Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 300 of 1973, in case of Commonwealth of Pennsylvania v. Max Weiner.
David H. Moskowitz, with him Weiss, Nelson & Moskowitz, for appellant.
Martin J. King, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Jacobs, J., concurs in the result. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.
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Appellant was arrested for and convicted of disorderly conduct for violation of the proscriptions of Section 406 of the Penal Code.*fn1 Appellant here contends that his conduct did not constitute the crime of disorderly conduct. Appellant also contends that even if the statute is interpreted to include the conduct involved here, this conduct is constitutionally protected under the First Amendment to the United States Constitution. We do not agree with appellant's argument and therefore affirm the decision of the lower court.
The facts, as found by the lower court, indicate that several Warminster Township Police officers were dispatched to the scene of the arrest, a residential area, following the receipt of a number of complaints concerning excessive noise. There the officers observed a small group of people carrying signs and picketing while another person spoke over a portable public address system.
The system consisted of a microphone, amplifier, and two speakers mounted back to back on a tripod. The group, representing an organization known as Consumers Education and Protective Association, was demonstrating to protest an alleged failure of a home
[ 230 Pa. Super. Page 248]
improvement contractor to complete a job he had been paid to do by one of the organization's members. The contractor's home-office was nearby. Although the evidence as to the volume of noise was conflicting,*fn2 the hearing judge resolved the issue of credibility in favor of the Commonwealth. Since this finding is supported by the record, it will not be disturbed on appeal. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972).
The officers informed appellant that his group could picket peacefully but as several complaints had been made concerning the noise, they must discontinue use of the loud speaker. Appellant told the officers he had received permission from the police chief to use the public address system. The officers warned appellant several times about using the loud speaker and finally told him he would be arrested if he persisted in using it. Appellant again used the speaker declaring his civil rights were being violated, and the police then arrested him.
The Supreme Court of Pennsylvania in Commonwealth v. Greene, 410 Pa. 111, 189 A.2d 141 (1963), has upheld the constitutionality of the statute in question. The statute does not forbid any specific speech but merely regulates the volume at which speech may be impressed upon the ears of the community. The act is neither overbroad nor vague but is limited and specific in nature. The late Mr. Justice Musmanno, writing for the Majority in the Greene case, ably discussed the statute and set forth the general rules and guidelines for its application. The ...