From Commonwealth v. Hanner, decided last week by the Pennsylvania intermediate appellate court, in an opinion by Judge John Bender, joined by Judges Mary Jane Bowes and Megan Sullivan:
The facts, as taken in the light most favorable to the Commonwealth as the verdict winner, are straightforward. Sometime during 2021, Appellant's two children were in the foster care system while Appellant was dealing with an incident of domestic abuse in which she was the victim. Her two children stayed with N.M., who is the mother of the victim in this case, S.M. On September 11, 2021, N.M. permitted S.M., who was then ten years old, to ride his bike home from his grandmother's home. Shortly thereafter, S.M. returned to the house, crying and scared.
S.M. testified that he encountered Appellant while bicycling home. He saw a vehicle stopped in the road near a gas station. The driver asked S.M. "do you remember me? I'm [her children's] mom." S.M. recognized the driver as Appellant. Appellant then pulled into the station's parking lot and loudly and aggressively berated S.M., twice calling S.M. a "fucking little snitch." S.M. was scared, started crying, and biked back to his grandmother's home.
Appellant was charged with one count of harassment pursuant to 18 Pa.C.S. § 2709(a)(4), which states that a person commits harassment "when, with intent to harass, annoy or alarm another, the person … communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]" …
[Pennsylvania] decisions have accepted that a harassment conviction is valid only if the speech falls within a First Amendment exception…. In this case, the Commonwealth deferred to the trial court's decision to instruct the jury that any conviction must satisfy the Miller standard, i.e., a recognized exception to the First Amendment's prohibition against criminalizing speech. {We apply [the Miller standard for "obscenity"] as the Commonwealth pursued a theory equating "obscene language" with the Miller standard, and the jury was instructed accordingly.}
