Com. v. Bleigh

• Decision Date: 15 February 1991
• Citation: 586 A.2d 450,402 Pa.Super. 169
• Parties: COMMONWEALTH of Pennsylvania v. Ricki Lynne BLEIGH, Appellant. COMMONWEALTH of Pennsylvania v. Virginia Lee SHIPE, Appellant. COMMONWEALTH of Pennsylvania v. John Andrews THOMPSON, Appellant.
• Court: Pennsylvania Superior Court

Page 450

586 A.2d 450

402 Pa.Super. 169

COMMONWEALTH of Pennsylvania v. Ricki Lynne BLEIGH, Appellant.

COMMONWEALTH of Pennsylvania v. Virginia Lee SHIPE, Appellant.

COMMONWEALTH of Pennsylvania v. John Andrews THOMPSON, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 13, 1990.

Decided Jan. 9, 1991.

Reargument Denied Feb. 15, 1991.

Michael E. Brunnabend, Public Defender, Allentown, for Bleigh, Shipe and Thompson, appellants.

Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com., appellee.

Before CIRILLO, President Judge, and JOHNSON and BROSKY, JJ.

CIRILLO, President Judge:

Ricki Lynne Bleigh, Virginia Lee Shipe, and John Andrews Thompson appeal from judgments of sentence entered on January 11, 1990 in the Cumberland County Court of Common Pleas. We affirm in part and vacate in part.

On October 13, 1988, Detective Michael Strine entered an adult bookstore. Upon entry, Detective Strine observed an array of sexually oriented materials including magazines, movies, and various devices. Additionally, the bookstore had booths available where patrons could view sexually explicit movies or, if they desired, a live female dancer. The booths contained a telephone, a waste can, and a roll of toilet paper. The patrons and the dancers were separated by a pane of glass. As such, they communicated by phone.

Detective Strine entered a booth and placed money into a machine which opened a curtain and exposed Shipe draped in lingerie. Shipe informed Detective Strine that the curtain would remain open for five minutes and that if he placed five dollars through a slot in the wall marked "tips," she would take off her top, for ten dollars she would remove all her clothing and for twenty dollars she would put on a "show." Detective Strine placed twenty dollars through the slot and Shipe removed all of her clothing and masturbated.

Later that same evening, Chief Barry Sherman of the Middlesex Township Police went to the same establishment, entered a private booth, placed twenty dollars through the slot and viewed Bleigh masturbate in the nude. Based upon this information, the police obtained a search warrant authorizing the seizure of "any and all sexually oriented materials, including magazines, movies, sexual devices, records of ownership/occupancy/employment, any cash monies or proceeds derived from the sale of said material, and/or sexual activity." On October 14, 1988, the police executed the search warrant. Upon entering the building, which was open to the public at the time, they immediately arrested Thompson, who was working at the front counter. The police also arrested Shipe who was found in one of the booths, and Bleigh who was in the basement with her husband. A search of Shipe's pocketbook revealed the marked twenty dollar bill paid to her by one of the officers, a quantity of cocaine and drug paraphernalia. Additionally, a search of Bleigh's pocketbook following her arrest revealed the marked twenty dollar bill which had been paid to her by Chief Sherman the previous day. The police also observed Thompson's briefcase, and after searching it, discovered, among other things, a quantity of cocaine.

After a jury trial Bleigh was convicted of prostitution. Shipe was convicted of prostitution, unlawful possession of a controlled substance, and unlawful possession of drug paraphernalia. See 35 P.S. § 780-113. Thompson was convicted of promoting prostitution, unlawful possession of a controlled substance, and unlawful possession of drug paraphernalia. The defendants' post-verdict motions were denied, sentence was imposed and this timely appeal followed.

The appellants' advance the following issues for our review:

I. (a) Does self-masturbation or simulated self-masturbation for hire constitute "prostitution" pursuant to 18 Pa.C.S. Section 5902(a); and if so, is Section 5902 constitutionally valid as applied in this case?

(b) Was the evidence sufficient to sustain the Trial Court's failure to quash and/or dismiss the charge of promoting prostitution ... against Mr. Thompson?

II. Was the search warrant which permitted the search and seizure of various items located in an adult bookstore invalid due to vagueness or overbreadth?

III. (a) Did the police, in executing a search warrant, commit an illegal search by failing to "knock and announce" as required?

(b) Did the police illegally search and seize various personal property from individuals pursuant to a search warrant?

We are called upon once again to clarify what actions constitute the crime of prostitution in this Commonwealth. Specifically, we must determine if self-masturbation for hire with no physical contact between patron and performer constitutes prostitution. The legislature has provided:

(a) Prostitution--a person is guilty of prostitution; a misdemeanor of the third degree, if he or she:

(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; ...

18 Pa.C.S. § 5902(a) (emphasis added). Section 5902(f) states that sexual activity includes homosexual and other deviate sexual relations. 18 Pa.C.S. § 5902(f). Clearly, however, the conduct described in section 5902(f) is not the only activity that constitutes prostitution. See Commonwealth v. Cohen, 371 Pa.Super. 558, 538 A.2d 582 (1988); Commonwealth v. Robbins, 358 Pa.Super. 225, 516 A.2d 1266 (1986).

Since the term "sexual activity" is neither specifically nor exhaustively defined in the prostitution statute, we must construe the term according to its common and approved usage. 1 Pa.C.S. § 1903(a); Robbins, 358 Pa.Super. at 230-32, 516 A.2d at 1269. Consequently, it is necessary to trace the history and development of the prostitution statute. See Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127 (1983).

In Commonwealth v. Lavery, 247 Pa. 139, 142, 93 A. 276, [277-78] (1915), our Supreme Court said that prostitution was "not mere fornication or adultery confined to one man, but indiscriminate illicit intercourse for hire with any man seeking it," but in Commonwealth v. Stingel, 156 Pa.Super. 359, 361, 40 A.2d 140, 141 (1944), this Court held that "indiscriminate cohabitation" was no longer necessary, since "the Legislature ha[d] broadened the compass of the term" by the Act of June 24, 1939, P.L. 872, § 103; 18 Pa.C.S. § 4103. "Prostitution" was there defined as "offering or using of the body for sexual intercourse for hire." Also, in this Commonwealth's statutes (e.g., the Act of June 30, 1923, P.L. 982 and the Act of June 24, 1939, P.L. 872), the word "fornication" was dropped from the language of the sections relating to similar offenses. Commonwealth v. Robertson, 178 Pa.Super. 281, 286, 116 A.2d 224, 227 (1955); Commonwealth v. Dougan, 5 D. & C.3d 406, 408 (1978).

In the present Act [18 Pa.C.S. § 5902], the Legislature did not eradicate the commonly understood definition of prostitution but merely clarified it to include "homosexual and other deviate sexual relations." Id.; see Commonwealth v. Miller, 469 Pa. 24, 28, 364 A.2d 886, 887 (1976).

It cannot be gainsaid that "prostitution" has persisted since Biblical times, and, as such, has acquired a traditional meaning, i.e. "indiscriminate illicit intercourse for hire."

. . . . .

Potts, 314 Pa.Super. at 270-71, 460 A.2d at 1134 (citations omitted, emphasis added). In Potts, this court concluded that section 5902 was not unconstitutionally vague; rather, the court found it provided an ascertainable standard of conduct directed at a defined evil--the commercial exploitation of sexual gratification. Id. at 273-75, 460 A.2d at 1136. Other evils designed to be eradicated by the criminalization of prostitution are the spread of venereal disease; the corruption of law enforcement agencies; the incentive to coerce and exploit women; and criminal organizations living on the proceeds of prostitution. See Commonwealth v. Dodge, 287 Pa.Super. 148, 429 A.2d 1143 (1980).

As the court in Potts stated, prostitution or sexual activity as a business, "has traditionally meant sexual intercourse for hire." Id. Sexual intercourse, however, is not the only sexual activity proscribed by section 5902.

In Cohen and Robbins, this court held, after examining the statute's purpose, that the masturbation of a male by a female for money was sexual activity as a business and therefore prostitution. Cohen, 371 Pa.Super. at 560-62, 538 A.2d at 583; Robbins, 358 Pa.Super. at 228-30, 516 A.2d at 1268. In both cases, as in Potts, the court also found that section 5902 was not unconstitutionally vague. Cohen, supra; Robbins, supra.

Here, the Commonwealth argues that because Shipe and Bleigh engaged in self-masturbation for the sexual gratification of their customers, it was sexual activity as a business and therefore prostitution. We disagree.

Having examined the evolution of the term prostitution, and the cases interpreting it, we conclude that self-masturbation for hire without any physical contact between performer and viewer is not the type of conduct intended to come within the purview of section 5902. Further, the definition of sexual activity in section 5902(f) states that it "includes homosexual and other deviate sexual relations." 18 Pa.C.S. § 5902 (emphasis added). This clarification, while not controlling, indicates that sexual activity requires the physical interaction of two or more people. Here, there was no physical interaction between the dancers and the patrons. As such, this conduct is more akin to commercial voyeurism; it is not, however, prostitution. Consequently, Bleigh's and Shipe's judgments of sentence for prostitution must be reversed. ¹

Likewise, since Thompson's conviction for promoting prostitution was based upon the actions of Bleigh and Shipe, his judgment of sentence is also reversed. See 18 Pa.C.S. § 5902(b). Clearly, if the activities promoted do not amount to prostitution, Thompson cannot be guilty of promoting prostitution.

The appellants next claim that the officers...