Commonwealth v. Cook ( 1976 )

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 the 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 disperse 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.

Order 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.

1 . These appeals were originally scheduled for argument at our March, 1975 session, but because of noncompliance with Pa.R. Crim.P. 235, the Attorney General of the Commonwealth not having been notified, this case was rescheduled and argued at our September, 1975 session.

2 . The above procedure is in clear contravention of Pa.R.Crim.P. 304 concerning written pretrial applications. Given our disposition of this case, we do not reach the propriety of such an oral motion.

3 . 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.”

4 . Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, et seq., 18 C.P.S.A. § 5901.