Commonwealth v. Zullinger , 450 Pa. Super. 533 ( 1996 )

DEL SOLE, Judge.

Appellant Todd Zullinger was convicted before a District Justice of summary harassment. 18 Pa.C.S. § 2709(a)(3). He appealed to the Court of Common Pleas and, following a hearing de novo, was again convicted. This appeal followed. We reverse the conviction and vacate the judgment of sentence.

The record reveals that Appellant appeared in the office of District Justice Ronald E. Klair to arrange payments on a traffic citation which Appellant’s brother had received. He was wearing a T-shirt “with the words fuck you acrossed [sic] the front — near the waist, and fuck you appeared many times above that.” N.T. 11/29/94 p. 5. Klair told AppeEant not to wear the shirt into the office again. AppeEant told Klair that he had a constitutional right to wear the shirt and would wear it whenever and wherever he pleased. AppeEant returned to the office two weeks later to make another payment on his brother’s citation and again wore the T-shirt. Klair again told AppeEant not to wear the T-shirt and again the two argued over AppeEant’s right to wear such a T-shirt. Klair then had AppeEant cited for disorderly conduct. The charge was noEe prossed by the District Attorney. Sometime after that, AppeEant caEed Klair’s office stating he wanted to bring Klair a copy of the noEe pros. AppeEant then appeared in Klair’s office wearing the same T-shirt and carrying a copy of the noEe pros order. Again the two argued over AppeEant’s right to wear the T-shirt. This time, Klair had AppeEant cited for harassment.

The citation charged appeEant with “repeatedly wearing a T-shirt stating ‘Fuck You’ multiple times after being told not to wear it.” Citation. RR. p. 3. AppeEant contends that the trial court erred by convicting him on the basis of uncharged conduct and that his wearing of the T-shirt is constitutionaEy protected free speech.¹ We agree with Ap-peEant on both arguments.

The citation in a summary case must contain both the specific statute violated and a brief factual summary sufficient to give the defendant notice of the nature of the offense charged. Pa.R.Crim.P. 132. A variance between a citation or indictment and the proof at trial is not fatal if it still gives the defendant sufficient notice and does not cause surprise which is prejudicial to the defense. Commonwealth v. Ohle, 508 Pa. 566, 470 A.2d 61 (1983); Hill v. Commonwealth, 68 Pa.Commw. 71, 448 A.2d 106 (1982). Herein, the citation set forth only the wearing of the T-shirt as the criminal conduct. The Commonwealth, however, presented testimony of previous encounters between Appellant and the District Justice as well as testimony that, on the day he was arrested, Appellant argued with the District Justice and refused to leave the District Justice’s office. When Appellant took the stand, the trial court refused to hear any testimony about the previous encounters, confining Appellant’s testimony to the day he was arrested. Clearly, Appellant was both surprised and prejudiced by the variance between the conduct charged and the conduct proved at trial. The court did not consider just the conduct charged, the wearing of the T-shirt, but also considered the previous encounters as well as other occurrences on the day of Appellant’s arrest. The court, however, did not permit Appellant to testify to his version of the prior encounters, thus causing prejudice to Appellant. On this basis, therefore, Appellant’s conviction must be reversed.²

We also agree with Appellant that the language on the T-shirt is constitutionally protected. As a general rule, the First Amendment prohibits government interference with an individual’s freedom of speech. Only very narrow exceptions, such as obscenity, defamation, and “fighting words,” have been carved out of this general guarantee of freedom. R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Any speech which does not fit into one of these narrow exceptions is constitutionally protected regardless of how vulgar or lacking in taste or social, political or artistic content. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Contrary to the Commonwealth’s suggestion, Zullinger’s T-shirt is not unprotected because it did not express a social or political belief. The right to free speech encompasses “the freedom to speak foolishly and without moderation.” Baumgartner v. U.S., 322 U.S. 665, 674, 64 S.Ct. 1240, 1245, 88 L.Ed. 1525 (1944). We do not mean to suggest that a judge or district justice may not hold visitors to the court room to certain dress standards for that is not the issue here. These encounters did not take place in the court room but in an office which is open to the public. Although Klair may have found Appellant’s T-shirt distasteful, that is not a basis on which the state can restrict Appellant’s right to wear the shirt in public. Cohen at p. 25, 91 S.Ct. at p. 1788. Thus, on this ground also, Appellant’s conviction must be reversed.

Conviction reversed and judgment of sentence vacated.

SAYLOR, J., files a dissenting opinion.

1 . Appellant also argues that the trial court should have granted his writ to supplement the record by introducing the actual shirt into evidence. Due to our disposition, we need not reach this issue.

2 . We note that Appellant could not have been convicted based solely on his wearing the T-shirt into Klair's office on the day he was arrested. As defined in 18 Pa.C.S. § 2709(a)(3), harassment requires a "course of conduct.” A single act will not support a conviction under this section. Commonwealth v. Schnabel, 236 Pa.Super. 280, 344 A.2d 896 (1975).