The PA Superior Court has decided the case of Commonwealth v. N.M.C., No. 225 WDA 2017 (October 23, 2017), holding that N.M.C. did not create a hazardous or a physically offensive condition by video recording a fight between two other students in a middle school bathroom and disseminating the video to two other students.

 N.M.C. was cited for disorderly conduct – creates a hazardous or physically offensive condition for using his cell phone to video-record 45 seconds of a fight between two other male students that occurred in the boys’ bathroom at his middle school. That evening after school, N.M.C. sent the video via text message to his girlfriend and one other student.


A magisterial district judge held a summary trial and found N.M.C. guilty after which N.M.C. appealed to the court of common pleas. After a trial de novo the common pleas trial court convicted him of disorderly conduct for creating a hazardous or physically offensive condition. Specifically, the trial court stated that the real issue was not so much that N.M.C. took the violent and graphic video; rather, the real issue was that he then distributed it to two other individuals via text message, thereby creating a hazardous or physically offensive condition.

On appeal, N.M.C. argued that the evidence was insufficient to convict him because the Commonwealth failed to prove that his acts of recording the fight and sending it to two people created a hazardous or physically offensive condition. Specifically, he argued that he did not do any acts which could be construed as public unruliness which could or did lead to tumult and disorder. Additionally, N.M.C. argued that the Commonwealth presented no evidence that he sent words in the text messages containing the video that either encouraged or incited violence nor was there evidence that the combatants in the fight were motivated by seeing a similar video nor did the possible dissemination of the video lead the combatants to fight. Finally, N.M.C. argued that he did not create a “physically offensive condition” because his actions were not direct assaults on the physical senses of members of the public.

Although leaving for another day whether wider dissemination of such material on social media networks could create a hazardous condition within the meaning of statute, the Superior Court concluded that the “trial court’s conclusion stretche[d] the disorderly conduct statute too far.”

In conclusion and support of its decision, the Superior Court cited familiar language to those who argue against the overzealous application of the Disorderly Conduct statute: “The offense of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people; it is not to be used as a dragnet for all the irritations which breed in the ferment of a community. It has a specific purpose; it has a definitive objective, it is intended to preserve the public peace; it has thus a limited periphery beyond which the prosecuting authorities have no right to transgress any more than the alleged criminal has the right to operate within its clear outlined circumference.”

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