Com. v. Cohen

• Decision Date: 23 February 1988
• Citation: 371 Pa.Super. 558,538 A.2d 582
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Lee Lewis COHEN, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Terry George RUGER, Appellant.
• Court: Pennsylvania Superior Court

Page 582

538 A.2d 582

371 Pa.Super. 558

COMMONWEALTH of Pennsylvania, Appellee, v.Lee Lewis COHEN, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v.Terry George RUGER, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 3, 1987.

Decided Feb. 23, 1988.

Peter P. Griffin, Public Defender, Lock Haven, for appellant in 309.

Harold N. Fitzkee, Jr., York, for appellant in 310.

Merritt E. McKnight, Dist. Atty., Lock Haven, for Com., appellee.

Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.

OLSZEWSKI, Judge:

This is a consolidated appeal from the trial court's judgment of sentence following a jury trial at which appellants were convicted of prostitution and related offenses in violation of 18 Pa.C.S.A. § 5902(b)(1).For the reasons stated below we affirm the order of the trial court.

Appellants were the owners and operators of the Taj Mahal II, a massage parlor.They were brought to trial on the charge of promoting prostitution of another person by owning, controlling, managing or supervising a house of prostitution.The basis for the charge was the giving of a full body massage by nude female masseuses.The massage included a "hand release", a euphemistic term for masturbating the male clients of the establishment.Following appellants' conviction of promoting prostitution, post-trial motions were filed and denied.This appeal followed.

Appellants raise three issues for our review: (1) did the lower court err in finding that 18 Pa.C.S.A. § 5902 was not unconstitutionally vague as applied to the instant case; (2) was it proper for the court to deny appellant Cohen the right to testify concerning his reliance on legal information and advice which he had received before entering into the "massage" business; and (3) was the trial court correct in its decision to permit introduction of the testimony of an employee as an admission against appellants even though appellants were not present when the statement was made.

Prostitution is prohibited in Pennsylvania by 18 Pa.C.S.A. § 5902, Prostitution and Related Offenses.Section 5902 provides in pertinent part:

(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; ...

(Emphasis added.).Sexual activity is defined in 18 Pa.C.S.A. § 5902(f) as including homosexual and other deviate sexual relations.

Appellants contend that the definition of "sexual activity" is a limited one not including masturbation or genital massage.Alternatively, they contend that Section 5902 is vague and was unconstitutionally applied in the instant case.

We feel that both of these contentions are adequately addressed by this Court's prior pronouncements in this area.

With respect to the contention that "sexual activity" does not include masturbation or genital massage, this Court stated the following:

"In the mind of a man of 'common intelligence' the term sexual activity clearly encompasses masturbation as a business.Indeed, as we have already observed, it is difficult to believe that any man of common intelligence would consider the massaging of the genitals of an unclothed man by a nude or partially nude female to be anything other than sexual activity."

Commonwealth v. Robbins, 358 Pa.Super. 225, 516 A.2d 1266(1986), appeal denied, 515 Pa. 577, 527 A.2d 538(1987), quotingCommonwealth v. Israeloff, 8 Pa.D. & C. 3rd, 5 (1978).

We now undertake a review of appellants' contention that 18 Pa.C.S.A. § 5902 is vague and that its application to the present situation is achieved through judicial legislation and is therefore unconstitutional.Specifically, appellants contend that the statute does not give reasonable notice of the conduct which it proscribes, therefore it violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 246(1976)

It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual criminally responsible for conduct which he could not reasonably understand to be proscribed.

Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 244, 46 L.Ed.2d 185, 188(1975).However,

" '[T]he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices....' "(Emphasis added)Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498(1957);see alsoDistrict of Columbia v. Garcia, D.C.App., 335 A.2d 217, cert. denied, 423 U.S. 894, 96 S.Ct. 192, 46 L.Ed.2d 125(1975).

In dealing with the exact same issue, with substantially the same factual setting, Commonwealth v. Robbins found that the appellant therein had notice and fair warning that she was violating the law by allowing the performance of manual sexual stimulation for money.

Appellants, however, fault Robbins for failing to recognize that the issue there, as here, was not whether the term "sexual activity" encompassed masturbation but whether masturbation is the type of activity intended to be prohibited by the Prostitution statute.Robbins specifically addressed this issue.We therefore quote the pertinent portion of that opinion.

Furthermore, since the term "sexual activity" is undefined by the statute, we are obliged to construe that term according to its common and approved usage.Barasch v. Pennsylvania Public Utility Commission, 507 Pa. 430, 490 A.2d 806(1985).See alsoStatutory Construction Act, 1 Pa.C.S.A. Section 1903 (a).When the term "sexual activity" is examined in light of the statute's underlying purpose of prohibiting commercial exploitation of sexual gratification and also in light of its common and approved usage, there is no doubt that masturbation for hire falls within the statute's proscription.Therefore, we find Section 5902 (a) is not unconstitutionally vague so as to cause appellant to seriously believe that she was not providing some form of sexual gratification for the payment of money.

Commonwealth v. Robbins, 358 Pa.Super. at 230, 231, 516 A.2d at 1269(Emphasis added.).

Appellants' next contention is that the trial court erred in not permitting one of the appellants, Lee Cohen, to testify that he had relied on certain legal information that the business with which he was involved was not illegal.He cites Commonwealth v. Bollinger, 197 Pa.Super. 492, 179 A.2d 253(1962) for the proposition"that a person is entitled to rely on the parameters in defining the legitimacy of their activities."(Appellant's briefat 17).

The legal information on which ap...