J

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

COMMONWEALTH OF PENNSYLVANIA

v.

ZARINAH MUHAMMAD

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 690 MDA 2022 Appeal from the Judgment of Sentence Entered April 6, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at

No(s): CP

- 40

- SA

- 0000053

- 2022

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E. *

CONCURRING MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 11,

2023

“ Why is nice bad? What kind of a sick society are we living in when nice

is bad?” George Costanza on Seinfeld , ( Larry David and Jerry Seinfeld , Season
3, Episode 7, November 6, 1991).
While “nice” may be elusive at times, our society cannot permit the type
of public display of abusive, disrespectful, insulting and obnoxious behavior
such as Appellant directed toward law enforcement officers in this case.

Ap pellant deserves to be punished for her public use of explicit, offensive
language directed at Luzerne County deputies in the Courthouse annex,
especially in a place where the rule of law is sacrosanct. Because of the

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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wording of the statute in question and relevant case law, however, Appellant
escapes responsibility for her actions.
The deputies were merely enforcing court rules that required individuals
to wear a mask entering the building during the time of the pandemic.
Appellant, who obtained a mask aft er first refusing to wear one, cursed at a
security officer and shouted “fuck you” in a public hallway several times to a
deputy and security officer as she was walking to the elevator.
The Majority correctly follows precedent that the evidence here was

i nsufficient to uphold her conviction for Disorderly Conduct under 18 Pa.C.S. A.
§ 5503(a)(3). Such precedent holds that the offensive language used in this
case does not meet the legal definition of “obscene” in that it does not appeal
to anyone’s prurient interest, nor did it describe in a patently offensive way,
sexual conduct. Thus, I reluctantly agree with the Majority decision to reverse

the conviction.
However, I urge the Pennsylvania Legislature to criminalize, even by
using just a fine as punishment, within of course constitutional standards,
such abusive and belligerent conduct toward law enforcement officers and
other first responders. The blatant offensive behavior and language by
Appellant erodes confidence and respect toward those whose responsib ility it
is to protect the rights and lives of others

. Moreover, s uch behavior and
language in public can incite an escalation of combative language and actions , including violence, by others toward police officers.J

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While the law cannot require people to be “nice”, public displays of
language and conduct such as in this case directed toward those who are
sworn to enforce the law should be prohibited. 1
Thus, I respectfully Concur.

P.J.E. Bender and Judge McLaughlin j oin the Concurring Memorandum

.

_________________ __________ ______ ____ _______

1 In Commonwealth v. Pringle , 450 A.2d 103 (Pa.Super. 1982), this Court affirmed the appellant’s disorderly conduct conviction under subsection (a)(3) after she repeatedly referred to police officer s as “goddamn fucking pigs” when they were attempting to arrest another individual. On appeal, the appellant argued that her words were not “ obscene, ” and thus, were protected under the First Amendment. In rejecting her claim, this Court, although recognizing several United States Supreme Court cases dealing with the use of obscene words, distinguished those cases and held that “one may be convicted of disorderly conduct for engaging in the activity of shouting profane names and insults at police officers on a public street while the officers attempt to carry out their lawful duties.” Pringle , 450 A.2d at 106. However, subsequently, i n Commonwealth v. Bryner , 652 A.2d 909 (Pa.Super. 1995), this Court explained t hat “[a]lthough the Pringle court found that calling police officers ‘goddamn fucking pigs’ was obscene under this state’s disorderly conduct statute, the word ‘obscene’ was not defined. It is important to define the word ‘obscene’ because obscenity is not within the area of constitutionally protected speech under the First Amendment.” Bryner , 6 52 A.2d at 911. This Court in Bryner then noted that, effective December 19, 1990, the legislature defined “obscene” in the Crimes Code as follows: “Obscene.” Any material or performance, if: (1) the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest; (2) the subject matter depicts or describes in a patently offensive way, sexual conduct of a type describ ed in this section; and (3) the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value. 18 Pa.C.S. § 5903 (b) (bold in original).