Com. v. Robbins

• Decision Date: 05 November 1986
• Citation: 358 Pa.Super. 225,516 A.2d 1266
• Parties: COMMONWEALTH of Pennsylvania v. Darene Helen ROBBINS, Appellant.
• Court: Pennsylvania Superior Court

Page 1266

516 A.2d 1266

358 Pa.Super. 225

COMMONWEALTH of Pennsylvania v. Darene Helen ROBBINS, Appellant.

Superior Court of Pennsylvania.

Argued June 19, 1986.

Filed Nov. 5, 1986.

Lawrence B. Fox, Bethlehem, for appellant.

Michael Vedomsky, Asst. Dist. Atty., Easton, for Com., appellee.

Before CIRILLO, President Judge, and CAVANAUGH and TAMILIA, JJ.

TAMILIA, Judge:

This is an appeal from judgment of sentence entered after a jury convicted appellant of prostitution. A sentence of one year probation and a $750 fine was imposed. Appellant was charged under section (b) of Prostitution and related offenses, 18 Pa.C.S.A. § 5902, which states that it is an offense to "knowingly promote prostitution of another by owning, controlling, managing, supervising or otherwise keeping, alone or in association with another, a house of prostitution or a prostitution business...."

The jury found appellant in violation of this section for her co-owner status of the Body Clinic, an establishment where semi-nude female employees perform massages on nude male customers for a fee. The "massage" included masturbation of the genitalia.

On appeal, appellant contends, inter alia, that section 5902 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 5902, Prostitution and related offenses, is unconstitutionally vague and thus, void. Specifically, it is alleged that the term "sexual activity" is inadequately defined. 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)

Subsection (f) of section 5902 further defines sexual activity as "includ[ing] homosexual and other deviate sexual relations." In essence, appellant asserts she had no notice and fair warning as required by due process that she was violating the law by allowing manual genital stimulation for the payment of money.

It is well settled that "[a] criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction. Statutes which are so vague that they fail to provide such notice violate 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). See also Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985). A statute will be deemed violative of due process if the terms of the statute "... are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application...." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). However, the constitutional prohibition against vagueness does not invalidate every statute which could have been drafted with greater precision. Due process requires only that the law give sufficient warning so that individuals may conform their conduct so as to avoid that which the law forbids. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

In addition to the aforementioned constitutional standards, this Court is mindful of the fact that "... a legislative enactment enjoys a presumption in favor of its constitutionality and will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution. All doubts are to be resolved in favor of constitutionality." Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 111, 394 A.2d 932, 937 (1978). See also Commonwealth v. Sterling, 344 Pa.Super. 269, 496 A.2d 789 (1985); Statutory Construction Act of December 6, 1972, P.L. 1339, § 3, 1 Pa.C.S.A. § 1922(3).

Our research has disclosed only two Pennsylvania cases which have examined the application of the prostitution statute to the activity of masturbation of a male by a nude or semi-nude female for hire. Both cases on point are decisions of the Pennsylvania Common Pleas Court. First, in Commonwealth v. Dougan, 5 D. & C.3d 406 (1978), the defendant, who had been charged with a violation of section 5902 for the masturbation of a male client for a fee at a "spa", motioned to quash the complaint. The court granted defendant's motion to quash on the basis that prostitution, as defined in section 5902(a), requires sexual activity involving at least some penetration. After reviewing the history of section 5902, the court opined that:

The sexual activity contemplated by prior legislation and the cases interpreting that legislation were confined to sexual intercourse. In the present act, the legislature clarified the prior law to include "homosexual and other deviate sexual relations." In all of these activities there must be penetration however slight, before the act is committed....

Dougan, 5 D. & C.3d at 408. It is important to note, however, that the court in Dougan did not undertake a detailed constitutional analysis of the prostitution statute to determine whether the term "sexual activity" was unconstitutionally vague.

Conversely, Judge Wieand (now of this Court), while a Common Pleas Judge, in Commonwealth v. Israeloff, 8 D. & C.3d 5 (1978), concluded that the prostitution statute as applied to a genital massage for money is not unconstitutionally vague.

Upon examination of the prostitution statute, in light of the aforementioned constitutional standards, the court concluded the statute does not fail for vagueness because:

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.

Israeloff, 8 D. & C.3d at 11.

Although we are not bound by either of these decisions, we find the analysis in Israeloff to be a more accurate application of the constitutional standards concerning vagueness. While the court in Dougan traced the history of the term "prostitution" from its common law origin, the court in Israeloff examined the term "sexual activity" in light of a constitutional void-for-vagueness challenge. We believe there is no question that appellant had notice and fair warning, as required by due process, that she was violating the law by allowing manual sexual stimulation for the payment of money. This is clearly not a situation where the conduct prohibited is so intangible or vague as to require men of common intelligence to guess at its meaning and differ as to its application. Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974).

The statute in question was enacted to provide an ascertainable standard of conduct directed at a defined evil; such evil being the commercial exploitation of sexual gratification. Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127, 1136 (1983). 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 Com'n, 507 Pa. 430, 490 A.2d 806 (1985). See also Statutory Construction Act, 1 Pa.C.S.A. § 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.

Appellant's second allegation of error is that the Commonwealth failed to present sufficient evidence to support her conviction. We hold that this issue has not been properly preserved for appeal since appellant's post-verdict motion contains a mere boilerplate allegation of error in violation of Commonwealth v. Holmes, 315 Pa.Super. 256, 461...