Com. v. Bliesath, J.

J-S18003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JADIN BLIESATH :
:
Appellant : No. 1491 MDA 2021
Appeal from the Judgment of Sentence Entered October 21, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001889-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: AUGUST 5, 2022
Appellant, Jadin Bliesath, appeals from the judgment of sentence of 90
days’ probation, imposed after he was convicted, following a non-jury trial, of
disorderly conduct under 18 Pa.C.S. § 5503(a)(3). Appellant challenges the
sufficiency of the evidence to support his conviction, as well as the court’s
determination that he was competent to stand trial. After careful review, we
reverse Appellant’s conviction and vacate his judgment of sentence.
The trial court briefly summarized the evidence presented at Appellant’s
trial, as follows:
The Commonwealth presented evidence that [Appellant] was seen
by [City of Reading Police] Officer [Sean] Driscoll yelling at
random people in the area of 6th and Penn Streets in the City of
Reading. After being asked to stop by the [o]fficer, and failing to
do so, the [o]fficer got out of the vehicle and approached
[Appellant] to again ask him to stop and ask[] for his
identification. When the [o]fficer was writing down [Appellant’s]
information, the [o]fficer observed [Appellant] yell racial slurs and
J-S18003-22
threats at two males walking down the street while the [o]fficer
was standing right in front of [Appellant].
Trial Court Opinion (TCO), 2/15/22, at 4. Specifically, Officer Driscoll stated
that Appellant “yelled at the people to the southwest corner[, ‘]shut up you
niggers[,’] and then he yelled again[, ‘]shut up I’m going to kill you because
you are niggers[,’] and then he shouted[, ‘]I have two guns on me.[’]” N.T.
Trial, 10/21/21, at 16.
Based on these facts, Appellant was charged with disorderly conduct
under 18 Pa.C.S. § 5503(a)(3). That provision reads:
A person is guilty of disorderly conduct if, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating
a risk thereof, he:
***
(3) uses obscene language, or makes an obscene gesture[.]
18 Pa.C.S. § 5503(a)(3).
Appellant proceeded to a non-jury trial on October 21, 2021. At the
outset thereof, Appellant’s counsel indicated to the court that, “based on the
numerous conversations [she had] had with [Appellant,]” she believed that he
was “not competent to proceed to trial.” N.T. Trial at 3. Counsel explained
that she had not had any “rational discussion about the facts” with Appellant,
and he also refused to get a mental health evaluation. Id. at 4. The court
then conducted a colloquy of Appellant. Id. at 6-11. Although the court did
not specifically state that it found Appellant competent to proceed, the court
began Appellant’s non-jury trial, thereby indicating it made such a finding.
Id. at 12.
-2-
J-S18003-22
At the conclusion of trial, the court convicted Appellant of disorderly
conduct and immediately sentenced him to 90 days’ probation. Id. at 34.
The court also directed Appellant to undergo a mental health evaluation. Id.
Appellant filed a timely post-sentence motion, which the court denied. He
then filed a timely notice of appeal.1 Appellant also timely complied with the
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion on February
15, 2022. Herein, Appellant states two issues for our review:
[I.] Whether the Commonwealth failed to present sufficient
evidence that [Appellant] used obscene language to support a
guilty verdict for [d]isorderly [c]onduct.
[II.] Whether the trial court’s competency determination was
based … [on] a deficient colloquy and the court erred in
determining that [Appellant] was competent to proceed to trial.
Appellant’s Brief at 4.
In assessing Appellant’s first issue, we apply the following standard of
review:
When reviewing a claim that the trial court erred in determining
the evidence was sufficient to prove an offense, an appellate court
must assess the evidence and all reasonable inferences from that
evidence most favorably to the verdict winner. Commonwealth
v. Whitacre, 878 A.2d 96, 99 (Pa. Super.), appeal denied, … 892
A.2d 823 ([Pa.] 2005). As long as the evidence and inferences
provide sufficient information to establish proof beyond a
reasonable doubt, the evidence is sufficient. Id. Further, the
Commonwealth can meet its burden of reasonable doubt “by
means of wholly circumstantial evidence.” Id.____________________________________________
1On December 14, 2021, Appellant filed a motion to stay his sentence pending
our decision in this appeal. The court granted his motion that same day.
-3-
J-S18003-22
Commonwealth v. Pennix, 176 A.3d 340, 342–43 (Pa. Super. 2017).
Instantly, Appellant contends that his “conviction for [d]isorderly
[c]onduct is improper[,] as the Commonwealth failed to sufficiently establish
that [Appellant] used obscene language.” Appellant’s Brief at 15. He insists
that “[t]he Commonwealth established that [he] shouted and used highly
offensive language, but nothing that is considered obscene under the law.”
Id.After careful consideration, we agree. In Pennix, the appellant
attempted to enter the Family Court building on Ross Street, but
was detained at the metal detector when a scan of her book bag
revealed the presence of a knife and razor blades. [The appellant]
was asked to remove the items from her bag, but she had difficulty
locating them and became argumentative with the deputy. [The
appellant] continued to get more and more agitated, and was
heard screaming “Fuck you I ain’t got time for this,” “Fuck you
police” and “I don’t got time for you fucking police.” She was
subsequently instructed to leave the building, but she refused and
continued to scream and be disruptive until she was escorted from
the building by Sheriff’s deputies.
Pennix, 176 A.3d at 341-42 (citations to the record omitted).
Pennix was ultimately convicted of, inter alia, disorderly conduct under
section 5503(a)(3). In assessing her argument that the Commonwealth’s
evidence was insufficient to prove she used obscene language or an obscene
gesture, we began by recognizing:
It is well-settled that “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.” Commonwealth v.
Mauz, 122 A.3d 1039, 1041 (Pa. Super. 2015) (citations
omitted). The Commonwealth has cited this Court’s decision
-4-
J-S18003-22
in Commonwealth v. McCoy, 69 A.3d 658, 665 (Pa. Super.
2013), in which we held that there was insufficient evidence to
support a defendant’s conviction of disorderly conduct when the
defendant chanted “fuck the police” during a funeral procession of
a fallen police officer. We concluded that the defendant’s words
were not obscene under Section 5503(a)(3) because “there was
no evidence that the chant was intended to appeal to anyone’s
prurient interest nor did it describe, in a patently offensive way,
sexual conduct.” Id. at 666.
Likewise, in Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super.
2000), we reversed an appellant’s conviction of disorderly conduct
under Section 5503(a)(3) for profanely responding “fuck you,
asshole” to a street department employee and accompanying the
response with the extension of his middle finger. We explained:
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).
Id. at 345.
Applying this law to the facts of Pennix’s case, we explained:
Our next inquiry is whether the “F-word” and the gesture are
obscene within the meaning of 18 Pa.C.S. § 5503(a)(3)….
-5-
J-S18003-22
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 946….
While Justice Castille dissented in Hock, he commented that:
[The a]ppellant’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.
Kelly, 758 A.2d at 1286–87.
Here, as in Kelly, there is insufficient evidence to support [the
a]ppellant’s disorderly conduct conviction where her words “were
angry words … having nothing to do with sex.” Kelly, 758 A.2d
at 1288. Our conclusion in Kelly also applies here:
[W]hile the words and conduct used by [the a]ppellant 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 [the a]ppellant’s comment risked
an immediate breech [sic] of the public peace.
Id. (citation omitted).
Pennix, 176 A.3d at 345–46.
In the present case, Appellant argues:
Here, testimony presented at trial establishes that [Appellant]
shouted[,] “shut up you niggers[,]” and[,] “shut up I’m going to
kill you because you are niggers[,]” and that he had two guns.
[Appellant] denied saying any of this in his testimony, but whether
he did or not is irrelevant. Like Bryner[] and its progeny…,
-6-
J-S18003-22
nothing that [Appellant] said could possibly be construed as
sexual or appealing to the prurient interests. The language used
is, of course, vulgar and highly offensive, but, as the dissent in …
Hock put it, the language may be “obscene according to common
parlance” but it does “not fit the definition of obscene under
section 5503(a)(3).” … Hock, 728 A.2d at 947 (Castile, J.
dissenting); see Kelly, 758 A.2d at 1287.
[Appellant] was charged specifically under the section of
disorderly conduct pertaining to obscene language. Despite the
testimony regarding the volume of his voice[,] he was not charged
with making unreasonable noise under 18 Pa.C.S.[] § 5503(a)(2).
To the extent that his words could be considered so offensive as
to become fighting words, that would fit under 18 Pa.C.S.[] §
5503(a)(1) for fighting or tumultuous behavior. See McCoy, 69
A.3d at 666. Instead, the evidence presented must be sufficient
to establish that his language was obscene as defined in the law.
[Appellant’s] language cannot reasonably be construed as sexual
in nature or appealing to the prurient interests and thus his
conviction under the charged section for disorderly conduct must
fail.
Appellant’s Brief at 17-18 (citation to the record omitted).
Notably, the Commonwealth agrees with Appellant, conceding that,
[i]n this case, [Appellant’s] words[,] while obscene under the
common parlance, do not fit the statutory definition of obscene
from the case law cited above. There is nothing about his use of
the derogatory words ‘nigger’ which appeals to the prurient
interest or depicts sexual conduct. Additionally, while
[Appellant’s] words likely would have qualified to sufficiently fit
the crime under subsections (a) as fighting words, or subsection
(b) as unreasonable noise[, it] is unfortunately not up for debate
as they were not charged. The Commonwealth is tasked with
proving the case which it has charged, and that is a result that did
not happen here.
Commonwealth’s Brief at 7.
We appreciate the Commonwealth’s candor with this Court, and we
concur with the parties that Appellant’s conviction must be reversed. Although
the trial court found that “[t]he racial slurs” used by Appellant “were clearly
-7-
J-S18003-22
[‘]obscene language[’] within [the meaning of] the statute[,]” the court
offered no legal authority to support that conclusion. TCO at 6. The case law
discussed supra interprets ‘obscene language’ in the statute as meaning
something that describes a sexual act or appeals to one’s prurient interest.
Here, the racial slurs spoken by Appellant, although deplorable and highly
offensive, do not constitute ‘obscene language’ under section 5503(a)(3).
Accordingly, we reverse his conviction for disorderly conduct and vacate his
judgment of sentence. Given this disposition, we need not address Appellant’s
second issue challenging the court’s finding him competent to stand trial.
Conviction reversed. Judgment of sentence vacated.
Judge McLaughlin joins this memorandum.
Judge McCaffery concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/05/2022
-8-