321 A.2d 917 (Pa. 1974), Commonwealth v. Duncan

Citation:321 A.2d 917, 456 Pa. 495
Opinion Judge:Author: Jones
Party Name:COMMONWEALTH of Pennsylvania v. Leon DUNCAN, Appellant.
Case Date:July 01, 1974
Court:Supreme Court of Pennsylvania

Page 917

321 A.2d 917 (Pa. 1974)

456 Pa. 495

COMMONWEALTH of Pennsylvania


Leon DUNCAN, Appellant.

Supreme Court of Pennsylvania.

July 1, 1974.

Page 918

[456 Pa. 496] Vincent J. Ziccardi, Defender, Jonathan Miller, Chief Appeals Div., Defender Assn. of Philadelphia, L. Sosnov, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Linda W. Conley, Philadelphia, for appellee.


[456 Pa. 496] OPINION

JONES, Chief Justice.

On November 23, 1971, appellant was tried by the court without a jury and was convicted of loitering and prowling under the Act of June 24, 1939, P.L. 872, § 418, as amended, 18 P.S. § 4418 (recodified as 18 Pa. S. § 5506). Following denial of post-trial motions, appellant was sentenced to two to twelve months' imprisonment. On appeal, the Superior Court affirmed with three judges dissenting. 1 We granted allocatur Limited [456 Pa. 497] 'to the constitutional issue of vagueness and the issue of determining the extent of Section 418 with respect to the use and meaning of the word 'around' in the statute.'

The undisputed facts giving rise to this prosecution are that appellant entered the rear fire tower of St. Joseph's Hospital in Philadelphia on April 2, 1971, at approximately 9:25 p.m. after the end of visiting hours. In response to a call by a nurse who heard noise in the tower, the police proceeded to the area and arrested appellant at 9:30 p.m. on the third floor landing of the fire tower.

The statute under which appellant was convicted provides:

'Whoever at nighttime maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor. . . .'

Act of June 24, 1939, P.L. 872, § 418, as amended, 18 P.S. § 4418 (recodified as 18

Page 919

Pa. S. § 5506). Because of the limitations placed on our grant of allocatur in this case, the presence or absence of maliciousness is not presently at issue. Rather, we must assume for our purposes that appellant was maliciously loitering and prowling when he was discovered in the fire tower of the hospital. Thus, we must now consider (1) whether or not this activity comes within the coverage of the statute and (2) whether or not the statute is unconstitutionally vague.

In arguing that the statute does not cover indoor prowling and loitering, the appellant has relied heavily on the principale of strict construction of penal statutes. In so doing, however, he has ignored the complementary principle that strict construction does not require 'that the words of a criminal statute (be) given their narrowest meaning or that the lawmaker's evident intent must (be) disregarded.' Commonwealth v. Mason, 381 Pa. 309, 312, 112 A.2d 174, 175 (1955). In Mason, the appellant's[456 Pa. 498] argument for a narrow definition of 'inducing' under the Securities Act was rejected in favor of a broader, more encompassing definition. 381 Pa. at 313, 112 A.2d at 176. The appellant had argued that the alleged victim's concession that he had entered into the questioned transaction willingly precluded a finding of inducement on his part. The Court, however, concluded that the evidence supported a finding that the transaction 'was brought about Or effected Or induced by defendant' and held that such facts would constitute 'inducing.' 381 Pa. at 313--314, 112 A.2d at 176. By so holding, the Mason Court refused to adopt the narrowest accepted definition; rather, the Court opted for a broader, more flexible definition which was more in line with the general legislative purpose underlying the Securities Act.

Another illustration of the principle modifying the rule of strict construction is the case of Commonwealth v. Butler, 189 Pa.Super. 399, 150 A.2d 172 (1959). There, the appellant had been convicted of carrying a firearm 'concealed on or about his person' without a license even though the weapon was sticking out of appellant's pocket at the time. 189 Pa.Super. at 401, 150 A.2d at 173. The appellant...

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