Com. v. Cook

Citation468 Pa. 249,361 A.2d 274
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Queen COOK, a/k/a Queene Cook, and Wilbert James Williams. COMMONWEALTH of Pennsylvania, Appellant, v. Darryl FULTON.
Decision Date06 July 1976
CourtUnited States State Supreme Court of Pennsylvania

Page 274

361 A.2d 274
468 Pa. 249
COMMONWEALTH of Pennsylvania, Appellant,
v.
Queen COOK, a/k/a Queene Cook, and Wilbert James Williams.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Darryl FULTON.
Supreme Court of Pennsylvania.
Argued Sept. 22, 1975.
Decided July 6, 1976.

Page 275

[468 Pa. 250] John J. Hickton, Dist. Atty., Robert L. Eberhardt, Louis R. Paulick, Asst. Dist. Attys., Pittsburgh, for appellant.

John J. Dean, John H. Corbett, Pittsburgh, for appellee.

Frederick R. Nene, Asst. Atty. Gen., Pittsburgh, for amicus curiae.

[468 Pa. 251] Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX, and MANDERINO, JJ.

OPINION

O'BRIEN, Justice.

These appeals arise from an order of the Court of Common Pleas of Allegheny County, Criminal Division, which declared § 5502 of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 C.P.S.A. § 5502, effective June 6, 1973, unconstitutional. The Commonwealth appealed the decision to the Superior Court and the matter was subsequently transferred to this court for decision. 1

The facts surrounding this appeal are as follows. On September 14, 1973, appellees, Queen Cook, Wilbert James Williams and Darryl Fulton, were arrested following a disturbance in Wilkinsburg Borough. As a result of the disturbance appellees were indicted on the following four counts: (1) Riot; (2) Resisting arrest or other law enforcement; (3) Failure of disorderly persons to disperse upon official order; and (4) Obstructing administration of law or other governmental function.

On January 23, 1974, the court below granted appellees' motion to quash as to count three of the bill of indictment, the failure of disorderly persons to disperse upon official order. The court below then sustained a demurrer to all the remaining counts as to appellee Williams, and to the

Page 276

second and fourth counts as to appellees Fulton and Cook. At the end of the trial, the court below found Fulton and Cook not guilty of the remaining riot count of the indictment. The Commonwealth filed an appeal to Superior Court, contesting the quashing of [468 Pa. 252] the indictment and the declaring of § 5502 as unconstitutional. The Superior Court certified the case to this court for resolution of the constitutional issue.

The Commonwealth argues that the court below erred in declaring § 5502 of the Crimes Code unconstitutional on the grounds of vagueness. The record in the instant case reveals that the statute was declared unconstitutional pursuant to an Oral motion to quash the indictment and, therefore, no facts appear on the record concerning the alleged violation of § 5502 of the Crimes Code. 2 Section 5502 of the Crimes Code reads:

'Where three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor of the second degree.'

In § 5502, an actor is in violation of the section if, when three or more persons are engaged in 'disorderly conduct,' 3 which may cause, or may reasonably be expected to cause, 'substantial harm or serious inconvenience, annoyance or alarm,' a police officer or other public official acting within the scope of his authority orders the participant and others in the area to disperse and such actor refuses to obey such order, he or she is guilty of a misdemeanor of the second degree.

The gravaman of the section is the failure to obey an order by a police officer or other public official to disperse[468 Pa. 253] when three or more persons are engaging in a 'course of disorderly conduct.'

In Commonwealth v. Heinbaugh, --- Pa. ---, 354 A.2d 244 (1976), in deciding the constitutionality of Pennsylvania's 'open lewdness statute,' 4 the court, in articulating the the standard of review for constitutional attacks concerning vagueness, stated:

'. . . Absent the assertion of an infringement of First Amendment freedoms, the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged. As the Supreme Court of the United States has but recently put it,

'It is well established that vagueness challenges to statute which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. (citation omitted)' United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 714, 42 L.Ed.2d 706, 713 (1975).

'See also Comment, Recent Supreme Court Developments of the Vagueness Doctrine, 7 Conn.L.Rev. 94, 100 (1974); Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).'

This record presents no facts concerning appellees' alleged violation of § 5502, and the colloquy preceding the trial court's ruling fails to reveal the grounds for appellees' claim of 'vagueness,.'

Page 277

Therefore, no First Amendment claims having been articulated by either the court below or the appellees, we cannot decide the constitutionality of § 5502 in a factual vacuum and, therefore, we vacate the order of the court below and remand the case for further proceedings consistent with this opinion.

[468 Pa. 254] Order of the Court of Common Pleas of Allegheny County, Criminal Division, is vacated. Case remanded for proceedings consistent with this opinion.

POMEROY, J., joins in this Opinion and filed a Concurring Opinion in which NIX, J., joined.

ROBERTS, J., filed a Dissenting Opinion in which JONES, C.J., joined.

MANDERINO, J., filed a Dissenting Opinion.

POMEROY, Justice (concurring):

I join in the Opinion of Mr. Justice O'Brien and in the decision to vacate the ruling of the trial judge and to remand the case for further proceedings. I add this separate opinion only to explicate more fully why I feel such a remand is required.

Appellees were indicted, Inter alia, for failing to disperse upon official order in violation of Section 5502 of the Pennsylvania Crimes Code, 18 Pa.C.S. § 5502. That statute authorizes the police to issue a dispersal order '(w)here three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm . . .' 1 Prior to [468 Pa. 255] trial, appellees made an oral motion to quash the indictment on the ground that § 5502 is facially unconstitutional. On the basis of a short oral argument and without the benefit of any...

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9 cases
  • Com. v. DeFrancesco
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 5, 1978
    ...... Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. . . . The factfinder is free to believe all, part, or none of the evidence. . . . " (Citations omitted.) .         In Commonwealth v. Cook, 468 Pa. 249, 361 A.2d 274 (1976), we delineated the necessary elements of § 5502 of the Crimes Code: . "In § 5502, an actor is in violation of the section if, when three or more persons are engaged in 'disorderly conduct,' which may cause, or may reasonably be expected to cause, 'substantial ......
  • JLN v. State
    • United States
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    • October 25, 2002
    ......Rice, 41 N.Y.2d 1018, 395 N.Y.S.2d 626, 363 N.E.2d 1371 (1977) ; Commonwealth v. Cook, 468 Pa. 249, 361 A.2d 274 (1976) . Because Woodruff has not shown himself to be entitled to raise the question, this court will `leave the question ......
  • Gavin v. State
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    • September 26, 2003
    ......The State also presented evidence indicating that in 1982, Gavin had been convicted of murder in Cook County, Illinois. Gavin had served approximately 17 years of a 34-year sentence and had been released on parole only a short time before Clayton's ......
  • State v. Woodruff, 3 Div. 932
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    • October 9, 1984
    ......Rice, 41 N.Y.2d 1018, 395 N.Y.S.2d 626, 363 N.E.2d 1371 (1977); Commonwealth v. Cook, 468 Pa. 249, 361 A.2d 274 (1976). Because Woodruff has not shown himself to be entitled to raise the question, this court will "leave the question ......
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