Can a person be convicted of a common law misdemeanor in Pennsylvania for making obscene and harassing phone calls, even if such conduct is not explicitly criminalized by statute?

Michael Mochan repeatedly made obscene and harassing phone calls to Louise Zivkovich, a married woman, over a period exceeding one month in early 1953. The calls occurred up to three times per week at various hours. During these calls, Mochan used explicit, lewd language and proposed sexual acts including intercourse and sodomy in graphic detail. The calls were made from a four-party line, potentially allowing others to overhear the conversations.

Mrs. Zivkovich, described as a woman of high character, was the target of these unwanted communications. Police eventually identified and arrested Mochan after he completed his final call. Following his arrest, Mrs. Zivkovich confirmed Mochan's identity by recognizing his voice during a police-arranged phone conversation.

Mochan was charged with two indictments for 'Immoral Practices and Conduct' on separate dates. The case proceeded to trial before a judge without a jury, where Mochan was convicted on both charges. Following his conviction, Mochan filed motions in arrest of judgment, which were refused by the court en banc. Mochan then appealed to the Superior Court of Pennsylvania, challenging his convictions on the grounds that his conduct did not constitute a misdemeanor at common law.

(Hirt, J.)

Yes. A person can be convicted of a common law misdemeanor in Pennsylvania for making obscene and harassing phone calls, even without an explicit statutory prohibition. The common law is sufficiently broad to punish as a misdemeanor any act which directly injures or tends to injure public morality, regardless of the existence of an exact precedent. This principle stems from established legal doctrine that acts injuriously affecting public morality or openly outraging decency constitute misdemeanors at common law. The persistent use of lewd and obscene language, coupled with suggestions of sodomy, goes beyond mere solicitation of adultery and enters the realm of conduct detrimental to public morals. The potential for others to overhear such conversations on a party line further amplifies the impact on public morality. This interpretation of common law misdemeanors aligns with precedents set in cases like Commonwealth v. Miller and Commonwealth v. DeGrange, which affirm the courts' authority to punish acts that offend public decency and morality. The distinction from cases involving simple solicitation, such as Smith v. Commonwealth, lies in the egregious and persistent nature of the conduct, which poses a more significant threat to societal standards of decency. This application of common law principles to novel situations demonstrates the law's adaptability in addressing evolving forms of misconduct that may not be explicitly covered by existing statutes. The decision reinforces the judiciary's role in safeguarding public morality and decency through the flexible application of common law principles, ensuring that the law can respond to new forms of offensive behavior that emerge with technological advancements.

Dissent (Woodside, J.) The court is improperly creating a new crime and invading the legislative domain. It should be the legislature's role to determine what acts injure the public to the extent requiring punishment, not the courts. This decision sets a dangerous precedent of judicial overreach and blurs the separation of powers between the judicial and legislative branches.

Dissent (Gunther, J.) Concurred with Judge Woodside's dissent without providing a separate written opinion.