I have spoken to many people who are confused about why they are charged with a misdemeanor when their only offense is disorderly conduct. The simple answer is the gradation of the offense depends on how disorderly you were. A person is generally guilty of disorderly conduct if “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; or (4)creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”
The gradation for the above described activity is as follows “An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substaintial harm or serious inconvenience, or if he persists in disorderly conduct after reasonble warning or request to desist. Otherwise disorderly conduct is a summary offense.“
In my experience people are almost always charged with disorderly conduct as a summary. The times where I see the commonwealth pursue the misdemeanor is when the defendant’s behavior is extraordinary or where it is done in a highly populated public area. It is difficult to cause substantial harm or serious inconvenience when you are by yourself or with only a small group of people. I hope this helps clear up some of the confusion.
