Commonwealth v. Landau

• Decision Date: 22 January 1990
• Docket Number: 1988-78
• Citation: 5 Pa. D. & C.4th 15
• Parties: Commonwealth v. Landau
• Court: Pennsylvania Commonwealth Court

5 Pa. D. & C.4th 15

Commonwealth v. Landau

No. 1988-78

Common Pleas Court of Crawford County, Pennsylvania

January 22, 1990

Appeal from district magistrate.

R Charles Thomas, for plaintiff.

Paul D. Shafer Jr., for defendant.

OPINION

WALKER, S.J.

William P. Landau, d/b/a Meadville News Company Inc. is a business corporation with its principal place of business located. in Meadville, Crawford County, Pennsylvania. Defendant is in the business of distributing newspapers and magazines in the Meadville area. One of defendant's distributees was the Mona Lisa Newsroom located in Vernon Township, Crawford County, Pa. After obtaining a search warrant, the Vernon Township Police searched the Mona Lisa Newsroom and confiscated a number of magazines which they believed to be in violation of the Vernon Township Obscenity Ordinance no. 80-2.

Subsequent to the removal of the magazines, charges were filed under the Vernon Township ordinance against defendant for distributing the alleged obscene magazines to the newsroom. Defendant pled not, guilty and a hearing was held before the district magistrate. The district magistrate found defendant guilty and fined him pursuant to the provisions of the Vernon Township ordinance.

Defendant now appeals the magistrate's decision and in connection with the appeal filed an application for relief which is now before the court for review.

Defendant raises the following two issues in his application for relief:

(1) the validity of the Vernon Township ordinance and

(2) the admissibility of a statement taken from defendant.

ANALYSIS

I

Defendant maintains that Vernon Township Ordinance no. 80-2 is inconsistent with 18 Pa.C.S.§ 5903 and is therefore invalid. This court agrees.

Defendant is charged with violating section 2(A) and (B) of Vernon Township Ordinance 80-2, which reads in pertinent part:

" Section 2: Offenses. No person, knowing the obscene character of the materials or conduct involved, shall:

" (A) Exhibit, show or display, or cause to be exhibited, shown or displayed in any public place in[Vernon] Township, any obscene materials or sexual devices."

" (B) Sell any obscene materials or sexual devices in [Vernon] Township."

Obscene materials is defined in the ordinance as follows.

" Section 1: Definitions"

" (B) 'Obscene materials.': Any literature, including any book, magazine, pamphlet, newspaper, story book, comic book or writing, or any figure, visual representation or image, including any drawing, photograph, picture or motion picture, if the subject matter represents or depicts sexual conduct as herein defined.

" (C) 'Sexual conduct.': Ultimate sexual acts, normal or perverted, actual or simulated, including, by way of illustration, but not limited to, sexual intercourse, masturbation, fellatio, cunnilingus and excretory functions."

The Pennsylvania obscenity statute (18 Pa.C.S.§ 5903) is similar to the Vernon Township Ordinance in what it prohibits, i.e. the sale etc. of obscene materials. However, the Pennsylvania statute differs in the way that it defines " obscene materials" and " sexual conduct,"

18 Pa.C.S. § 5903 reads in pertinent part:

" (b) Definitions

" ... 'Obscene materials.' Any literature, including any book, magazine, pamphlet, newspaper, storypaper, comic book or writing, and any figure, visual representation, or image including any drawing, photograph, picture or motion picture, if:

" (1) The average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;

" (2) The subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this, section; and

" (3) The subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value."

" 'Sexual Conduct.' Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals."

If a statute is silent as to whether municipalities may enact ordinances relating to the field entered by the state, the court is required to ascertain the probable intention of the legislature. Brown v. Pornography Commission of Lower Southampton Township, 620 F.Supp. 1199 (D.C. Pa. 1985), citing authority. Here, however, the statute is not silent. Subsection (k) of 18 Pa.C.S. § 5903 provides:

" Ordinances or Resolutions -- Nothing in this chapter shall be construed to invalidate, supersede, repeal or pre-empt any ordinance or resolution of any political subdivision insofar as it is consistent with this Chapter, and political subdivisions further retain the right to regulate any activities, displays, exhibitions or materials not specifically regulated by this chapter."

This language expresses the legislature's intention to permit municipalities to enact supplemental anti-obscenity ordinances as long as such ordinances are " consistent" with 18 Pa.C.S. § 5903. It must, therefore, be determined whether Vernon Township Ordinance 80-2 is consistent with or materially conflicts with section 5903. Brown, supra.

Ordinance No. 80-2 and section 5903 differ regarding the definition of " obscene materials."

The commonwealth, unlike Vernon Township, has adopted the tripartite test defining obscene materials as enunciated by the United States Supreme Court in Miller v. California, 423 U.S. 15, 993 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Part one of the Miller test which is identical to subsection (1) of 18 Pa. C.S. § 5903 defining obscene materials, requires that the trier of fact decide whether " the average person applying contemporary community standards" would consider certain materials " prurient."

" The primary concern with requiring [the trier of fact] to apply the standard of 'the average person, applying contemporary community standards' is to be certain that, so far as material is not aimed at a deviant group it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person -- or indeed a totally insensitive one." Miller, supra.

The contemporary community standard element is necessary to establish the existence or lack of obscenity in published material, Long v. 130 Market Street Gift and Novelty, Etc., 294 Pa.Super 383, 440 A.2d 517 (1982).

Instantly the Vernon Township ordinance in. question does not provide such a test. The trier of fact, in this case the magistrate, unguided by the " average person applying contemporary community standards" test, was free to apply any test or no test at all. With no available test, triers of fact who are easily offended may deem literature obscene based on their particular sensitivities alone. Other triers of fact who are immigrants from other more permissive populations may not find literature to be obscene by applying their particular less sensitive standards rather than contemporary standards. Certainly, what is acceptable in Las Vegas, Nevada is not necessarily acceptable in a small rural Pennsylvania town. What was warned against in Miller may have occurred here. If the magistrate in the case at bar is a particularly sensitive individual then the literature in question may have been...