Com. v. Parente

956 A.2d 1065

COMMONWEALTH of Pennsylvania v. Joseph PARENTE, Appellant.

No. 1575 C.D. 2007.

Commonwealth Court of Pennsylvania.

Argued May 6, 2008.

Decided September 9, 2008.

Lawrence G. Paladin, Jr., Pittsburgh, for appellant.

Timothy J. Lyon, Asst, Dist. Atty., Pittsburgh, for appellee.

BEFORE: McGINLEY, Judge, SMITH-RIBNER, Judge, and KELLEY, Senior Judge.

OPINION BY Senior Judge KELLEY.

Joseph Parente appeals the judgment of sentence entered in the Court of Common Pleas of Allegheny County (trial court) which sentenced Parente to pay a fine totaling $250.00 based upon the adjudication of guilt for Parente's violation of Section 601.04(e)(2) of the City of Pittsburgh's (City) Code of Ordinances (Ordinance).¹ We affirm.

On February 24, 2007, Officer Bryan Sellers of the City's Police Department was at the corner of 7th Avenue and Wood Street in the City when he heard amplified noise coming from a set of speakers in front of 933 Liberty Avenue. An abortion clinic is located at that address, and it is more than 200 feet from where Officer Sellers was standing. Officer Sellers went to that address and found Parente using a sound system composed of two loudspeakers, an amplifier and a microphone.² While Officer Sellers began to prepare a citation based on Parente's use of the sound system without a permit, Parente started talking to a patient approaching the clinic into the hand held microphone connected to the loudspeakers. Officer Sellers ordered Parente to cease using the system three times, and Parente refused to comply with the officer's command. As a result, Officer Sellers arrested Parente and charged him with one count each of a misdemeanor charge of Disorderly Conduct under Section 5503(a) of the Crimes Code, 18 Pa.C.S. § 5503(a), and a summary violation of Section 601.04(e)(2) of the City's Ordinance. On February 27, 2007, Parente was adjudged guilty of a summary charge of Disorderly Conduct³ and the summary violation of Section 601.04(e)(2) of the City's Ordinance following a hearing before a district justice.

On March 26, 2007, Parente appealed the convictions to the trial court, which conducted a de novo hearing on July 30, 2007. See N.T. 7/30/07⁴ at 2-29. At the hearing, Parente argued, inter alia, that: (1) the enforcement of the Ordinance violated his right to freedom of speech⁵ and the free exercise of religion⁶ as guaranteed by the First Amendment to the United States Constitution; (2) the Ordinance substantially burdens the free exercise of his religion in violation of the Pennsylvania Religious Freedom Protection Act (RFPA)⁷; and (3) the Commonwealth failed to establish that he violated the relevant provisions of the Ordinance. See Id. at 15-17, 23-26.

Following the hearing, the trial court issued the instant judgment of sentence, adjudicating Parente not guilty of the Disorderly Conduct charge, adjudicating him guilty of the violation of Section 601.04(e)(2) of the City's Ordinance, and imposing a $250.00 fine and court costs for the violation of the Ordinance. Parente then filed the instant appeal.⁸

In this appeal, Parente claims⁹: (1) his conviction for violating Section 601.04(e)(2) of the Ordinance is not supported by sufficient evidence and it is contrary to law; (2) the enforcement of the Ordinance violates his free of speech rights as guaranteed by the First Amendment; (3) the enforcement of the Ordinance violates his right to the free exercise of religion as guaranteed by the First Amendment; and (4) the enforcement of the Ordinance substantially burdens the free exercise of his religion in violation of Section 4 of the RFPA.¹⁰

Parente first claims that his conviction for violating Section 601.04(e)(2) of the Ordinance is not supported by sufficient evidence and it contrary to law. More specifically, Parente claims that the system used by him in this case, composed of two loudspeakers, an amplifier and a microphone, does not fit within the prohibition contained in Section 601.04(e)(2) of the City's Ordinance prohibiting the transmission of noise through a "portable, hand carried, audio amplification or reproduction device[]" that is plainly audible at a distance of seventy-five feet.

In order to demonstrate that Parente violated Section 601.04(e)(2) of the City's Ordinance, the Commonwealth was required to establish that he used a "portable, hand carried, audio amplification ... device[]" that created noise "which is plainly audible to an officer at a distance of seventy-five (75) feet from the source of the noise." Officer Sellers testified before the trial court that he heard the noise that Parente created when he and his partner "were a good 200 feet if not more" away from the clinic. N.T. 7/30/07 at 3-4. Officer Sellers testified that when he arrived at the clinic, he found Parente using two loudspeakers, an amplifier, and a microphone to communicate with people on the street. Id. at 5, 7.

In addition, Parente testified before the trial court, in pertinent part, as follows:

Q Mr. Parente, you stated that you did attempt to look into applying for a permit for your protest?

A For the use of the sound system.

Q And you let the City know that you were using a handheld amplification device or microphone connected to a speaker during your protest.

* * *

A Yes, I did say that I wanted to use a sound system, a portable sound system, to amplify the sound so that my voice could be heard.

N.T. 7/30/07 at 20-21 (emphasis added).

When viewed in a light most favorable to the Commonwealth, there is clearly sufficient evidence to sustain Parente's conviction. Parente himself characterized the sound system that he used at the site as "a portable sound system", and Officer Sellers testified that the noise created by that system was clearly audible more than seventy-five feet away. As a result, Parente's claim that his conviction is not supported by sufficient evidence and that it is contrary to law is patently without merit.

Parente next claims that the enforcement of the Ordinance violates his free speech rights as guaranteed by the First Amendment. More specifically, Parente claims that in addition to Section 601.04(e)(2) of the Ordinance, the City has also enacted Section 623.03¹¹ which creates an eight-foot "bubble zone" around individuals located within a 100-foot radius of a medical clinic. Parente contends that the enforcement of Section 601.04(e)(2), in conjunction with Section 623.03, violates his free speech rights because without the use of the amplification equipment, he would be compelled to shout his message which would, in turn, cause his intended audience to reject both him and his message and it would invite another arrest.

It is well settled that, in general, ordinances are presumed to be constitutional, and a heavy burden is placed on those seeking to prove its unconstitutionality. Reed v. Harrisburg City Council, 927 A.2d 698 (Pa.Cmwlth.), petition for allowance of appeal denied, 593 Pa. 419, 931 A.2d 629 (2007). With respect to a claim that an ordinance violates free speech rights as guaranteed by the First Amendment, the Pennsylvania Superior Court has previously noted:

[T]he amplification of sound is protected by the First Amendment. It is well-established, however, that a governmental entity may impose, even in public forums, reasonable time, place and manner restrictions on protected speech. To be reasonable, the restrictions on protected speech must be content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.

Commonwealth v. Scott, 878 A.2d 874, 880 (Pa.Super.), petition for allowance of appeal denied, 586 Pa. 749, 892 A.2d 823 (2005) (citations omitted).

In this appeal, Parente only challenges the Ordinance on the final consideration outlined above, i.e., that the Ordinance does not "leave open ample alternative channels for communication of the information." See Brief for Appellant at 27, 28. However, as indicated above, the provisions of Section 601.04(e)(2) of the Ordinance do not absolutely prohibit the use of a "portable, hand carried, audio amplification ... device[]". Rather, Section 601.04(e)(2) of the Ordinance merely prohibits the use of such a device in such a manner that it creates noise "which is plainly audible to an officer at a distance of seventy-five (75) feet from the source of the noise." Thus, the provisions of the Ordinance do not prohibit Parente's use of this "channel of communication", but merely regulate the volume level at which Parente may use this "channel of communication".

It is well settled that such a regulation regarding the volume level of a particular channel of communication is not violative of the First Amendment to the United States Constitution on the basis that it does not "leave open ample alternative channels for communication of the information." See Ward v. Rock Against Racism, 491 U.S. 781, 802, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ("The final requirement, that the guideline leave open ample alternative channels of communication, is easily met. Indeed, in this respect the guideline is far less restrictive than regulations we have upheld in other cases, for it does not attempt to ban any particular manner or type of expression at a given place or time. Rather, the guideline continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification. That the city's limitations on volume may reduce to some degree the potential audience for respondent's speech is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate.") (citations omitted); Scott, 878 A.2d at 881 ("Lastly, we find that Section 12-1126 leaves open ample alternative channels for the enjoyment of music or other forms of communication. Section 12-1126 merely limits the volume of the...