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Superior Court of Pennsylvania • 1955

Commonwealth v. Mochan

177 Pa. Super. 454 | 110 A.2d 788 | 1955 Pa. Super. LEXIS 769

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Takeaway

In short, this case upheld a conviction for a nonstatutory common-law misdemeanor by treating persistent obscene telephone harassment as conduct potentially injurious to public morality, while the dissent warned that defining new crimes is the legislature's job.

Background

Michael Mochan repeatedly telephoned Louise Zivkovich, a married woman unknown to him, over more than a month. Calling as often as three times a week and at all hours, he used obscene, lewd, and filthy language, proposed sexual intercourse, and made graphic references to sodomy. Other members of Zivkovich's household heard some calls, and the police ultimately located Mochan through cooperation with the telephone company.

Two indictments charged Mochan with a common-law misdemeanor described as “Immoral Practices and Conduct,” alleging that his calls were intended to corrupt public morals and to harass, embarrass, and defame Zivkovich and her family. After a bench trial, he was convicted and sentenced on both indictments. The court en banc denied his motions in arrest of judgment, and Mochan appealed, arguing that no Pennsylvania statute made his conduct criminal and that it was not a common-law misdemeanor.

Issues

Issue #1

Whether repeated obscene and sexually explicit telephone calls, though not prohibited by statute, could constitute a common-law misdemeanor in Pennsylvania.

Holding

Yes. The calls were punishable as a common-law misdemeanor because they were conduct capable of injuriously affecting public morality.

Reasoning

Pennsylvania retained the English common law of crimes except where legislation had displaced it. The relevant inquiry was therefore not whether a reported case had previously punished precisely the same conduct, but whether the conduct was of a kind that could have been prosecuted at common law.

The court relied on the established common-law principle that an act may be indictable when it directly injures, or tends sufficiently to injure, the public so that the state must intervene. This includes conduct that injuriously affects public morality, even if no exact precedent appears in the reports.

Mochan's persistent calls were not merely private insults. His obscene, lewd, and graphic sexual language, directed repeatedly at a stranger in her home, was conduct the court regarded as scandalously affecting public morals. The possibility that a telephone operator or others on the shared line could overhear, together with the fact that members of Zivkovich's household actually heard portions of the calls, supplied a public dimension to the offense.

Issue #2

Whether the rule that a mere attempt to persuade a married woman to commit adultery is not indictable barred Mochan's prosecution.

Holding

No. Mochan's conduct went materially beyond a noncriminal oral solicitation of adultery.

Reasoning

The court acknowledged Smith v. Commonwealth, which held that merely endeavoring to persuade a married woman to commit adultery was not indictable. But Mochan engaged in repeated overt conduct rather than a single solicitation: he persistently called Zivkovich and subjected her and her household to obscene and degrading language.

His graphic references to sodomy and his broader pattern of filthy and immoral speech distinguished this case from Smith. In the court's view, those features made the calls potentially injurious to public morality and placed them within the scope of a common-law misdemeanor.

Issue #3

Whether the indictments were defective because the district attorney's label, “Immoral Practices and Conduct,” did not precisely name a recognized offense.

Holding

No. The factual allegations in the indictments adequately charged a common-law misdemeanor, and the evidence proved the allegations.

Reasoning

The court treated the endorsement naming the offense as unimportant. What mattered was the body of each indictment, which alleged repeated malicious calls using lewd, obscene, and defamatory language to harass Zivkovich and corrupt public morals.

Those factual allegations identified a common-law offense, and the trial evidence established that Mochan made the described calls. The court therefore affirmed both judgments of conviction and the sentences.

Dissents

Judge Woodside

Reasoning

Judge Woodside agreed that Mochan's conduct was reprehensible, but concluded that it was not a crime under Pennsylvania law. In his view, the majority declared criminal an act that had never previously been recognized as criminal in the Commonwealth.

He rejected the majority's use of broad formulas such as conduct that “injures or tends to injure the public” or that potentially affects public morality. Those general propositions, he argued, could not legitimately authorize courts to create new crimes whenever judges considered conduct harmful or immoral.

For Woodside, the constitutional separation of powers assigned the decision whether conduct warrants criminal punishment to the legislature. Although common-law crimes remained part of Pennsylvania law, he believed that nearly two centuries of constitutional government required judicial restraint rather than an expansion of criminal liability by judicial declaration.

Because the legislature had not made Mochan's conduct a crime, Judge Woodside would have reversed the convictions and discharged him. Judge Gunther joined his dissent.