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Commonwealth v. Forrey

Superior Court of Pennsylvania

January 16, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ROBERT STEPHEN FORREY, Appellant

Submitted October 29, 2014

Appeal from the Judgment of Sentence of the Court of Common Pleas, Adams County, Criminal Division, No: CP-01-CR-0000544-2013. Before CAMPBELL, J.

Lloyd E. Long, III, Philadelphia, for appellant.

Adam J. Barr, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

BEFORE: BOWES, OTT, and STABILE, JJ.

OPINION

Page 896

STABILE, J.

Appellant, Robert Stephen Forrey, appeals the judgment of sentence entered for his convictions of scattering rubbish and disorderly conduct (unreasonable noise). We agree with Appellant that the evidence of unreasonable noise is insufficient to sustain his conviction of disorderly conduct. Accordingly, we affirm in part and reverse in part.

On the evening of June 3, 2013, two Pennsylvania State Police troopers were patrolling U.S. Route 15 in Adams County.[1] At about 11:45 p.m., they observed a red Dodge pickup truck stopped on the shoulder. The truck's lights were off, and it appeared to be disabled. The troopers parked behind the truck, activated the police car's emergency lights for safety, and got out to investigate.

After the troopers exited their vehicle to speak to Appellant, they discovered a large debris trail extending from the truck about 25' to 75' down an embankment and into a wooded area. The debris included glass, papers, mail, TVs, VCRs, large boxes, trash bags with clothes, clocks, what appeared

Page 897

to be a stereo cabinet, and a United States flag.

Appellant gave the troopers his name and address, but refused to answer other questions. Instead, he began to scream and curse. He repeatedly walked to the roadway, toward oncoming traffic. One of the troopers placed Appellant in handcuffs to prevent him from running away. During the encounter, Appellant yelled at the troopers, " all you fucking cops are communists just like Obama," " [t]his fucking country sucks," and " [y]ou better watch your back." N.T. Summary Trial, 11/12/13, at 6-7. Appellant was yelling loud enough that one of the troopers could hear him ten feet down the embankment. At some point, officers from a local police department arrived to assist the troopers.

The troopers arrested Appellant and charged him with misdemeanor desecrating a flag of the United States, summary scattering rubbish, and summary disorderly conduct by making unreasonable noise.[2] Appellant could not make the $1,500.00 monetary bail, and spent eight days in the county prison until he negotiated a reduction in bail. Appellant requested dismissal of the flag-desecration charge, challenging the constitutionality of the statute. In response, the Commonwealth requested the charge be withdrawn, or for the trial court to enter a nolle prosequi (the record is unclear). The trial court dismissed the charge pretrial, found Appellant guilty of the two ...


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