Com. v. LaLonde

• Decision Date: 21 March 1972
• Citation: 288 A.2d 782,447 Pa. 364
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Louis LaLONDE et al., Appellants.
• Court: Pennsylvania Supreme Court

Page 782

288 A.2d 782

447 Pa. 364

COMMONWEALTH of Pennsylvania, Appellee, v. Louis LaLONDE et al., Appellants.

Supreme Court of Pennsylvania.

March 21, 1972.

Marjorie Hanson Matson, Pittsburgh, for appellants.

Robert W. Duggan, Dist. Atty., Carol Mary Los, Robert L. Campbell, Asst. Dist. Attys., Pittsburgh, for appellee.

Before JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION

EAGEN, Justice.

Louis LaLonde, Charles Mitchlen and William Schrin were convicted in a nonjury trial in Allegheny County of illegal possession and sale of obscene literature in violation of Section 524 of the Act of June 24, 1939, P.L. 872, as amended, 18 P.S. § 4524. ¹ Post trial motions were denied and sentence was imposed. On appeal the Superior Court affirmed the judgments without opinion. Judges Hoffman and Spaulding noted a dissent. See 218 Pa.Super., 805, 275 A.2d 376 (1971). We granted allocatur.

The events recounted at trial began on October 31, 1967, with the purchase of a paperback book entitled 'Queenie' by Detective Regis Holleran of the Pittsburgh Police Department from Louis LaLonde, a salesman-employee of the Mello Cigar Store, a Pittsburgh establishment owned by appellant Schrin. ² On November 9th, Holleran returned to the store and purchased a second book entitled 'The Hypocrite.' This transaction was made with appellant mitchlen, who sold the book without comment.

The detective later consulted with the police legal advisor and a representative of the district attorney's office, both of whom read the books and advised the prosecution which was subsequently initiated and which culminated in the instant convictions.

At trial both books were introduced as exhibits and the text was incorporated into the record. In addition there was oral testimony from the police officer who had purchased these items. He described the premises where the books were offered for sale, the manner in which they were displayed and the circumstances surrounding the purchase. No other evidence was proffered by the Commonwealth on whether the books were obscene vel non in the constitutional sense.

Appellants attempted to rescue the books through the expert testimony of Dr. Maurice Serul, a psychiatrist at the University of Pittsburgh specializing in human sexuality. The doctor testified that in his opinion neither book was obscene and that both had redeeming social value from a clinical point of view. This for the reason that pornography 'serves as a method of draining off sexual tensions and sexual impulses' which might otherwise be expressed in more harmful ways, as for example by the commission of sex crimes. ³

It is appellants' contention that reversal of the instant convictions is required for two reasons: first, because the Commonwealth failed to prove that these books were obsence in the constitutional sense, and second, because the Pennsylvania Obscenity Statute is unconstitutional on its face and as applied in the circumstances of this case.

We reverse for the reasons stated hereinafter which are limited solely to the issue of failure of proof.

In a most able opinion the lower court delineated the confusing state of obscenity law which seems to us akin 'to a riddle wrapped in a mystery inside and enigma.' Writing for the court en banc, Judge McLean said:

'There was no expert testimony presented by the Commonwealth, and the only real evidence of obscenity was the books themselves. However, once the trial judge concluded that it is still legally possible for obscenity to occur, he concluded that these books must necessarily be obscene, for he could not imagine what else might be done to make either of the books 'more obscene.' In other words, if there is such a thing as an obscene narration, this has to be it, and if this is not it, then there is none.'

However, guided by our decision in Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840 (1967), ⁴ a comparison of the challenged books to other books which have been held entitled to the protection of the First Amendment by the Supreme Court of the United States leads to the inescapable conclusion that At a minimum we are presently precluded from sustaining these convictions by following that salutary line of cases which holds that when confronted with hard core pornography, no proof other than the viewing is required to determine the question of obscenity vel non. See Morris v. United States, 259 A.2d 337 (D.C.App.1969); Hudson v. United States, 234 A.2d 903 (D.C.App. 1967); Donnenberg v. State, 1 Md.App. 591, 232 A.2d 264 (1967); United States v. Gower, D.C., 316 F.Supp. 1390 (1970); United States v. Wild, 422 F.2d 34 (2d Cir. 1969). ⁵

In recent years the United States Supreme Court has on at least twenty-nine occasions reversed obscenity convictions and determinations involving various kinds of expression (books, photomagazines, films, etc.) on the authority of its cryptic per curiam opinion in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). ⁶ Several of these cases involved books of the same genre as 'Queenie' and 'The Hypocrite', namely, distorted, impoverished masturbatory concentrations on the representation of sexual activity. The lower courts had little difficulty in determining the books to be obscene and their descriptions of what was being proscribed are disturbingly similar to any description we might apply to the instant books.

Thus the material held protected in Books, Inc. v. United States, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967), had previously been condemned by the eminent Federal Jurist, Charles E. Wyzanski, Jr., in 358 F.2d 935, 936 (1966) as follows:

'(The) pages set forth, in the form of a novel, a tale exclusively devoted to the sexual adventures of its principal characters. Adulteries, seductions, and orgies are the only events of importance. The contacts described include not only sexual intercourse, but sodomy and other perversions. There is not any serious effort to portray the reality of cultural or social conditions of even the most neurotic or sordid portion of the population.'

In United States v. West Coast News Company, 357 F.2d 855, 858 (1966), the Sixth Circuit Court of Appeals characterized the book 'Sex Life of a Cop' in the following manner:

'Without palliating interruption, the story moves quickly from one sexual enterprise to another. So numerous are these events that even the practiced skill of the author runs out of fresh imagery and dully repeats his supply of leering adjectives.'

The court thereupon concluded that 'we know hard core pornography when we see it.' Id. at 858. The decision was reversed in Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967). More recently in Hoyt v. Minnesota, 399 U.S. 524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970), the Supreme Court overturned convictions for selling three purportedly obscene books ⁷ which had been earlier characterized by the Supreme Court of Minnesota as involving a 'theme (which) is pointless save as it serves to relate the characters to repeated accounts of lewd and degrading episodes. They deal with filth for the sake of filth.' 174 N.W.2d 700, 702 (1970).

Believing as we do that the materials under scrutiny do not reach that plateau of degradation which would subject them to summary proscription under the rationale of cases like Morris v. United States, supra, we now turn our attention to the independent evaluation which we are mandated to make on the issue of whether these books are obscene. ⁸

The overriding difficulty which here confronts us is the absence of any evidence besides the books themselves. Hence, we find ourselves in the same legal cul de sac which recently confronted the Fifth Circuit Court of Appeals in United States v. Groner, d/b/a Lucky Distributors, No. 71--1091 (C.A. 5, filed January 11, 1972). ⁹

There, as here, the prosecuting authorities' only evidence was certain books alleged to be obscene. This evidentiary predicament caused the court (per Thornberry, J.) to complain that:

'Knowing the legal test for obscenity and applying the same in the light of recent Supreme Court decisions, however, are two entirely different matters. We are completely incapable of applying the test in the instant case. Without some guidance, from experts or otherwise, we find ourselves unable to apply the Roth standard with anything more definite or objective than our own personal standards which should not and cannot serve as a basis for either denying or granting first amendment protection to this or any other literature.'

The requirement of evidence on the elements of obscenity has been adopted by several state and federal courts over the past few years, no doubt because it lends a measure of objectivity to the exquisite vagueness of the Roth-Memoirs test. See, for example, Woodruff v. State, 11 Md.App. 202, 273 A.2d 436 (1971); In Re Seven Magazines, 268 A.2d 707 (Sup.Ct.R.I.1970); Keuper v. Wilson, 111 N.J. Super. 489, 268 A.2d 753 (1970); In Re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 665, 446 P.2d 535 (1968); Donnenberg v. State, 1 Md.App. 591, 232 A.2d 264 (1967); United States v. Groner, supra; United States v. Klaw, 2nd Cir., 350 F.2d 155 (1965). ¹⁰

Elsewhere it has been rejected on the ground that obscenity vel non is an ultimate fact issue to be decided by the trier(s) of fact alone without opinion evidence. Stroud v. State, Ind.App., 273 N.E.2d 842 (1971). ¹¹ See also, Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5 (1960), wherein is espoused the notion that appellate judges are as capable as any expert of determining whether material is obscene.

The United States Supreme Court has never confronted directly the issue of whether there is any need for expert or other evidence to establish the elements of the Roth-Memoirs test and has in fact dealt with the issue but once and then in a most peripheral fashion.

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