No. 203 January Term, 1978, Appeal from Judgment of the Superior Court of November 30, 1977 at No. 1234 October Term, 1977, Affirming the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Chester County at No. 0346 of 1976.
William J. Gallagher, West Chester, for appellant.
Joan D. Lasensky, Asst. Dist. Atty., Lee Ruslander, West Chester, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., files a concurring and dissenting opinion. Flaherty, J., files a dissenting opinion.
Appellant, Thomas J. Mastrangelo, was convicted in a non-jury trial of disorderly conduct and obstructing administration of law or other governmental function. Post-verdict motions were denied. Appellant was sentenced to concurrent prison terms of one to twenty-three months. Appellant was also ordered to pay two $500 fines. The Superior Court affirmed per curiam and we granted appellant's petition for allowance of appeal.
This case arises out of incidents that occurred in February, 1976 in the Borough of Phoenixville in Chester County. Appellant had a place of business called the "Blue Jay" on Bridge Street in Phoenixville. When the incidents in question occurred, appellant's car was parked on the street in front of his establishment. The street was metered and was being patrolled by Diane Young, a meter maid employed by the Borough. According to Young's testimony, she was patrolling the street during the morning of February 3. She ticketed appellant's car, which was illegally parked at a meter. Appellant came out of his store and shouted at her, repeatedly calling her a "fucking pig". Ms. Young walked away, but appellant continued shouting at her.
On February 4, Ms. Young was again patrolling Bridge Street. She again observed appellant's car, but did not ticket it because it was legally parked. Nonetheless, appellant came out of his store and followed Ms. Young along Bridge Street, shouting at her and calling her, among other things, a "nigger lover" and a "cocksucker". Ms. Young asked appellant to leave her alone, but he continued to follow her, yelling the entire time, until she left the area. On both occasions, Ms. Young testified that bystanders on the street observed appellant's conduct; none, however, testified in court.
Ms. Young also testified that appellant's actions had frightened her. In fact, Ms. Young did not patrol Bridge Street from February 5 to February 12 because of her fear of appellant.
Appellant first argues that the charge against him for disorderly conduct must be dismissed because the statute under which he was charged is facially invalid on the ground of vagueness or, in the alternative, is invalid as applied to him. Appellant was convicted under the disorderly conduct statute, which provides:
"(a) Offense defined -- A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
"(2) Makes unreasonable noise.
"(b) Grading. -- An offense under this subsection is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense.
"(c) Definition. -- As used in this section, the word "public" means affecting or likely to affect persons in a place to which the public or a substantial group has access ; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public." Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 5503. (Emphasis added.)
In Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), the Court stated:
"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess
at its meaning and differ as to its application, violates the first essential of due process of law."
In reviewing appellant's facial attack on the vagueness of the statute in question, it is important to remember, as we stated in Commonwealth v. Heinbaugh, 467 ...