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COMMONWEALTH PENNSYLVANIA v. D. DOUGLAS ROTH (09/28/87)

filed: September 28, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
D. DOUGLAS ROTH, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. DARRELL BECKER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. DAVID SOUL, APPELLANT



Appeal from the Judgments of Sentence entered January 21, 1986 in the Court of Common Pleas of Allegheny County, Criminal No. CC85-04912, CC85-04911, CC85-4909.

COUNSEL

Nicholas E. Poser, Pittsburgh, for appellants.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Del Sole, Popovich and Montgomery, JJ.

Author: Del Sole

[ 366 Pa. Super. Page 579]

Today we consider an appeal from the judgments of sentence stemming from Appellants' convictions of Disorderly Conduct and Failure of Disorderly Persons to Disperse upon Official Order. By their brief, Appellants raise the following issues:

1. whether there lacked sufficient evidence to support Appellants' convictions;

2. whether Appellants' convictions were in violation of their constitutional rights to First Amendment free speech and assembly;

3. whether ยง 5503(a)(4) of the disorderly conduct statute is unconstitutionally overbroad and vague; and,

4. whether irrelevant and prejudicial evidence was erroneously admitted by the trial court.

Initially, Appellants posit that there lacked sufficient evidence to support these convictions. It is the Commonwealth's position, however, that Appellants have failed to preserve this issue for appellate review insofar as it does not appear in Appellant's post-verdict motions. We have examined Appellants' "Post-trial Motions and Brief in Support Thereof" and find that Appellants have not waived this argument. Appellants' allegations concerning the sufficiency of the evidence are not expressly characterized as such. However, a substantive reading of Appellants' claims leads to the inescapable conclusion that Appellants challenged the sufficiency of the evidence. Thus, we shall address the merits of Appellants' first argument.

In testing the sufficiency of the evidence, we must view the evidence in a light most favorable to the Commonwealth as the verdict winner and draw all reasonable inferences upon which the fact finder could have properly based its verdict. Commonwealth v. Easley, 341 Pa. Super. 381, 384, 491 A.2d 868, 869 (1985). A determination must be made as to whether there exists sufficient evidence to enable the trier of fact to find, beyond a reasonable doubt, every element of the crime for which the appellant has been convicted. Commonwealth v. Stehley, 350 Pa. Super. 311,

[ 366 Pa. Super. Page 580504]

A.2d 854 (1986). Having established our appellate scope of review, we examine the evidence as presented by the record.

A few days prior to Easter Sunday 1985 Appellant-Darrell Becker was observed handing out informational material which stated that the Denomination Ministry Strategy (DMS) and the Network to Save the Mon Valley (Network) were planning to conduct a "scrap iron drive" on the lawn of the Shadyside Presbyterian Church (the Church). (N.T., 25). The "scrap iron drive" was to be held on Easter Sunday and would entail the dumping of scrap metal on the Church's property. An additional flier distributed by DMS and the Network warned: [d]on't make us evict the police on Easter Sunday, it could get messy!" (N.T., 30).

In order to quell the occurrence of this event, elders of the Church met with members of the Network, including Appellants Roth and Becker. At this meeting, the DMS and Network representatives requested that Appellants be permitted to address the Church's congregation on Easter Sunday. The Church elders were told that, if they complied with this and other directives, the war against the Presbyterians would be ended. (N.T., 21). However, if the Church did not agree to these terms, a demonstration would be held which the Church would not like. (N.T., 20).

After deliberating on Appellants' request, a special meeting of the Church's Session (the governing body of the Church) was called during which it was decided that Appellants would be refused permission to address the congregation. (N.T., 21). Following this meeting, a spokesman of the DMS and Network was contacted and informed of the Sessions' resolution. (N.T., 22).

Approximately at 10:00 a.m. on April 7, 1985, Easter Sunday, police were stationed outside of the Church and received a radio call that a caravan of DMS and Network people was proceeding towards the Church. (N.T., 30). The group of 20 to 30 individuals was lead by Appellants. Appellants were carrying a box ...


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