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COMMONWEALTH v. DUNCAN (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
DUNCAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nos. 74-00-2624 and 74-05-382, in case of Commonwealth of Pennsylvania v. Darryl Duncan.

COUNSEL

Ellen T. Greenlee, Assistant Defender, with her John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellant.

Neil Kitrosser, Assistant District Attorney, with him Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Jacobs, J., concurs in the result. Dissenting Opinion by Hoffman, J. Dissenting Opinion by Price, J. Dissenting Opinion by Spaeth, J.

Author: Van Der Voort

[ 239 Pa. Super. Page 541]

On May 9, 1974, Deborah Hartman, a student at the University of Pennsylvania, was studying for an exam, alone in the lounge area of one of the dormitories. Between 12:30 A.M. and 1:00 A.M., appellant Darryl Duncan (who was not enrolled at the University) entered the lounge and spoke with Miss Hartman about using a

[ 239 Pa. Super. Page 542]

    hot plate which was in the lounge area. Miss Hartman instructed appellant in the use of the hot plate, whereupon appellant boiled some water and left the lounge. Miss Hartman continued studying for her exam until she fell asleep shortly before 3:30 A.M. When she awoke a few minutes later, appellant was on a hassock in front of her, with his face in close proximity to her face. Appellant then requested a favor of Miss Hartman, saying, "I never ate a pussy before." Miss Hartman asked appellant to leave, but appellant continued his entreaties. In all, before leaving, appellant made his request "three or four times," and Miss Hartman asked appellant as many times to leave. "Upset" about the incident, and becoming increasingly concerned because she knew that appellant was not a resident of that dormitory, at approximately 6:00 A.M., Miss Hartman reported the incident to her resident adviser. Appellant was apprehended in the building and charged with criminal solicitation, criminal trespass, and possession of marijuana.

On May 16, 1974, appellant appeared with counsel at a summary proceeding in Philadelphia Municipal Court, at which time the above charges were dismissed and appellant was convicted of harassment. At a trial on October 8, 1974 in Common Pleas Court before a judge sitting without a jury, appellant was again found guilty of harassment, and was sentenced to pay a fine of one hundred ($100.00) dollars, or, failing to pay by November 8, 1974, serve thirty days in the Philadelphia County Prison. Appeal was taken to our Court from the judgment of sentence.

Appellant first argues that the evidence presented was insufficient to sustain his conviction of harassment; specifically, that no evidence was presented to show that he had committed acts or had engaged in a course of conduct proscribed by the harassment statute, and that no evidence was presented to show that he possessed the requisite criminal intent. The statute in question, 18 Pa.C.S. § 2709, provides as follows:

[ 239 Pa. Super. Page 543]

"A person commits a summary offense when, with intent to harass, annoy or alarm another person:

(3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."

Appellant contends that words alone cannot constitute a course of conduct or repeatedly-committed acts within the meaning of the statute. We believe that speaking can constitute a course of conduct within the meaning of the statute, given the proper circumstances, and we find that the proper circumstances exist in the case before us. Testimony of the prosecutrix, Miss Deborah Hartman, established that appellant approached her as she dozed on a couch in a dormitory lounge area. With his face in close proximity to hers, appellant made repeated requests that Miss Hartman permit him to engage in an illegal sexual act with her. Although Miss Hartman asked appellant to leave, he persisted in his requests. Not until he had made three or four requests [ILLEGIBLE WORD] asked to leave three or four times did appellant finally desist. Miss Hartman made it clear from the beginning that she wanted to be left alone -- that she was unfavorably disposed toward appellant's proposition. Had appellant accepted the initial rebuttal and not persisted in his efforts to persuade the young lady, clearly no crime would have been committed: § 2709 requires repetition of the offensive conduct. Miss Hartman's replies made it clear, or should have made it clear to a reasonable person, that continued entreaties would be offensive to her. The lower court was justified in finding that appellant had engaged in a course of conduct which alarmed or seriously annoyed another person. Appellant argues that no evidence was presented to show that he possessed the requisite intent to harass. Our courts have often found that a defendant's intent to commit a criminal act may

[ 239 Pa. Super. Page 544]

    be inferred from his words or actions when viewed in the light of all the attendant circumstances. See Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970); Commonwealth v. Tyrell, 405 Pa. 210, 174 A.2d 852 (1961); and Commonwealth v. White, 229 Pa. Superior Ct. 280, 323 A.2d 757 (1974). The lower court was also certainly justified in inferring from appellant's repeated requests and rebuttals that appellant was acting deliberately and with the intention of annoying the prosecutrix.

Appellant next argues that his conviction under the harassment statute was based solely on a verbal communication and therefore was in violation of his rights under the First Amendment to the United States Constitution. We find this argument unpersuasive. In Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), the Supreme Court stated:

"[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

That obscenity is not within the area of constitutionally-protected speech was made clear by the Court in Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957): "All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial

[ 239 Pa. Super. Page 545]

    ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." This position has been maintained in two recent cases, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L.Ed.2d 446 (1973), and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed. 2d 419 (1973), the former involving obscene movies, Miller dealing with a California statute regulating the distribution of pornography through the mail. Appellant relies in his brief on Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed. 2d 284 (1971), in which the Supreme Court reversed the conviction of a petitioner who had been convicted under a California statute of "maliciously and wilfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . ." The petitioner in Cohen had been arrested for wearing, in a courtroom corridor, a jacket with the words, "F--- the draft." Cohen is distinguishable from the case before us in several respects, most obviously in that constitutionally protected political comment, however distastefully presented, was being made by the petitioner in that case. We find that appellant's lewd and non-political suggestions do not, in the case before us, have the protection of the First Amendment.

In recent years, our courts have given increased recognition to the right of individuals to be free of unreasonable intrusions on privacy. In 1949, the Supreme Court upheld an ordinance prohibiting the operation from vehicles in the streets of sound amplifiers or other instruments emitting "loud and raucous noises," saying: "The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech

[ 239 Pa. Super. Page 546]

    in disregard of the rights of others would be harsh and arbitrary in itself." Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949). In Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), the Supreme Court upheld a municipal ordinance prohibiting solicitors and peddlers from visiting private residences without the consent of the occupants, and in Rowan v. United States Post Office, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed. 2d 736 (1970), the Court upheld a federal statute, 39 USC § 4009, which authorized mail recipients to require any mailer to remove the recipient's name from the mailer's lists and discontinue mailing to that person's address. In both cases, the Court balanced the householder's right to privacy with the right of others to communicate, finding in Rowan that "no one has a right to press even 'good' ideas on an unwilling recipient." 397 U.S. at 738, 90 S.Ct. at 1491. Continuing in this line, the Court decided Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584, in 1972. In Colten, a friend of the petitioner had been stopped by a police officer for a traffic violation. In spite of several requests by the arresting officer that petitioner leave the area, petitioner refused, and was arrested for violating the state's disorderly conduct statute. The Supreme Court upheld the conviction, citing the Kentucky appellate court decision which said that the petitioner had not been undertaking to exercise any constitutionally protected freedom, but rather appeared to have as his purpose causing inconvenience and annoyance. Colten is particularly relevant to the case before us, in that it involved a disorderly conduct statute - a statute that differs from harassment statutes of the type involved in the case before us only in its proscription of conduct which constitutes a nuisance to the general public rather than to a particular individual.

With the enactment of 18 Pa.C.S. § 2709, our legislature has sought to prohibit such conduct, including speech, which is not ...


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