conduct § causes reasonably anticipated to cause “substan- harm, inconvenience, tial annoyance serious or alarm.” We believe that a of person “ordinary intelligence” capable the clear this statute understanding wording criminal and can conduct to comport his statute without sacrificing any activities. protected constitutionally 1953, In Colten v. 407 U.S. Kentucky, S.Ct. (1972), Court, L.Ed.2d 584 the United States Supreme reviewing here, a similar statute as the one at issue held the statute constitutional against vagueness attack and ad- monished: violating Ky.Rev.Stat. 437.016(l)(f) 4. Colten was convicted of § (Supp. 1968), states: which doctrine is a vagueness rough . The root designed of fairness. It is not a convert principle idea dilemma the difficulties in practical into a constitutional general enough criminal statutes both take drawing into account a of human conduct variety sufficiently certain warning fair kinds of specific provide ” Colten, . . . supra, conduct are prohibited. at 1957. S.Ct. to the challenge constitutionality initial Appellant’s fail. 5502 must § and erratic arrests and convic- arbitrary
2. Encourages tions. vagueness of this test of is also premised
The basis second related to the initial test of vagueness, i. upon integrally e., fair of what conduct constitutes a violation of warning the statute. The second focuses not on the actor’s prong wording, of the statutes’ but rather on the en- perception and the court’s police disposition forcement method of the indictment before it. language we cannot is so broad
Reviewing say § unfettered discretion in their permit as to arrest unchecked authority and the courts determin- procedures of accused violators. The guilt or innocence second ing attack constitutional must also fail. prong appellant’s argument final is that 5502 is over- Appellant’s *12 is centered on his assertion Appellant’s argument broad. to permits police disperse persons that when 5502 other conduct,” in a “course of engaging disorderly than those an on the First impermissible infringement statute presents of the “other” rights nondisorderly persons. Amendment creating a risk cause Colten, “(1) “(f) comply Congregates with other A public supra, person with a lawful order of the inconvenience, at thereof, [*] is 108, guilty 92 S.Ct. [*] he: [*] annoyance at sjc in a conduct [*] public place alarm, disperse jfc if, with intent and refuses recklessly . . .” to
609
is
It
clear from this record that
is not claiming
his
was within the
sphere
that
conduct
First Amendment
but rather that
the undefined “other”
protections,
persons’
and, therefore,
be within that
may
sphere
this court
consider
facial overbreadth
to the
challenge
should
statute.
Court, in
The United States
v.
Supreme
Broadrick Oklaho-
ma,
601, 610-15,
2908,
413
93
2915,
U.S.
S.Ct.
“Embedded
traditional
rules governing constitu-
adjudication
tional
is the
that a
principle
person to whom a
be
constitutionally
statute
will not be
may
applied
heard to
challenge that statute on the
ground
may
it
conceivably
others,
applied unconstitutionally
in other situations
See,
Aldermen,
not before the Court.
e. g., Austin v. The
7
694, 698-699,
(1869);
Wall.
case, that the court must so constitution; law, disregarding to the formably law; constitution, disregarding to the conformably of rules conflicting which these court must determine of essence very judicial the case. This of governs 137, 178, 2 Madison, v. 1 L.Ed. 60 Marbury Cranch duty.’ (1803). excep- has some limited recognized the Court past,
“In the
of the most
only
but
because
to these principles,
tions
Raines,
v.
United States
countervailing policies.’
‘weighty
22-23,
519,
13
471
U.S.
L.Ed.2d
Griffin,
Lovell v.
303
312,
(1951);
L.Ed. 280
U.S.
95
S.Ct.
666,
(1938).
“.
. Facial overbreadth
.
placed
been or could be
on the
has
limiting construction
Pfister,
U.S.,
v.
380
at
Dombrowski
challenged statute. See
1116;
Hampshire,
569,
v.
491,
Cox New
U.S.
85 S.Ct.
762,
Thirty-sev
United
(1941);
L.Ed. 1049
States
S.Ct.
363, 91
618
the convictions were reversed.
ing
See also Teamsters Un-
Inc.,
284,
Vogt,
1166,
ion v.
354 U.S.
77
1
S.Ct.
L.Ed.2d 1347
(1957). Additionally, overbreadth
has
scrutiny
generally
been somewhat less
rigid
the context of statutes regulat-
in the
ing conduct
shadow of the
Amendment,
First
but
neutral,
in a
doing so
noncensorial manner. See United
Harriss,
612,
808,
v.
347
74
States
U.S.
S.Ct.
“It remains a ‘matter of no little
difficulty’
determine
when
law
be held void on its face
may properly
and when
‘such
action’ is
summary
inappropriate. Coates v.
City
Cincinnati,
U.S.
S.Ct.
We because of facial over- defective constitutionally is Code breadth. vicariously challenge “standing” has
While facial overbreadth we believe his (Broadrick, supra), § stated: in Broadrick The Court Supreme must fail. attack particularly another way, the matter put . . To “. involved, we is merely speech not where conduct be only of a statute must the overbreadth that believe relation to the well, judged as real, but substantial sweep.” plainly legitimate statute’s police permits the Crimes Code 5502 of Section in the and “others” participants disorderly to order officer to dis disorderly participants of such vicinity immediate lawfully given only order be dispersal may The above perse. and their conduct disorderly are three or more when to cause substantial expected be reasonably that may is such inconvenience, or alarm. annoyance or serious harm is that the refusal to the statute challenge appellant’s who are by persons order under dispersal obey § conduct, but who disorderly in the not participating rights, impermissible. Amendment their First exercising overbreadth, if of 5502 is any, that We do not believe and balanced to compared when real and substantial both sweep”. legitimate “plainly the statute’s tool order to legislative given is a Section minor conduct situations prevent possible quell severely and serious- major disruptions, into escalating from welfare. the public’s ly impairing 554-55, Louisiana, 85 S.Ct. 379 U.S. In Cox Court stated: (1965), Supreme 464, 13 L.Ed.2d while free speech assembly, . The rights “. . mean still do not society, in our democratic fundamental to express may or beliefs opinions with everyone *17 at time. The place any and any public group address the existence of liberty implies guarantee constitutional order, without maintaining public society organized an lost in the excesses of an- itself would be liberty which clear of travel on the streets The control archy. to insure this nec- responsibility governmental example relation, designed in that order. A restriction essary all, interest of and convenience promote public discriminatory application, abuses of susceptible not exercise of some attempted disregarded by cannot be circumstances, would be entitled which, in other right civil justified ignoring would not be One protection. was to be a means thought because this light familiar red one, to traffic contrary regu- Nor could protest. of social in the middle of lations, meeting a street upon insist rush hour as a form freedom of Times at the Square authorities have the Governmental assembly. speech streets and keep open their duty responsibility A of demonstrators could group for movement. available street, cordon off a or entrance right insist upon and allow no one to building, pass public private to a to their exhortations. . .” did not to listen agree who added.) (Emphasis interest of 5502 light legitimate
When viewed in § Cox, in Broadrick discussions Supreme and the Court’s facial overbreadth attack must we believe supra, appellant’s be dismissed. affirmed. Court Superior
Order took no in the consideration or MANDERINO, J., part of this case. decision
ROBERTS, J., dissenting opinion. files a ROBERTS, Justice, dissenting. whether “three or determining holds that in majority in a course of participating
more are 5502,1police may . . .” under 18 Pa.C.S.A. P.L. 1.§ Act December *18 in the who are not themselves disor- vicinity persons include an arrest may permit It also holds that section derly. time of the arrest the where at the disperse refusal to for there is thus no risk of an unruly is alone and individual The section 5502 majority interprets I dissent. crowd. relies on facts not of permit, than its terms broadly more vague an upholds unconstitutionally and erroneously record the evidence is insufficient to in view my Because statute. properly interpreted, when a violation of section show I would unconstitutionally vague, the statute and because reverse.
I in the most favorable to record, light when viewed The Rose, 463 Pa. Commonwealth, Commonwealth the was one of a Appellant group reveals that (1975), A.2d on a summer eve- congregated who twenty-five of in a ning small public park in Quakerstown Borough, Bucks were observed in group members of this Certain County. beer, cans, beer block- throwing evening drinking early the in urinating public. “obscenities” and traffic, shouting ing record. is not language quoted exact Appellant’s engaged that himself Further, appellant there is no evidence from complaints In to response these activities. any residents, several group disperse ordered nearby police of the At 10:45 m. one member times, p. but to no avail. in the street and urinating for allegedly was arrested group his to interfere with arrest. attempting allegedly for another members two more Later, disperse, after another order Howard, were arrest- and John Frank group, Joseph with the refusing comply charge on a ed, evidently the police Howard were in When Frank and order. dispersal the car appellant approached taken car, away, to be ready It is undisputed to them. he wanted to speak that stating would have to see Frank and he told police station. police Howard at station, to the police others went and several
Appellant then on pounded Leonard entry. refused they where were doors; appellant alleged shouted “obscenities” and called officers The police “pigs.” arrested Leonard and appellant, along onlookers, ordered with the disperse. dispersed the onlookers Although appellant re- alone, he again mained was ordered disperse. appel- away lant backed was arrested about 110 slowly feet from station.
II designed Section 5502 was to provide police with an effec- tive with dealing potentially means volatile gatherings If there is people. more, no three or gathering *19 to which the statute danger is addressed is simply not statute, present. Under the police authority disperse upon groups contingent disorderly conduct in the same area of three or more It is individuals. clear that where less than three are disorderly, individuals the Legislature con- sidered any apparent danger insufficient to a justify grant a police to issue order. authority dispersal
The majority concludes that the “three or more persons” requirement section could be appellant’s fulfilled by presence among park at the group congregated after (There 10:45 m. p. is no evidence that appellant refused an order to disperse while But section park.) not one’s presence does make earlier simply in in group which three more have persons been disorderly a for at a justification arrest later time at a place different and when less than three persons are The disorderly. stat- ute which an applies only groups pose threat. existing By consideration of the permitting circumstances at the park to support appellant’s refusing disperse conviction for later elsewhere, the majority transcends the statute.
Alternatively, the find “three or majority more per- sons” element of section 5502 satisfied the presence by police outside the station of onlookers who dispersed upon conclusion, In reaching command. this it disregards the by and, standards established in Legislature effect, permits general order to disperse whenever there is one claimed to be person group in the of a not disorderly vicinity disorderly.
In a last effort its determination that there justify least in a participants were at three course conduct, the seeks to include those who majority station, them as police characterizing in in the custody were the Commonwealth its brief nor the disorderly. Neither mention circum- court in its makes of these opinion any trial Moreover, it is unreasonable to assume that those stances. custody are in a station can be included police who here at dispersal statute issue. purposes for arrest plainly the statute does authorize an Finally, when, at order to the time of the disperse for an disobeying arrest, there in the The clear group people is no vicinity. is to dispersal of section 5502 permit potentially purpose are then in existence. If there is no unruly groups which the statute raised. addressed are not dangers group, I believe the has erred in respects, majority In the above Thus, based on I view to what statutory interpretation. its of section I find the interpretation the proper support insufficient to conviction. appellant’s evidence
Ill in its only interpre- has not erred majority statutory *20 tation, rejected erroneously appellant’s it has in addition 18 5502 is in unconstitutionally vague claim that Pa.C.S.A. § v. of the 1st and 14th amendments. In Smith violation 566, 1242, 94 39 (1975) 415 S.Ct. L.Ed.2d 605 Goguen, U.S. to bar treatment of (unconstitutional “contemptuous” flag), stated: Supreme the United States Court of doctrine of principles vagueness] “The settled [the no restatement here. The in- extensive doctrine require Moreover, fair it warning. notions of notice corporates to set for legislatures reasonably clear requires guidelines officials and triers of fact in order to law enforcement discriminatory enforcement.’ ‘arbitrary prevent unaided a narrowing a statute’s literal scope, by Where of reaching expres- court interpretation, capable state
619 Amendment, sion sheltered the First by the doctrine de- mands a in greater degree specificity than con- other texts.”
Id., 572-73, 415 at 94 1247 (footnotes U.S. S.Ct. at omitted).
In its constitutional 18 analysis of the Pa.C.S.A. 5502 on majority 104, relies Colten 407 Kentucky, U.S. 92 S.Ct. Colten, (1972). L.Ed.2d 584 In of a one number of cars from transporting college students a political demon- an expired stration bore license plate. The stopped car and made an arrest. The other cars pulled over and a crowd on the gathered highway arrest, at scene a risk of creating thus accident. Colten was ordered leave, but in persisted speak his efforts to with the arrestee. After five warnings police arrested him and was he convicted subsequently conduct. case,
Colten does not however, control outcome in this because the Court held that Colten’s conduct was in no way first protected amendment.
“We have little doubt Colten’s in refusing move on directed being not, after to do so was without more, the First protected by Amendment. He ... had no constitutional right observe the of a issuance traffic ticket engage issuing officer conversa- tion at that time.”
Id., 407 at U.S. S.Ct. 1956-7. only Thus Colten the Court held that appellant should reasonably particular have known that his conduct was The prohibited. Court had no occasion to apply the more exacting standard of review appropriate where a statute protected reaches conduct under the first amendment. E.g., v. Goguen, supra. Smith right speak to be in right park for social general are in within
purposes first amendment protection. Cincinnati, City 611, 613, See Coates v. 402 U.S. 91 S.Ct. 1686, 29 214 (1971).2 L.Ed.2d The majority, therefore, can- not deny that section 5502 regulates arguably protected City Cincinnati, In Coates v. U.S. S.Ct. *21 (1971), Supreme L.Ed.2d 214 the United States Court struck down a 620 5502, appel- of section majority’s reading the
conduct. On of his and his speech on the basis upheld conviction is lant’s Goguen, Smith Thus, under supra, in the park. activities whether, amendment, first in view the issue is is clear lines” between what “reasonably draws statute Id., 574, 94 S.Ct. at and what is not. U.S. criminal “causes or may reasonably which conduct By prohibiting inconvenience, an- . . . serious to cause be expected to the insuf- alarm,” public section 5502 provides or noyance affords to accordingly its scope instruction of ficient in to ordering groups persons discretion an undue conduct” contained “disorderly The definition disperse. of section 5502’s vagueness to cure section 5503 fails in bars conduct which disorderly Section language. to cause . expected be may reasonably “causes or or alarm.” inconvenience, Section annoyance serious as follows: provides is guilty
“(a) person Offense defined. —A inconvenience, cause if, public with intent to thereof, alarm, a risk recklessly creating or annoyance he: making “three or more it a criminal offense for statute state any thereby of the sidewalks . . . and ... on to assemble conduct annoying persons passing by.” themselves in a manner overbreadth, discussing observed: Court In the statute’s of the due lies not alone in its violation vice of the ordinance “[T]he vagueness. ordinance also violates the process standard assembly right and association. Our deci- of free constitutional animosity public cannot be that mere intolerance sions establish abridgment . of these constitutional freedoms. basis for permit do not a State Fourteenth Amendments The First and assembly simply right of because the exercise of the make criminal people. ‘annoying’ If this were not the to some exercise its public places rule, people gather right for social or continually subject summary political purposes sus- would be good-faith prohibition through of a pension enforcement addition, prohibition, annoying against And such a conduct. discriminatory enforcement an obvious invitation contains against together ‘annoying’ because association those whose ideas, appearance lifestyle, physical is resented or their their by their majority citizens.” of their fellow 615-6, (footnotes omitted). at 1689
Id., U.S. at 91 S.Ct. *22 in or or violent or fighting threatening, in (1) engages behavior; tumultuous noise;
(2) makes unreasonable gesture; or makes an obscene language, (3) uses obscene or offensive condition physically a hazardous
(4) creates legitimate purpose which serves no act any actor.” course, must, of be ultimately of the subsections
Each
“inconvenience, an-
vague
in
with the
viewed
combination
alone,
But even viewed
these
language.
alarm”
noyance,
“clear” lines.
I do not
acceptably
not draw
do
subsections
clearly prohibits fighting.
that
first subsection
dispute
the
determined what other particu-
reasonably
But it cannot be
“threatening” or “tumultuous” sub-
the terms
lar behavior
Thus,
(1) gives
subsection
undue discretion
sanction.
ject to
notice to the
inadequate
public. Similarly,
to the police
to decide when a noise is
permit police
other subsections
“unreasonable,”
speech
“physically
when conduct or
is
offen-
of the actor” is. The
“legitimate purpose
or what a
sive”
imply
the standard these terms
guess
can
public
only
constitutionally protected
inclined to
may
forego
hence
or speech.
ges-
and “obscene
language”
reference to “obscene
In
(3) presents
special problem.
in
a
subsection
ture^]”
California,
15, 19-20,
403
91 S.Ct.
v.
U.S.
Cohen
Court reversed a conviction for
(1971),
29
284
L.Ed.2d
a
expletive
corridor of
four-letter
in a courthouse
display
The Court observed:
jacket.
on
back of a
within those
few
relatively
case
be said
fall
“this
cannot
where
decisions have estab-
prior
of instances
categories
more comprehen-
deal
government
the power
lished
expression
forms
individual
simply
with certain
sively
This
employed.
that such
form was
showing
upon
case. Whatever else
not,
for
an
example,
obscenity
broader
give
power
rise
the States’
be necessary
be,
such
must
in
expression
obscene
prohibit
expression,
States,
v.
erotic. Roth
United
significant
some
way,
(1957).
It
476, 77
L.Ed.2d
cannot
U.S.
S.Ct.
this
allusion to
vulgar
be maintained
plausibly
conjure
would
such
System
up
psychic
Service
Selective
to be confronted with
likely
Cohen’s
anyone
stimulation
jacket.”
defaced
crudely
See State fashion, in this the subsection is not (1977). Construed here, has not adopted But the the Cohen vague. majority, Therefore, can public only guess what construction. includes. In the case the trial present judge, term “obscene” majority opinion), permitted in his charge (quoted *23 conduct on finding to base its the use of jury then, accused was and convict- language.” Appellant, “bad more than “bad nothing language” refusing ed of of this “bad majority’s approval language” The disperse. unwarranted, where the record particularly charge wholly reveal what is claimed to be obscene. language does not of sentence should be reversed because of judgment erroneous 1) majority’s interpretation statutory a record to 2) support majori- the absence of language, 3) of its asserted facts and assumption majority’s ty’s the statute is not holding vague. erroneous
Frank E. Pennsylvania COMMONWEALTH STUDEBAKER, Appellant. Eldon G.
Supreme Pennsylvania. Court of
Argued April 1978: Decided Oct.