No. 1165 October Term, 1977, Appeal from the Judgment of the Court of Common Pleas of Bucks County, Criminal Division #1458 of 1976.
Charles J. King, Jr., Norristown, for appellant.
Stephen B. Harris, First Assistant District Attorney, Warrington, with him Kenneth G. Biehn, District Attorney, Doylestown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., concurs in the result. Watkins, President Judge, notes dissent.
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Appellant contends that the Commonwealth did not present sufficient evidence to convict him of disorderly conduct.*fn1 We agree. Therefore, we vacate the judgment of sentence and order appellant discharged.
On October 28, 1976, a Bucks County district justice issued a citation charging appellant with disorderly conduct. The citation alleged that at 7:30 a. m., on October 26, 1976, appellant banged on the roof of a car attempting to pass through a group of picketers. On November 24, 1976, in summary proceedings, a Bucks County district justice found appellant guilty and fined him $100 plus costs. An appeal was filed in the Bucks County Court of Common Pleas on February 4, 1977, appellant was tried before the lower court sitting without a jury.
At trial, Sergeant James McCallister of the Warminster Township Police Department testified that he arrived at the William Tennent Senior High School, located on Centennial Road in Warminster Township, Bucks County, at 6:58 a. m. on October 26, 1976. He observed 50-75 people picketing in
[ 251 Pa. Super. Page 127]
the high school driveway entrance and obstructing vehicular access to the school. The police officer observed three unidentified persons use their fists to bang on cars proceeding into the driveway; he warned two picket captains that further incidents would result in arrests. At 7:30 a. m., a white Chevrolet which had been proceeding north on Centennial Road attempted to turn right into the high school driveway. A mass of picketers crowded in front of the car and stopped it. When the car resumed progress, appellant, standing near the juncture of the curb line of Centennial Road and the high school driveway entrance, banged on the roof of the car with his fists. The officer then arrested appellant for disorderly conduct.
On cross-examination, Sergeant McCallister admitted that the mass of picketers obstructed his view of the car just before it turned into the driveway. Moreover, the officer was about 250 feet away from the site of the incident, and the white Chevrolet came between the officer and appellant and obstructed his view of appellant's location and actions. Consequently, the officer could see only the left side of the car and its roof area and appellant's head, shoulders, and hands. Finally, the officer admitted that he never stopped the white Chevrolet nor did he receive a complaint from its driver.
Sergeant James Miller of the Warminster Township Police Department testified that he drove a police car into the driveway just before the white Chevrolet attempted to enter. He warned a group of picketers, including appellant, to step back towards the curb; everyone complied.
Appellant, a science teacher employed by the Centennial School District, testified that he arrived at the high school at 7:20 a. m., on October 26, 1976, and positioned himself on the south side of the driveway entrance at its intersection with Centennial Road. Appellant stood on the high school driveway, just inside its entrance and a few feet from the curb. After Sergeant Miller asked the group of demonstrators to allow more ...