Commonwealth v. Mochan

Brief Fact Summary. Defendant Mochan placed several telephone calls to Louise Zivkovich during which he made comments portraying the victim as lewd, immoral, and lascivious. While the conduct was not specifically proscribed by statute, the Defendant was charged and convicted under the common law.

Synopsis of Rule of Law. Common law crimes continue to be punishable under the law.

Facts. Defendant Mochan was charged with intending “to debauch and corrupt, and further devising and intending to harass, embarrass and vilify” Louise Zivkovich. The Defendant was accused of calling the victim’s house and among other things, making indecent comments intending to injure the victim. No Pennsylvania statute specifically forbade the Defendant’s actions, but rather, he was convicted under the common law of outraging decency and injuring public morals. The Defendant thereafter appealed.

Issue. Was the Defendant properly convicted for violating the common law crime of outraging decency and injuring public morals?

Held. Yes. Conviction affirmed.
The Pennsylvania Penal Code, at the time of this case, provided that common law crimes were still punishable.

Under the common law, “[w]hatever openly outrages decency and is injurious to public morals is a misdemeanor at common law.”

The defendant’s phone calls suggested sodomy and consisted of lewd, immoral, and filthy language. These acts, at least potentially, injured public morality. The defendant’s conviction was therefore justified.

Dissent. By punishing under the common law, the judiciary is improperly invading a field that should be left to the legislature, namely deciding acts that injure the public.

Discussion. Nearly all states, including Pennsylvania, have abolished common law offenses.