J-S29040-24
2024 PA Super 266
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE JOHNSON :
:
Appellant : No. 171 WDA 2023
Appeal from the Judgment of Sentence Entered September 1, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001017-2022
BEFORE: LAZARUS, P.J., DUBOW, J., and KING, J.
OPINION BY KING, J.: FILED: November 13, 2024
Appellant, Andre Johnson, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his bench
trial convictions for disorderly conduct, driving without a license, and duties
at a stop sign.1 We affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
[On November 11, 2021,] Officer Wolfe of the Glassport
Borough Police was on patrol when she conducted a traffic
stop of a vehicle driven by [Appellant after he failed to stop
at a stop sign]. [Appellant] failed to yield to lights and
sirens, proceeded at a high rate of speed and brought his
vehicle to a stop on the street outside of a residence. During
the hour-long encounter, [Appellant] became belligerent,
screamed at the officer, approached her several times, and
called her a “fucking bitch” numerous times all in the
presence of the public. Office[r] Wolfe testified that
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1 18 Pa.C.S.A. § 5503(a)(3); 75 Pa.C.S.A. §§ 1501(a); and 3323(b),
respectively.
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[Appellant], “advised me that he would be seeing my
daughter. Then proceeded to tell me not to worry because
he’s a lover, not a fighter.”
A [w]itness to the scene[, Paul Beisler, who towed
Appellant’s vehicle,] credibly testified that [Appellant] was
screaming and said “he wanted to ‘F’ her daughter” and “he
wanted to get her daughter pregnant so he could
cost…Officer Wolfe money that Officer Wolfe was costing
him….” Both the Officer and the Witness testified that
[Appellant] was asked numerous times to stop his
belligerent behavior.
(Trial Court Opinion, filed 2/8/24, at unnumbered pp. 4-5) (internal citations
omitted).
Procedurally, on November 12, 2021, the police filed a criminal
complaint charging Appellant with the above-mentioned crimes. On
September 1, 2022, following a bench trial, the court convicted Appellant of
all counts. The court sentenced Appellant that day to six months’ probation
for disorderly conduct and imposed no further penalty for the remaining
offenses. On Monday, September 12, 2022, Appellant timely filed a post-
sentence motion, which the court denied on January 10, 2023. Appellant
timely filed a notice of appeal on February 7, 2023. On February 27, 2023,
the court ordered Appellant to file a concise statement of errors complained
of on appeal per Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises one issue for our review:
Whether the evidence was sufficient to convict [Appellant]
at Count One—Disorderly Conduct where the
Commonwealth failed to prove, beyond a reasonable doubt,
that his statements qualified as obscene language?
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(Appellant’s Brief at 4).
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that
the evidence establishing a defendant’s participation in a
crime is circumstantial does not preclude a conviction where
the evidence coupled with the reasonable inferences drawn
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment for that
of the fact finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the Commonwealth,
demonstrates the respective elements of a defendant’s
crimes beyond a reasonable doubt, the Appellant’s
convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)
(quoting Commonwealth v. Franklin,
69 A.3d 719, 722-23 (Pa.Super.
2013)).
Appellant argues that he did not use “obscene” language as required to
sustain his conviction for disorderly conduct. Appellant concedes that he made
offensive statements. Nevertheless, Appellant insists that his statements did
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not appeal to the prurient interest. Appellant acknowledges that he
referenced impregnating Officer Wolfe’s daughter, but he contends that he did
not describe a specific sex act in a prurient manner. Appellant further claims
that his statements did not qualify as “depicting or describing, in a patently
offensive way, sexual conduct specifically defined by the applicable state law.”
(Appellant’s Brief at 16). Appellant maintains that his statements “alluding to
sex with the officer’s daughter” merely meant to portray his wish to financially
retaliate against Officer Wolfe. (See id.) Appellant avers that he did not
intend to evoke sexual arousal or to appeal to a “shameful or morbid” sexual
impulse. (Id. at 17). Appellant highlights that he did not even know Officer
Wolfe’s daughter and that he did not describe or name any specific sex act.
Appellant posits that his comments were “stock insults” and “merely immature
and the product of frustration at the expense of the tow.” (Id. at 18-19).
Appellant concludes the Commonwealth presented insufficient evidence to
sustain his disorderly conduct conviction, and this Court must grant relief. We
disagree.
The Crimes Code defines the offense of disorderly conduct, in relevant
part, as follows:
§ 5503. 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:
…
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(3) uses obscene language, or makes an obscene gesture[.]
18 Pa.C.S.A. § 5503(a)(3).
When determining whether language is “obscene” for purposes of
Section 5503(a)(3), we apply the three-part test set forth in Miller v.
California, 413 U.S. 15,
93 S.Ct. 2607,
37 L.Ed.2d 419 (1973).
Commonwealth v. Kelly,
758 A.2d 1284, 1286 (Pa.Super. 2000). This test
requires us to decide: (1) whether the average person, applying contemporary
community standards would find that the work (or statement), taken as a
whole, appeals to the prurient interest; (2) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by
the applicable state law; and (3) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
Id. See also
Miller,
supra at 24,
93 S.Ct. at 2615. A “prurient interest” has “a tendency to excite
lustful thoughts” which roughly encompasses “a shameful or morbid interest
in nudity, sex, or excretion.” Roth v. United States,
354 U.S. 476, 487 n.20,
77 S.Ct. 1304, 1310,
1 L.Ed.2d 1498 (1957).
“Vulgar language, however distasteful or offensive to one’s sensibilities,
does not become a crime because people standing nearby stop, look, and
listen.” Commonwealth v. Weiss, 490 A.2d 853, 856 (Pa.Super. 1985).
Thus, this Court has reversed a defendant’s conviction for disorderly conduct
under subsection (a)(3) where the defendant yelled “fuck the police” or other
similar statements which are offensive or vulgar but lack a sexual connotation.
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See, e.g., Commonwealth v. Pennix, 176 A.3d 340, 341-42 (Pa.Super.
2017) (reversing appellant’s conviction for disorderly conduct where appellant
stated to deputy in courthouse “Fuck you I ain’t got time for this,” “Fuck you
police” and “I don’t got time for you fucking police”); Commonwealth v.
McCoy,
69 A.3d 658, 661 (Pa.Super. 2013), appeal denied,
623 Pa. 761,
83
A.3d 414 (2014) (reversing appellant’s conviction for disorderly conduct where
appellant shouted “Fuck the police” multiple times; there is no evidence that
appellant’s chant was intended to appeal to anyone’s prurient interest nor did
it describe, in patently offensive way sexual conduct);
Kelly, supra at 1285
(reversing appellant’s conviction for disorderly conduct where appellant said
“Fuck you, asshole” to borough street department employee and displayed
hand gesture of extending middle finger; here, appellant’s use of “F-word”
and middle finger were angry words and angry gesture having nothing to do
with sex; rather, they were meant to express disrespect to, and to offend,
borough employee); Commonwealth v. Muhammad, No. 690 MDA 2022,
unpublished memorandum at 2 (Pa.Super. filed Jan. 11, 2023) 2 (reversing
appellant’s conviction for disorderly conduct where appellant told security
officer “I’m not fucking talking to you” and said “fuck you” twice to deputy
sheriff and security officer).
Conversely, this Court has upheld convictions under Section 5503(a)(3)
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2 See Pa.R.A.P. 126(b) (stating this Court may rely on unpublished decisions
of this Court filed after May 1, 2019 for their persuasive value).
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where the defendant’s remarks have a sexual component. Recently, in
Commonwealth v. Rosenberger, Nos. 477 EDA 2023, 496 EDA 2023, 2024
WL 3290755 (Pa.Super. filed July 3, 2024) (unpublished memorandum), this
Court affirmed the appellant’s convictions for disorderly conduct under Section
5503(a)(3). On appeal, the appellant claimed that his comments did not
constitute “obscene” language under the statute and were merely vulgarities
that did not “involve conduct appealing to a prurient interest or the description
of sexual conduct in a patently offensive way.” See id. at *4. This Court held
that the appellant’s reliance on Pennix, McCoy, and Kelly was misplaced
because those cases involved “angry words … having nothing to do with sex.”
Id. at *4. In affirming the appellant’s convictions, this Court explained:
With respect to the first period, on March 8, 2021, [Victim’s]
security system recorded [Appellant] saying, “[F]uck you,
cunt,” and making four separate remarks that [Victim] was
“trying to prosecute a person for jerking off in front of
children.” Taken as a whole, [Appellant’s] rant, where he
used an offensive term for female genitalia and a lewd term
for describing masturbation, particularly when paired with
the reference to children, all directed at a woman who
refused his sexual advances, appealed to the prurient
interest, described sexual conduct in a patently offensive
way, and had no serious literary, artistic, political, or
scientific value.
With respect to the second period, on October 2, 2021,
[Victim’s] security system recorded [Appellant] calling
[Victim] a “beautiful woman,” then describing his conduct
with respect to her as the “equivalent of a dick pic,” asking
“how high quality that dick pic was,” stating that “dick pics
usually have a way of giving the warning and a choice,” and
that he hoped [Victim] and her family remembered the “dick
pic.” The phrase “dick pics” refers to pictures of male
genitalia which are sent to others for the purpose of inciting
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sexual thoughts. Thus, we again conclude [Appellant]
attempted to appeal to a prurient interest, described his
conduct in a lewd and patently offensive way, and there was
no serious literary, artistic, political, or scientific value to his
words.
Id. at *5 (internal citations omitted).
Instantly, in evaluating Appellant’s sufficiency challenge, the trial court
reasoned:
The Officer and the Witness were credible. The evidence
supports the conviction of Disorderly Conduct § 5503(a)(3).
The encounter took place on a public street with several
individuals observing, recklessly creating alarm and
annoyance. [Appellant’s] conduct and words were obscene.
In addition to being profane, [Appellant’s] words were
obscene because his language appeals to the prurient
interest, and he described in a patently offensive way,
sexual conduct directed toward the Officer’s daughter. …
The evidence established that [Appellant] persisted in his
conduct after being requested to desist; thus, the conviction
of the offense graded as a misdemeanor of the third degree
was well supported.
(Trial Court Opinion at unnumbered p. 6).
The record supports the court’s analysis. Officer Wolfe testified that
Appellant stated “that he would be seeing my daughter. Then proceeded to
tell me not to worry because he’s a lover, not a fighter.” (N.T. Trial, 9/1/22,
at 9). Additionally, Paul Beisler testified that Appellant said, “he wanted to F
[Officer Wolfe’s] daughter and he wanted to … get her daughter pregnant so
[he could] … cost Officer Wolfe money that Officer Wolfe was costing him by
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having his car towed.” (Id. at 25).3 Mr. Beisler interpreted Appellant’s
remarks as threatening Officer Wolfe. (Id. at 28).
Unlike Pennix, McCoy, Kelly, and Muhammad, this case does not
involve mere “angry words” having nothing to do with sex. Compare Pennix,
supra;McCoy, supra;Kelly, supra; Muhammad, supra. Rather,
Appellant’s comments that he is a “lover, not a fighter” and wanted to have
sex with and impregnate the officer’s daughter, satisfy the second and third
prongs of the Miller test. See Miller, supra;4
Kelly, supra. See also
McCoy, supra; Rosenberger, supra. Thus, Appellant’s comments
constituted obscene language under existing relevant authority. Viewed in
the light most favorable to the Commonwealth as verdict winner, the evidence
was sufficient to sustain Appellant’s conviction for disorderly conduct. See 18
Pa.C.S.A. § 5503(a)(3);
Sebolka, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
President Judge Lazarus joins this opinion.
Judge Dubow files a dissenting opinion.
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3 In the affidavit of probable cause, Officer Wolfe relayed that Mr. Beisler had
stated that Appellant said “I’m going to put my black dick in her daughter.
Hopefully she gets pregnant.” (Affidavit of Probable Cause, 11/12/21, at 2).
Thus, it appears that Mr. Beisler may have paraphrased Appellant’s statement
at trial.
4 There is no dispute that Appellant’s comments also satisfy the third prong of
the Miller test because they lack “serious literary, artistic, political, or
scientific value.” See id. at 24, 93 S.Ct. at 2615.
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DATE: 11/13/2024
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