J-S18003-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JADIN BLIESATH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1491 MDA 2021

Appeal from the Judgment of Sentence Entered October 21, 2021

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0001889-2020

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: AUGUST 5, 2022

Appellant, Jadin Bliesath, appeals from the judgment of sentence of 90 

days’ probation, imposed after he was convicted, following a non-jury trial, of 

disorderly conduct under 18 Pa.C.S. § 5503(a)(3). Appellant challenges the 

sufficiency of the evidence to support his conviction, as well as the court’s 

determination that he was competent to stand trial. After careful review, we 

reverse Appellant’s conviction and vacate his judgment of sentence.

The trial court briefly summarized the evidence presented at Appellant’s 

trial, as follows:

The Commonwealth presented evidence that [Appellant] was seen 

by [City of Reading Police] Officer [Sean] Driscoll yelling at 

random people in the area of 6th and Penn Streets in the City of 

Reading. After being asked to stop by the [o]fficer, and failing to 

do so, the [o]fficer got out of the vehicle and approached 

[Appellant] to again ask him to stop and ask[] for his 

identification. When the [o]fficer was writing down [Appellant’s] 

information, the [o]fficer observed [Appellant] yell racial slurs and 
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threats at two males walking down the street while the [o]fficer 

was standing right in front of [Appellant]. 

Trial Court Opinion (TCO), 2/15/22, at 4. Specifically, Officer Driscoll stated 

that Appellant “yelled at the people to the southwest corner[, ‘]shut up you 

niggers[,’] and then he yelled again[, ‘]shut up I’m going to kill you because 

you are niggers[,’] and then he shouted[, ‘]I have two guns on me.[’]” N.T. 

Trial, 10/21/21, at 16. 

Based on these facts, Appellant was charged with disorderly conduct 

under 18 Pa.C.S. § 5503(a)(3). That provision reads:

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).

Appellant proceeded to a non-jury trial on October 21, 2021. At the 

outset thereof, Appellant’s counsel indicated to the court that, “based on the 

numerous conversations [she had] had with [Appellant,]” she believed that he 

was “not competent to proceed to trial.” N.T. Trial at 3. Counsel explained 

that she had not had any “rational discussion about the facts” with Appellant, 

and he also refused to get a mental health evaluation. Id. at 4. The court 

then conducted a colloquy of Appellant. Id. at 6-11. Although the court did 

not specifically state that it found Appellant competent to proceed, the court 

began Appellant’s non-jury trial, thereby indicating it made such a finding. 

Id. at 12. 
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At the conclusion of trial, the court convicted Appellant of disorderly 

conduct and immediately sentenced him to 90 days’ probation. Id. at 34. 

The court also directed Appellant to undergo a mental health evaluation. Id. 

Appellant filed a timely post-sentence motion, which the court denied. He 

then filed a timely notice of appeal.

1

 Appellant also timely complied with the 

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. The court filed its Rule 1925(a) opinion on February 

15, 2022. Herein, Appellant states two issues for our review:

[I.] Whether the Commonwealth failed to present sufficient 

evidence that [Appellant] used obscene language to support a 

guilty verdict for [d]isorderly [c]onduct.

[II.] Whether the trial court’s competency determination was 

based ... [on] a deficient colloquy and the court erred in 

determining that [Appellant] was competent to proceed to trial.

Appellant’s Brief at 4.

In assessing Appellant’s first issue, we apply the following standard of 

review:

When reviewing a claim that the trial court erred in determining 

the evidence was sufficient to prove an offense, an appellate court 

must assess the evidence and all reasonable inferences from that 

evidence most favorably to the verdict winner. Commonwealth

v. Whitacre, 878 A.2d 96, 99 (Pa. Super.), appeal denied, ... 892 

A.2d 823 ([Pa.] 2005). As long as the evidence and inferences 

provide sufficient information to establish proof beyond a 

reasonable doubt, the evidence is sufficient. Id. Further, the 

Commonwealth can meet its burden of reasonable doubt “by 

means of wholly circumstantial evidence.” Id.

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1 On December 14, 2021, Appellant filed a motion to stay his sentence pending 

our decision in this appeal. The court granted his motion that same day. 
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Commonwealth v. Pennix, 176 A.3d 340, 342–43 (Pa. Super. 2017).

Instantly, Appellant contends that his “conviction for [d]isorderly 

[c]onduct is improper[,] as the Commonwealth failed to sufficiently establish 

that [Appellant] used obscene language.” Appellant’s Brief at 15. He insists 

that “[t]he Commonwealth established that [he] shouted and used highly 

offensive language, but nothing that is considered obscene under the law.” 

Id. 

After careful consideration, we agree. In Pennix, the appellant

attempted to enter the Family Court building on Ross Street, but 

was detained at the metal detector when a scan of her book bag 

revealed the presence of a knife and razor blades. [The appellant] 

was asked to remove the items from her bag, but she had difficulty 

locating them and became argumentative with the deputy. [The 

appellant] continued to get more and more agitated, and was 

heard screaming “Fuck you I ain’t got time for this,” “Fuck you 

police” and “I don’t got time for you fucking police.” She was 

subsequently instructed to leave the building, but she refused and 

continued to scream and be disruptive until she was escorted from 

the building by Sheriff’s deputies.

Pennix, 176 A.3d at 341-42 (citations to the record omitted).

Pennix was ultimately convicted of, inter alia, disorderly conduct under 

section 5503(a)(3). In assessing her argument that the Commonwealth’s 

evidence was insufficient to prove she used obscene language or an obscene 

gesture, we began by recognizing:

It is well-settled that “the offense of disorderly conduct is not 

intended as a catchall for every act which annoys or disturbs 

people; it is not to be used as a dragnet for all the irritations which 

breed in the ferment of a community.” Commonwealth v.

Mauz, 122 A.3d 1039, 1041 (Pa. Super. 2015) (citations 

omitted). The Commonwealth has cited this Court’s decision 
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in Commonwealth v. McCoy, 69 A.3d 658, 665 (Pa. Super. 

2013), in which we held that there was insufficient evidence to 

support a defendant’s conviction of disorderly conduct when the 

defendant chanted “fuck the police” during a funeral procession of 

a fallen police officer. We concluded that the defendant’s words 

were not obscene under Section 5503(a)(3) because “there was 

no evidence that the chant was intended to appeal to anyone’s 

prurient interest nor did it describe, in a patently offensive way, 

sexual conduct.” Id. at 666.

Likewise, in Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super. 

2000), we reversed an appellant’s conviction of disorderly conduct 

under Section 5503(a)(3) for profanely responding “fuck you, 

asshole” to a street department employee and accompanying the 

response with the extension of his middle finger. We explained:

The first inquiry is what is the definition of “obscene” for 

purposes of 18 Pa.C.S. § 5503(a)(3). This Court has held 

that, for purposes of a disorderly conduct statute prohibiting 

the use of obscene language, language is obscene if it meets 

the test set forth in Miller v. California, 413 U.S. 15 ...

(1973):

(a) whether “the average person, applying 

contemporary community standards” would find that 

the work, taken as a whole, appeals to the prurient 

interest, (b) whether the work depicts or describes, in 

a patently offensive way, sexual conduct specifically 

defined by the applicable state law, and (c) whether 

the work, taken as a whole, lacks serious literary, 

artistic, political, or scientific value.

Commonwealth v. Bryner, ... 652 A.2d 909, 912 ([Pa. Super.] 

1995). In Bryner, our Court held that the phrase “go to hell 

Betsy” was not obscene. Thus, we use the Bryner test to 

determine whether words and gestures are obscene for purposes 

of 18 Pa.C.S. § 5503(a)(3).

Id. at 345.

Applying this law to the facts of Pennix’s case, we explained:

Our next inquiry is whether the “F-word” and the gesture are 

obscene within the meaning of 18 Pa.C.S. § 5503(a)(3)....
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Our Supreme Court addressed Section 5503(a)(1) (and not 

Section 5503(a)(3)) recently in Commonwealth v. Hock, ... 728 

A.2d 943 ([Pa.] 1999). There, a person directed a profane 

remark, “F- you, asshole,” at a police officer. The Court concluded 

that the utterance was not sufficient to support a conviction of 

disorderly conduct under Section 5503(a)(1) because the 

utterance did not amount to “fighting words” under 18 Pa.C.S. § 

5503(a)(1). The Court concluded that, under the facts of the case, 

Hock’s comment did not risk an immediate breach of the 

peace. Hock, 728 A.2d at 946....

While Justice Castille dissented in Hock, he commented that:

[The a]ppellant’s words, while certainly obscene according 

to common parlance, do not fit the definition of “obscene” 

under Section 5503(a)(3) of the Disorderly Conduct 

Statute.... [L]anguage is obscene if it meets the test set 

forth in Miller....

Id. at 947, n.1.

Kelly, 758 A.2d at 1286–87.

Here, as in Kelly, there is insufficient evidence to support [the 

a]ppellant’s disorderly conduct conviction where her words “were 

angry words ... having nothing to do with sex.” Kelly, 758 A.2d 

at 1288. Our conclusion in Kelly also applies here:

[W]hile the words and conduct used by [the a]ppellant were 

disrespectful, insulting and offensive, they were, in the 

circumstances of this case, not “obscene” within the 

meaning of Section 5503(a)(3). Further, the record fails to 

support a conclusion that [the a]ppellant’s comment risked 

an immediate breech [sic] of the public peace.

Id. (citation omitted).

Pennix, 176 A.3d at 345–46.

In the present case, Appellant argues:

Here, testimony presented at trial establishes that [Appellant] 

shouted[,] “shut up you niggers[,]” and[,] “shut up I’m going to 

kill you because you are niggers[,]” and that he had two guns. 

[Appellant] denied saying any of this in his testimony, but whether 

he did or not is irrelevant. Like Bryner[] and its progeny..., 
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nothing that [Appellant] said could possibly be construed as 

sexual or appealing to the prurient interests. The language used 

is, of course, vulgar and highly offensive, but, as the dissent in ... 

Hock put it, the language may be “obscene according to common 

parlance” but it does “not fit the definition of obscene under 

section 5503(a)(3).” ... Hock, 728 A.2d at 947 (Castile, J. 

dissenting); see Kelly, 758 A.2d at 1287.

[Appellant] was charged specifically under the section of 

disorderly conduct pertaining to obscene language. Despite the 

testimony regarding the volume of his voice[,] he was not charged 

with making unreasonable noise under 18 Pa.C.S.[] § 5503(a)(2). 

To the extent that his words could be considered so offensive as 

to become fighting words, that would fit under 18 Pa.C.S.[] § 

5503(a)(1) for fighting or tumultuous behavior. See McCoy, 69 

A.3d at 666. Instead, the evidence presented must be sufficient 

to establish that his language was obscene as defined in the law. 

[Appellant’s] language cannot reasonably be construed as sexual 

in nature or appealing to the prurient interests and thus his 

conviction under the charged section for disorderly conduct must 

fail. 

Appellant’s Brief at 17-18 (citation to the record omitted).

Notably, the Commonwealth agrees with Appellant, conceding that,

[i]n this case, [Appellant’s] words[,] while obscene under the 

common parlance, do not fit the statutory definition of obscene 

from the case law cited above. There is nothing about his use of 

the derogatory words ‘nigger’ which appeals to the prurient 

interest or depicts sexual conduct. Additionally, while 

[Appellant’s] words likely would have qualified to sufficiently fit 

the crime under subsections (a) as fighting words, or subsection 

(b) as unreasonable noise[, it] is unfortunately not up for debate 

as they were not charged. The Commonwealth is tasked with 

proving the case which it has charged, and that is a result that did 

not happen here.

Commonwealth’s Brief at 7.

We appreciate the Commonwealth’s candor with this Court, and we

concur with the parties that Appellant’s conviction must be reversed. Although 

the trial court found that “[t]he racial slurs” used by Appellant “were clearly 
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[‘]obscene language[’] within [the meaning of] the statute[,]” the court 

offered no legal authority to support that conclusion. TCO at 6. The case law 

discussed supra interprets ‘obscene language’ in the statute as meaning 

something that describes a sexual act or appeals to one’s prurient interest. 

Here, the racial slurs spoken by Appellant, although deplorable and highly 

offensive, do not constitute ‘obscene language’ under section 5503(a)(3). 

Accordingly, we reverse his conviction for disorderly conduct and vacate his 

judgment of sentence. Given this disposition, we need not address Appellant’s 

second issue challenging the court’s finding him competent to stand trial. 

Conviction reversed. Judgment of sentence vacated. 

Judge McLaughlin joins this memorandum.

Judge McCaffery concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/05/2022