Com. v. Stock

• Decision Date: 16 October 1985
• Citation: 499 A.2d 308,346 Pa.Super. 60
• Parties: COMMONWEALTH of Pennsylvania v. Gary Thomas STOCK, Appellant. 01324 Pittsburgh 1983
• Court: Pennsylvania Superior Court

Page 308

499 A.2d 308

346 Pa.Super. 60

COMMONWEALTH of Pennsylvania v. Gary Thomas STOCK, Appellant.

01324 Pittsburgh 1983

Superior Court of Pennsylvania.

Argued April 11, 1985.

Filed Aug. 16, 1985.

Reargument Denied Oct. 16, 1985.

Carl M. Janavitz, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before WIEAND, CIRILLO and JOHNSON, JJ.

CIRILLO, Judge:

An Allegheny County jury found Gary Stock guilty of selling two obscene magazines in violation of 18 Pa.C.S. § 5903(a)(2), and the court sentenced Stock to 11 1/2 to 23 months in prison, suspending the prison sentence on the condition that Stock pay $10,000 for the use of the county. Stock appeals, asserting that the court abused its discretion by imposing a manifestly excessive sentence, and that the obscenity statute is unconstitutional. For the following reasons, we affirm.

We first address Stock's constitutional challenges to the obscenity law.

The portion of the statute Stock was charged with violating states:

(a) Offenses defined.--No person, knowing the obscene character of the materials involved, shall:

* * *

(2) sell, lend, distribute, exhibit, give away or show any obscene materials to any person 17 years of age or older or offer to sell, lend, distribute, exhibit or give away or show, or have in his possession with intent to sell, lend, distribute, exhibit or give away or show any obscene materials to any person 17 years of age or older, or knowingly advertise any obscene materials in any manner ....

Stock first argues that the statute is unconstitutionally overbroad because its proscription on "show[ing]" obscene materials invades spheres of privacy protected by the First, Ninth, and Fourteenth Amendments to the United States Constitution and Article 1, § 7 of the Pennsylvania Constitution.

Stock relies on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), wherein the United States Supreme Court held that a state cannot make mere private possession of obscene matter a crime, because such a regulation would intrude on rights of privacy protected by the First and Fourteenth Amendments. Stock contends that the Pennsylvania statute as drawn would prohibit a husband from "showing" obscene materials to his wife in the privacy of their home, thus violating the constitutional limitations set down in Stanley.

Stock was not prosecuted for privately "showing" obscene materials to his wife, but for publicly selling them from an adult bookstore. He does not assert that the provisions of the statute are unconstitutional as applied to commercial sales of obscene material. Thus, preliminarily we need to address whether Stock has standing to raise this issue.

A traditional principle of constitutional adjudication is that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may be applied unconstitutionally to others in situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, where First Amendment rights are involved, a litigant may attack the facial overbreadth of a statute in regulating free expression even where his own rights are not directly affected by the asserted overbreadth, based on the judicial assumption that the statute's very existence might have a "chilling effect" on the exercise of First Amendment freedoms by persons not before the court. See id. Thus, we will entertain Stock's contention that the Pennsylvania obscenity statute is unconstitutionally overbroad on its face. See also Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978); American Booksellers Association v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984).

In addressing Stock's overbreadth challenge, we bear in mind that the judiciary must accord a strong presumption of constitutionality to the acts of the legislature as a coequal branch of government. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). To overcome this presumption, the person challenging the constitutionality of a statute shoulders the heavy burden of demonstrating that the statute clearly, palpably, and plainly violates the constitution. Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981); Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985) (petition for allocatur filed); Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984).

We must also premise our discussion on the observation that obscenity is not a constitutionally protected mode of expression. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). This principle is important here because of the rule of constitutional jurisprudence that a statute properly regulating unprotected conduct will not be voided as overly broad unless the overbreadth is substantial judged in relation to the statute's plainly legitimate sweep. Broadrick, supra; American Booksellers, supra.

Moreover, facial overbreadth will not be invoked as grounds for invalidating a statute when a limiting construction can be placed on the challenged statute. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); DeFrancesco, supra.

This said, we concede at the outset that Section 5903(a)(2) would appear to be violative of the right to privacy recognized in Stanley, if the statute were construed as making criminal the mere private showing of obscene materials between spouses in the confines of their home. Stanley clearly established that there is a zone of protected privacy in the home upon which the government cannot infringe without trampling the constitutional rights of the individual; thus, in Stanley itself the state could not prosecute the defendant merely for knowingly having an obscene film in his home. But cf. United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (protected right to possess obscene materials in privacy of one's own home does not give rise to correlative right to sell or give it to others); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (no zone of constitutionally protected privacy follows obscene materials when they are moved outside the privacy of the home).

However, reviewing the Pennsylvania statute in light of the principles we have enunciated, we are led to conclude that the word "show" as used in the statute should not be read so broadly as to take within its sweep mere private showings of obscene materials between consenting couples in their homes. Rather, we interpret the statute as prohibiting public "shows" of obscene materials, or the showing of such materials for commercial gain.

Our reading is supported by prior judicial constructions of the statute as well as rules of statutory construction originating from the Legislature itself.

In Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983), this Court addressed an overbreadth challenge to 5903(a)(2) similar to that presented here. In Doe, the appellant argued that the statute unconstitutionally prohibited the mere private possession of obscene material in contravention of Stanley. Writing for the Court, the Honorable Justin Johnson held that the additional elements required by the Pennsylvania statute, namely that the defendant "sell, distribute, exhibit, etc." the obscene material, or offer to do so, or have it in possession with intent to do so, "clearly distinguish" our statute from the one condemned in Stanley. See 316 Pa.Super. at 11, 462 A.2d at 767-68.

The nature of this "clear distinction" was further elucidated in Long v. 130 Market Street Gift & Novelty, 294 Pa.Super. 383, 440 A.2d 517 (1982). In Long our distinguished then-President Judge Cercone, joined by his eminent colleagues Judges Wieand and Hoffman, conducted a comprehensive examination of the purposes of the obscenity statute in the context of a challenge to the statute based on the federal and state constitutional guarantees of freedom of speech. The following passage from the Court's opinion in that case illuminates the issue we are deciding:

A study of the legislative history reveals that the Legislature had two purposes in mind when it enacted the anti-obscenity statute. In the legislature's view, the growth of commercial pornography has exercised a pernicious effect on the sensibilities of the majority of our populace. By enacting the statute it hoped to combat these ill effects. ... Secondly, the criminal elements of society have recently gained considerable financial influence over the population of the Commonwealth. The statute does not forbid, indeed constitutionally it could not, the private possession of pornography, nor does it even prohibit the populace's access to obscene material since the latter may be safely displayed in [the public institutions exempted in § 5903(j) ]. What the statute does prohibit is the commercial exploitation of obscene materials by denying the right to sell them.

294 Pa.Super. at 403-04, 440 A.2d at 526-27 (emphasis ours). Thus, the evil sought to be controlled by the statute is not the mere possession or even the showing of obscene materials in private, but the commercial exploitation of such materials, or at the very least their exhibition in a public setting where the individual's right to privacy is not a significant factor.

That this is the true intendment of the Section 5903(a)(2) prohibition on "showing" is further bolstered by a fair application of the rules of statutory construction. Thus,

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:

(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

(2) That the General Assembly intends the entire statute to be effective and certain.

(3) That the General Assembly does not intend to violate the Constitution of...