Commonwealth v. Weiner

326 A.2d 896, 230 Pa. Super. 245, 1974 Pa. Super. LEXIS 2442

• Court: Superior Court of Pennsylvania
• Decided: September 23, 1974
• Docket: Appeal, 1989
• Status: Published

Opinions

Opinion by

Price, J.,

Appellant was arrested for and convicted of disorderly conduct for violation of the proscriptions of Section 406 of the Penal Code.¹ Appellant here contends that his conduct did not constitute the crime of disorderly conduct. Appellant also contends that even if the statute is interpreted to include the conduct involved here, this conduct is constitutionally protected under the First Amendment to the United States Constitution. We do not agree with appellant’s argument and therefore affirm the decision of the lower court.

The facts, as found by the lower court, indicate that several Warminster Township Police officers were dispatched to the scene of the arrest, a residential area, following the receipt of a number of complaints concerning excessive noise. There the officers observed a small group of people carrying signs and picketing while another person spoke over a portable public address system.

The system consisted of a microphone, amplifier, and two speakers mounted back to back on a tripod. The group, representing an organization known as Consumers Education and Protective Association, was demonstrating to protest an alleged failure of a home improvement contractor to complete a job he had been paid to do by one of the organization’s members. The contractor’s home-office was nearby. Although the evidence as to the volume of noise was conflicting,² the hearing judge resolved the issue of credibility in favor of the Commonwealth. Since this finding is supported by the record, it will not be disturbed on appeal. Commonwealth v. Zapata, 447 Pa. 322, 290 A. 2d 114 (1972).

The officers informed appellant that his group could picket peacefully but as several complaints had been made concerning the noise, they must discontinue use of the loud speaker. Appellant told the officers he had received permission from the police chief to use the public address system. The officers warned appellant several times about using the loud speaker and finally told him he would be arrested if he persisted in using it. Appellant again used the speaker declaring his civil rights were being violated, and the police then arrested him.

The Supreme Court of Pennsylvania in Commonwealth v. Greene, 410 Pa. 111, 189 A. 2d 141 (1963), has upheld the constitutionality of the statute in question. The statute does not forbid any specific speech but merely regulates the volume at which speech may be impressed upon the ears of the community. The act is neither overbroad nor vague but is limited and specific in nature. The late Mr. Justice Musmanno, writing for the Majority in the Greene case, ably discussed the statute and set forth the general rules and guidelines for its application. The application in the present case is in no way intended to proscribe constitutionally protected speech. Appellant was free to convey his message in a manner not calculated to disrupt tlie surrounding area.

Disorderly conduct caused by loud, boisterous and unseemly noise may occur (1) when the peaceable residents nearby are disturbed, or (2) where the public peace is disturbed near any public way or property, or (3) where the traveling public is annoyed.³ In the present appeal, we are concerned with the effects of the noise on the “peaceable residents,” and need not consider effects on the traveling public nor disturbances near public property.

The late Mr. Justice Musmanno logically explained that not every noise which annoys the peaceable residents will constitute disorderly conduct. “The public peace is not broken by any activity which properly forms an integral part of the movement of a civilized community, even though it produces noise and annoys residents. A railroad locomotive, with bells ringing and whistles shrieking, thundering over a crossing in a central section of the town, shakes the very ground over which it violently passes, causes buildings to vibrate and people in the immediate vicinity to clap hands over ears and nose to keep out the noises and acrid smoke. This mechanical monster certainly annoys the peaceable residents nearby, but it does not break the public peace, because peace is shattered only by acts of belligerency or disorder.” 410 Pa. at 118, 189 A. 2d at 145. In addition, for noise to constitute disorderly conduct, it must be “unseemly.” “Unseemly” has been defined as “not fitting or proper in respect to the conventional standards of organized society or a legally constituted community.” 410 Pa. at 113, 189 A. 2d at 143.

Here we have the persistent use of a loud speaker in a residential area after the police gave notice that a number of the “peaceable residents” had been disturbed and had complained. This type of conduct is not proper in respect to conventional society and is, therefore, unseemly. Further, the continued use of the loud speaker after the police had repeatedly instructed appellant to stop and warned of the consequences if the order was not complied with amounts to a belligerent act.

Since appellant’s conduct fits the guidelines for the proper application of the statute, we affirm the lower court conviction of disorderly conduct.

Jacobs, J., concurs in the result.

1 Act of March 23, 1970, P. I¿. 207, No. 84, §1, as amended (18 P.S. §4406), which provides in pertinent part: “Whoever wilfully makes or causes to be made any loud, boisterous and unseemly noise or disturbance to the annoyance of the peaceable residents nearby, or near to any public highway, road, street, lane, alley, park, square, or common, whereby the public peace is broken or disturbed or the traveling public annoyed, is guilty of the offense of disorderly conduct. . . .”

2 One police officer testified the noise from the loud speaker could be heard at a distance of 400 to 500 yards. (NT 13). Appellant and his witnesses testified that the loud speaker was “at a very low volume.” (NT 27) See also NT 34, 39, 43, 46.

3 Act of March 23, 1970, P. L. 207, No. 84, §1, as amended (18 P.S. §4406).