Appeal from the Judgment of Sentence March 9, 2012 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002849-2011
BEFORE: PANELLA, J., OTT, J., and STRASSBURGER, J. [*]
Collette Champagne McCoy appeals from the judgment of sentence entered against her in the Court of Common Pleas of Berks County following her conviction on charges of disorderly conduct, disrupting a procession, and conspiracy to disrupt a procession. McCoy was sentenced to an aggregate term of 2 years' probation and 200 hours of community service. On appeal, McCoy claims 18 Pa.C.S. § 5508 is unconstitutionally vague, facially overbroad and unconstitutional as applied, there was insufficient evidence to support the convictions, and her sentence was manifestly excessive. After a thorough review of the submissions by the parties, relevant law, and the official record, we affirm in part, vacate in part, and remand for resentencing.
On June 30, 2011, a 40-50 car funeral procession for Sheriff's Deputy Kyle Pagerly, who had been killed in the line of duty, was slowly making its way through Reading. N.T. Trial, 2/13/12, at 19, 9. The procession consisted of fire, police, military and civilian vehicles. Id. at 10. The emergency lights were activated on the official vehicles, but not the sirens. Id. It took between five to ten minutes for the entire procession to pass. Id. at 45. There were people lined up along the route. Id. at 12. Some were crying, some had hands over their hearts, some bowed their heads. Id. at 11. At approximately 3:45 p.m., as the procession passed along the 300 block of Penn Street, police officers in the procession saw McCoy and her co-defendant, Walter Javan Pruitt, walking along the street. Affidavit of Probable Cause, N.T. Trial at 12. McCoy crossed the street, walking through the procession. Id. at 12-13. As the two walked in the street, feet away from the cars in the procession, they shouted, "Fuck the police, " multiple times. Id. at 13. First, one would shout it and then the other would respond. Id. at 50. As McCoy walked down the street, shouting, she was also pumping her fist and laughing. Id. at 50-51. As Pruitt walked down the street, he was swinging a red and white Sneaker Villa bag over his head. Id. at 50. As the procession passed, Pruitt also crossed the street between the cars. Id. at 15-16.
As McCoy and Pruitt went down the street, next to the procession, waving the bag, pumping fists, and shouting, observers of the procession were reacting with disgust. Id. at 37, 52. Because the police did not know what Pruitt, especially, was going to do next, id. at 24, 32, 34, and due to the reactions of the observers, several police cars left the procession to respond to McCoy and Pruitt. Id. at 16, 36-37, 52. One police officer had to push through an individual to approach Pruitt, id. at 24, and observers cheered the police for stopping McCoy and Pruitt. Id. at 52. The police stopped McCoy and Pruitt and arrested them for interrupting a procession and disorderly conduct. Id. at 17.
McCoy was convicted of violating 18 Pa.C.S. §§ 5505(a)(3) and 5508. In relevant part, Section 5503 states:
(a) Offense defined.--A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(3) uses obscene language, or makes an obscene gesture[.]
18 Pa.C.S. § 5503(a)(3). Section 5508 states, in toto:
A person commits a misdemeanor of the third degree if, with intent to prevent or disrupt a lawful meeting, procession or gathering, he disturbs or interrupts it.
18 Pa.C.S. § 5508.
McCoy's first argument is that Section 5508 is unconstitutionally vague, facially overbroad, and unconstitutional as applied because the mens rea and actus reus are too ambiguous and subsequently criminalizes a substantial amount of constitutionally protected speech.
[D]uly enacted legislation is presumed valid and unless it clearly and plainly violates the Constitution, it will not be declared unconstitutional. Accordingly, the party challenging the constitutionality of a statute bears a heavy burden of persuasion.
Commonwealth v. Davidson, 938 A.2d 198, 207 (Pa. 2007) (internal citations omitted).
Under the void-for-vagueness standard, a statute will only be found unconstitutional if the statute is "so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. However, a statute will pass a vagueness constitutional challenge if the statute "define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."
Id. (internal citations omitted).
McCoy's argument is premised on the assertion that the statutory language barring the intent to "prevent or disrupt" a procession and a resulting "disturbance or interruption" of the procession does not sufficiently inform a person what he or she may not do. McCoy claims that such broad language "encourages arbitrary and erratic arrests and convictions."
McCoy, however, has not explained or given examples of, what behavior would lead to the arbitrary enforcement of the statute. Given that it is McCoy's "heavy burden of persuasion", Davidson, supra, to demonstrate how the statute is impermissibly vague, we do not believe the unsupported allegations suffice. Moreover, we agree with the trial court's statement in its Pa.R.A.P. 1925(a) opinion, "A citizen is on notice that he or she may not disrupt a lawful meeting, procession or gathering by disturbing or interrupting it. An ordinary person would understand what conduct is prohibited and would have no reason to guess at the meaning of the word "disrupt."" See Trial Court Opinion at 11. The words used by the legislature are plain in their ordinary meaning and we do not believe they are unconstitutionally vague.
Next, McCoy claims the statute is facially overbroad. A statute is facially overbroad,
only if it punishes lawful constitutionally protected activity as well as illegal activity. Thus, in determining whether a statute is unconstitutional due to overbreadth, a "court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." The "overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."
Commonwealth v. Davidson, 938 A.2d at 208 (internal citations omitted).
Additionally, "the United States Supreme Court has described application of the overbreadth doctrine as 'strong medicine' which is 'employed sparingly and only as a last resort.'" Id. (citation omitted).
Initially, when determining whether a substantial amount of constitutionally protected activity is affected, we recognize "freedom of speech is subject to numerous constraints that render it a less-than absolute right in practice. The rights of others sometimes clash with and restrict one's freedom of speech. Just as one does not have the right to shout 'fire' in a crowded theater, " so too, the Commonwealth has the authority to regulate ...