Commonwealth v. Mochan

Superior Court of Pennsylvania · 1955 · Criminal Law

Criminal LawCommon law crimesPublic moralityObscene communicationscommon law misdemeanorpublic moralityobscenitytelephone harassment

Facts

Over more than one month in early 1953, the defendant repeatedly telephoned Louise Zivkovich, a stranger to him and a married woman of high character, sometimes as often as three times a week and at any hour of the day or night. In those calls he used obscene, lewd, and filthy language, suggested intercourse, and on a number of occasions talked of sodomy in explicit terms. The calls came over a four-party line, and at least two other members of Mrs. Zivkovich's household heard some of the language. With police and telephone company cooperation, defendant was located and arrested, and Mrs. Zivkovich later identified his voice in a police-arranged telephone conversation.

Issue

Whether repeated obscene and lewd telephone calls, concededly not made criminal by statute, may nonetheless be prosecuted in Pennsylvania as a common law misdemeanor. More specifically, the question was whether defendant's conduct was the type of act that injuriously affected public morality or openly outraged decency so as to be indictable at common law.

Rule

In Pennsylvania, the common law of England as to crimes remains in force unless abrogated by statute. A person may be punished for a common law misdemeanor, even without an exact precedent, for any act that directly injures or tends to injure the public to such an extent as to require state intervention, including acts that injuriously affect public morality, openly outrage decency, or scandalously affect the morals or health of the community.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Pittsburgh, Nolan Pierce repeatedly sends late-night voice messages to Dana Kelm, a stranger, over six weeks. In the messages he uses explicit sexual obscenities and graphic references to perverse acts; no Pennsylvania statute specifically covers his conduct.

If Nolan is charged in Pennsylvania with a common law misdemeanor, what is the strongest argument for upholding the charge?

Explanation. The majority held that in Pennsylvania common law crimes remain unless abrogated by statute, and an exact precedent is unnecessary. A common law misdemeanor includes acts that directly injure or tend to injure the public, including conduct that injuriously affects public morality or openly outrages decency. Repeated obscene sexual communications can fall within that rule.