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2000 PA Super 254
COMMONWEALTH OF PENNSYLVANIA, :
IN THE SUPERIOR COURT OF
LINDA C. KELLY,
No. 1135 MDA 1999
Appeal from the Judgment of Sentence entered June 29, 1999
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No. S276-98.
BEFORE: STEVENS, MUSMANNO, and LALLY-GREEN, JJ.
OPINION BY LALLY-GREEN, J.:
Filed: August 28, 2000
Appellant, Linda C. Kelly, appeals the judgment of sentence of a
$25.00 fine and costs imposed following her summary conviction of
disorderly conduct for using obscene language.1 We reverse.
The facts, as found by the trial court, are as follows.
Appellant, while driving a car, came upon a
work area on a public highway. A borough street
department employee approached her vehicle when
it appeared that she was not responding to
directions. The worker asked her what she intended
to do whereupon appellant said, "Fuck you, asshole"
and gave the worker the "finger".
Trial Court Opinion, 7/23/99, at 2. On April 29, 1998, Appellant was issued
a citation for disorderly conduct, on the basis of using obscene language and
making an obscene gesture. On August 10, 1998, a district justice
1 18 Pa.C.S. § 5503(a)(3).
adjudicated Appellant guilty of disorderly conduct and sentenced Appellant
to a $25.00 fine and costs.
On June 29, 1999, after a summary appeal hearing, the trial court
found Appellant guilty of disorderly conduct and imposed the same fine and
costs. This appeal followed.
Appellant raises three issues on appeal:
1) Whether the Defendant used obscene language or
made an obscene gesture, either of which is
required under § 5503 (a)(3) prosecutions?
2) Whether the Defendant used "fighting" words
sufficient to constitute a violation of the
disorderly conduct provisions of the Crimes Code?
3) Whether the evidence presented was sufficient as
a matter of law to convict the Defendant of the
crime actually lodged against her?
Appellant's Brief at 3.
Although Appellant raises three issues in her Statement of Questions
Involved, Appellant states, in the argument portion of her brief, that "the
question argued is whether the language used and the gesture described are
obscene." Appellant's Brief at 6. Appellant admits using the language and
making the gesture described but argues they are not obscene. Id. at 8.
We will, thus, address whether "the language used and the gesture
described are obscene" under 18 Pa.C.S. § 5503(a)(3) in the circumstances
of this case. This Court must view the evidence and all reasonable
inferences to be drawn from the evidence in the light most favorable to the
Commonwealth as verdict winner and determine if the evidence was
sufficient to enable the fact-finder to establish all the elements of the
offense. Commonwealth v. Marks, 704 A.2d 1095, 1098 (Pa. Super.
1997), appeal denied, 555 Pa. 687, 722 A.2d 1056 (1998).
Appellant's case involves a conviction under 18 Pa.C.S. § 5503(a)(3).
Section 5503(a) provides as follows:
Offense defined. A person is guilty of disorderly
conduct if, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk
(1) engages in fighting or threatening, or in violent
or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene
(4) creates a hazardous or physically offensive
condition by any act which serves no legitimate
purpose of the actor.
18 Pa.C.S. § 5503(a).
The first inquiry is what is the definition of "obscene" for purposes of
18 Pa.C.S. § 5503(a)(3). This Court has held that, for purposes of a
disorderly conduct statute prohibiting the use of obscene language,
language is obscene if it meets the test set forth in Miller v. California,
413 U.S. 15 (1973):
(a) whether "the average person, applying
contemporary community standards" would find that
the work, taken as a whole, appeals to the prurient
interest, (b) whether the work depicts or describes,
in a patently offensive way, sexual conduct
specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
Commonwealth v. Bryner, 652 A.2d 909, 912 (Pa. Super. 1995) In
Bryner, our Court held that the phrase "go to hell Betsy" was not obscene.
Thus, we use the Bryner test to determine whether words and gestures are
obscene for purposes of 18 Pa.C.S. § 5503(a)(3).
Our next inquiry is whether the "F-word" and the gesture are obscene
within the meaning of 18 Pa.C.S. § 5503(a)(3). While we have found no
jurisprudence directly on point, we have found cases that provide guidance
as to the proper resolution of this case, e.g., Commonwealth v. Hock, 728
A.2d 943 (Pa. 1999); Commonwealth v. Fenton, 2000 Pa. Super. 102;
and Brockway v. Shepherd, 942 F. Supp. 1012 (M.D. Pa. 1996).
¶10 Our Supreme Court addressed Section 5503(a)(1) (and not Section
5503(a)(3)) recently in Commonwealth v. Hock, 728 A.2d 943 (Pa.
1999). There, a person directed a profane remark, "F-- you, asshole," at a
police officer. The Court concluded that the utterance was not sufficient to
support a conviction of disorderly conduct under Section 5503(a)(1) because
the utterance did not amount to "fighting words" under 18 Pa.C.S. §
5503(a)(1). The Court concluded that, under the facts of the case, Hock's
comment did not risk an immediate breach of the peace. Hock, 728 A.2d at
¶11 The Court then said the following:
Moreover, the offense of disorderly conduct is not
intended as a catchall for every act which annoys or
disturbs people; it is not to be used as a dragnet for
all the irritations which breed in the ferment of a
community. It has a specific purpose; it has a
definite objective, it is intended to preserve the
public peace; it has thus a limited periphery beyond
which the prosecuting authorities have no right to
transgress any more that the alleged criminal has
the right to operate within its clearly outlined
Id. at 947.
¶12 While Justice Castille dissented in Hock, he commented that:
Appellant's words, while certainly obscene according
to common parlance, do not fit the definition of
"obscene" under Section 5503(a)(3) of the
Disorderly Conduct Statute. . . . [L]anguage is
obscene if it meets the test set forth in Miller. . . .
Id. at 947, n. 1.
¶13 We recently addressed the use of an allegedly obscene word in the
context of harassment by communication, 18 Pa. C.S.A. 5504(a), in
Commonwealth v. Fenton, 2000 Pa. Super. 102. Section 5504(a)
provides, in pertinent part, that a person commits said crime if:
with intent to harass another, he: makes a telephone
call without intent of legitimate communication or
addresses to or about such other person any lewd,
lascivious or indecent words or language of
anonymously telephones another person repeatedly;
or makes repeated communications anonymously or
at extremely inconvenient hours, or in offensively
There, the appellant made one offending call to a congressman and
threatened to shoot the "F--ing head" off the congressman and his aide. We
concluded that while appellant's use of the "F-word" "won him no praise for
eloquence or intelligence," such use of the "F-word" did not constitute
sexually explicit language because, in context, it had nothing to do with sex.
Fenton, 2000 Pa. Super. 102, ¶ 15, ¶ 16.
¶14 We observe that Section 5503(a)(3) has been addressed by the
federal court in Brockway v. Shepherd, 942 F.Supp. 1012, 1016 (M.D. Pa.
1996). There, the federal district court for the Middle District addressed the
question of whether an appellant violated Section 5503(a)(3) by making an
obscene gesture, extending the proverbial "middle finger," after a vehicle
stop. That Court observed that there are times when conduct using a base
term for sex may be intended to express disrespect for someone and to
offend that person, yet not constitute offensive communication. The
Brockway Court reasoned that the intent behind the crime of disorderly
conduct was to prevent people from using gestures or language in a way
that would "engender public turmoil" and found it "would be a rare person
who would be `turned on' by the display of a middle finger or the language it
represents. . . ." Brockway, 942 F.Supp. at 1015.
¶15 Guided by the above, we now examine whether, in the circumstances
of Appellant's case, the language and gesture used are obscene for purposes
of 18 Pa.C.S. § 5503(a)(3). The record reveals that Appellant was in her car
at a public intersection where some roadwork was being performed. N.T.,
6/29/99, at 4-8. Appellant encountered an employee of the Borough's street
department. Id. This employee was directing traffic and motioning the
traffic with flags, one in each hand. Id. When the employee failed to
communicate with Appellant by use of the flags, the employee walked over
to Appellant's car and engaged in a conversation. Id. The conversation
ended when Appellant directed the phrase "F-- you" to the employee. Id. at
4. The employee walked back toward the intersection. Id. at 5. Appellant
then drove past him, directed the words "F-- you asshole" towards him and,
at the same time, added a hand gesture consisting of an extended middle
¶16 Are the language and gesture obscene under Bryner? Echoing Justice
Castille's observations, we do not dispute that Appellant's words are obscene
according to common parlance. Yet, as he cautioned, our relevant test is
the Miller test, i.e., the Bryner test. Hock, 728 A.2d at 947, n.1. There,
he concluded that use of the "F-word" did not fit the definition of "obscene"
under Section 5503(a)(3). Id.
¶17 We now inquire whether "the average person, applying contemporary
community standards," would find that the utterance and the gesture, in the
context of the circumstances of the case, appeal to the prurient interest and
describe, in a patently offensive way, sexual conduct specifically defined by
the applicable state laws.2 We are guided by Judge Eakin's astute comment
One need not cuss like the proverbial sailor to know
that in today's America the "F-word" is used much
too freely, but very creatively. Anyone attending an
R-rated movie has heard the word used to describe
the good, the bad and the ugly. . . . Here [the F-
word is language that] was clearly meant to be
emphatic, even coarse, and in this appellant
succeeded. However, the only reasonable perception
of the angry [word] had nothing to do with sex.
2000 Pa. Super. 102, ¶ 16.
¶18 Here, the record supports a conclusion that Appellant's use of the "F-
word" and use of the middle finger were angry words and an angry gesture
having nothing to do with sex. The words and gesture were meant to
express disrespect to, and to offend, the Borough employee. The record
fails to support a conclusion that the words and gesture, as used in the
circumstances of Appellant's case, appeal to the prurient interest or a
depiction, in a patently offensive way, of relevant sexual conduct. Thus,
while the words and conduct used by Appellant were disrespectful, insulting
and offensive, they were, in the circumstances of this case, not "obscene"
within the meaning of Section 5503(a)(3). Further, the record fails to
support a conclusion that Appellant's comment risked an immediate breech
of the public peace. See, Hock, 728 A.2d 946-47. On review of the record,
2 Such a phrase has no serious literary, artistic, political or scientific value. See, the third
leg of the Bryner test. 652 A.2d at 912.
the evidence is insufficient to support a conviction of disorderly conduct
under Section 5503(a)(3). Appellant's claim has merit.
¶19 Accordingly, on the basis of the foregoing, we reverse Appellant's
judgment of sentence.
¶20 Judgment of sentence reversed.
¶21 Judge Stevens files a concurring opinion.
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
LINDA C. KELLY,
No. 1135 MDA 1999
Appeal from the Judgment of Sentence Entered June 29, 1999
In the Court of Common Pleas of Lancaster County
Criminal No. S276-98
BEFORE: STEVENS, MUSMANNO and LALLY-GREEN, JJ.
CONCURRING OPINION BY STEVENS J.:
I concur with the Majority's interpretation of the statute, especially as
it relates to the legal definition of "obscenity."
In the instant case, however, Appellant, while driving a car, came
upon a work area on a public highway where there were several borough
street department employees. For the safety of motorists, one employee
approached Appellant in an effort to direct traffic. Appellant responded with
profanity, i.e., "fuck you, asshole," and drove away with her left arm
extended out her driver's window, giving the borough employee "the finger"
in plain view of the public.
I would find, under the circumstances of this case, that Appellant's
behavior was clearly combative, particularly in today's culture of "road
Moreover, arguably, the emotionally charged profanity coupled with
the obscene gesture could be considered "fighting words" in violation of
§5503(a)3. See Commonwealth v. Mastrangelo, 489 Pa. 254, 262, 414
A.2d 54, 58 (1980) (citation omitted) (holding that "fighting words" are
"those which by their utterance inflict injury or tend to incite an immediate
breach of the peace").
Nevertheless, I urge the Pennsylvania Legislature to revise the
disorderly conduct statute to specifically prohibit the type of conduct
exhibited by Appellant in this case. Public employees, volunteer firefighters
and emergency personnel who are carrying out their duties for the safety of
citizens should not be subjected to such abusive behavior as exhibited by
Appellant. The current state of the law does nothing to discourage such
conduct, and it would be appropriate for the Legislature to review and revise
the statute accordingly.
3 The statute provides, in pertinent part: "A person is guilty of disorderly
conduct if, with intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he: . . . engages in fighting or threatening,
or in violent or tumultuous behavior. . . ." 18 Pa.C.S. § 5503(a)(1).
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