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.
DISSENTING OPINION BY DUBOW, J.: FILED: November 13, 2024
I respectfully dissent from the Majority’s decision to affirm Appellant’s
judgment of sentence because I characterize Appellant’s statements as ones
that threaten sexual violence and, thus, do not have a tendency “to excite
lustful thoughts.” Accordingly, the statements do not meet the definition of
“obscene” as articulated in Miller v. California, 413 U.S. 15 (1973) and Roth
v. United States,
354 U.S. 476 (1957). I would, therefore, conclude that
the Commonwealth’s evidence was insufficient to prove the element of
“obscenity” for the offense of Disorderly Conduct.
As noted by the Majority, a person is guilty of Disorderly Conduct “if,
with intent to cause public inconvenience, annoyance[,] or alarm, or recklessly
creating a risk thereof, he [] uses obscene language, or makes an obscene
gesture[.]” 18 Pa.C.S. § 5503(a)(3) (emphasis added). Courts have defined
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language as “obscene” when, inter alia, it appeals to a person’s prurient
interest. Miller, 413 U.S. at 24. A prurient interest has a “tendency to excite
lustful thoughts” and roughly encompasses “a shameful or morbid interest in
nudity, sex, or excretion[.]” Roth,
354 U.S. at 487 n. 20 (citations omitted).
In this case, Appellant argues that his statements did not appeal to the
prurient interest because they did not describe a specific sex act in a prurient
manner or depict or describe sexual conduct in a patently offensive way.
Appellant’s Brief at 15-18. Instead, Appellant claims that he expressed his
statements to retaliate financially against Officer Wolfe and the statements
were “merely immature and the product of frustration at the expense of the
tow.” Id. at 18. The Majority rejects this characterization and finds that the
statements were obscene because they were of a sexual nature. Majority Op.
at 8-9. I agree that Appellant’s statements were of a sexual nature. Where
the Majority and I part ways, however, is regarding whether the statements
appeal to one’s prurient interests and, thus, meet the definition of “obscenity.”
According to the trial court, after Officer Wolfe conducted a traffic stop
of a car that Appellant was driving, Appellant, during the hour-long encounter,
was belligerent, screamed at the officer, and called her a “fucking bitch”
numerous times. Trial Ct. Op., 2/8/24, at 4 (unpaginated). Of most
significance to my analysis are Appellant’s statements that he advised Officer
Wolfe “that he’d be seeing [her] daughter” and then “not to worry because
he’s a lover, not a fighter.” Id. Appellant then screamed at Officer Wolfe that
Appellant “wanted to ‘F’ his daughter” and “he wanted to get her daughter
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pregnant so he could cost . . . Officer Wolfe money that Officer Wolfe was
costing him.”1 Id. at 4-5.
The Majority agrees with the trial court’s characterization of these
statements as “sexual activity directed towards the police officer’s daughter.”
Majority Op. at 8 (quoting Trial Ct. Op. at 6). The Majority, in concluding that
these statements met the definition of “obscenity,” analogizes these
statements to those the defendant made in Commonwealth v.
Rosenberger, Nos. 477 EDA 2023, 496 EDA 2023, 2024 WL 3290755 (Pa.
Super. filed July 3, 2024) (non-precedential decision). Majority Op. at 8-9.
In Rosenberger, the defendant, over a period of months, made
statements to a woman who refused his sexual advances, which included
referring to her as “cunt” and ranting about “jerking off in front of children”
and his “dick pic.” 2024 WL 3290755, at *5. In concluding that these
statements appealed to the prurient interest and met the definition of
“obscenity” for purposes of the Disorderly Conduct conviction, the Superior
Court reasoned:
With respect to the first period, on March 8, 2021, [Victim’s]
security system recorded Rosenberger 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, Rosenberger’s rant, where he used an offensive term for
female genitalia and a lewd term for describing masturbation,
____________________________________________
1 As the Majority noted, the witness, Mr. Beisler, may have paraphrased
Appellant’s statement at trial because the Affidavit of Probable Cause stated
that Appellant said “I’m going to put my black dick in her daughter. Hopefully
she gets pregnant.” Although this statement is more vulgar than the
statement Mr. Beisler testified to, it does not change my analysis.
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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 Rosenberger 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 sexual thoughts. Thus, we again conclude Rosenberger
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. (internal citations omitted).
The Majority in this case concludes that Appellant’s statements appeal
to the prurient interest because Appellant’s comments include his statement
that he is a “lover, not a fighter” and wanted to have sex with and impregnate
the officer’s daughter. Majority Op. at 9.
Although this is a close call, I characterize Appellant’s statements
differently and focus on their coercive aspects. The defendant’s sexually
oriented statements in Rosenberger did not involve a threat to rape the
victim, but rather name calling and highlighting the manner in which the victim
sexually aroused the defendant, which could have a “tendency to excite lustful
thoughts.” In contrast, a threat to engage in sexual violence does not and
should not have a “tendency to excite lustful thoughts” and, thus, does not
meet the definition of “obscenity.”
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My characterization of the statement as depicting sexual violence is not
lessened by Appellant’s statement that he “is a lover, not a fighter.” He still
expressed a desire to force Officer Wolfe’s daughter to engage in sexual
intercourse so that he could impregnate her.
While Appellant’s statements are vulgar, troubling, and personally
offensive, I cannot conclude that this threat of sexual violence does or should
“appeal to one’s prurient interest” and, thus, meets the definition of
“obscenity.” I emphasize that I do not condone Appellant’s conduct; rather,
I believe that Appellant’s threatening statements meet the statutory
requirements for a different crime, Terroristic Threats, 18 Pa.C.S. §
2706(a)(1).
For these reasons, I would be constrained to reverse Appellant’s
conviction for Disorderly Conduct.
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