Commonwealth v. Wida
| Decision Date | 20 June 1979 |
| Docket Number | CR-79-27 |
| Citation | 12 Pa. D. & C.3d 1 |
| Parties | Commonwealth v. Wida |
| Court | Pennsylvania Commonwealth Court |
R Michael Kaar, for Commonwealth.
Leonard R. Apfelbaum, for defendant.
Motion to quash information.
On January 3, 1979, the Pennsylvania State Police, armed with a search warrant, entered the fire company building of the Americus Hose Company of Sunbury. As a result we have, so far as we can determine, a novel constitutional challenge to the criminal gambling laws of Pennsylvania.
Defendant herein, Michael R. Wida, president of the Americus, was subsequently arrested and charged with violating sections 5512 and 5513 of the Crimes Code of Pennsylvania. [1] At the hearing before this court on defendant's omnibus pretrial motion, Mr. Wida admitted that the Americus conducts gambling on its premises. Defendant openly stated that he was aware that punch boards, lottery stamp machines, and other gambling devices, the possession of which are prohibited by Pennsylvania's gambling laws, were maintained on the premises of the Americus Hose Company. However, defendant contends that these statutes are unconstitutional under both the Pennsylvania and United States constitutions.
This court has been the subject of both a demonstration outside the courthouse and much superfluous testimony on the part of defendant. However, the feelings of the members of the Americus and other volunteer fire companies as to the inequity of the gambling laws are not without merit. The outstanding public service performed by this organization is well known. It is unfortunate, however, that attention has been diverted from the real issue. Whether Pennsylvania's gambling laws are good or bad, fair or unfair, popular or unpopular, are issues for the legislature, and not this court, to decide. If the public is opposed to Pennsylvania's gambling laws in their present form, the legislature has the power to make the necessary changes. The power of this court is limited to the narrow issue of determining whether these laws pass constitutional muster. Although we sympathize with these volunteer firemen, we have a duty to interpret the law without being influenced by outside considerations. We will deal with each of defendant's claims separately in addressing this question.
Defendant contends that both 5512 and 5513 are unconstitutionally vague. The gist of this complaint is that the term " unlawful lottery" in 5512, and " unlawful gambling" in 5513 fail to give notice of what conduct is prohibited by these statutes. 5512 defines the term " unlawful" as " not specifically authorized by law." Defendant does not view this definition as adequate.
In its classic formulation of the standard for establishing unconstitutional vagueness, the United States Supreme Court held that a penal statute " must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties." If " men of common intelligence" must guess at the meaning of a statute, the statute violates due process of law: Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). See also Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).
This is not the first time Pennsylvania's gambling statutes have been challenged as unconstitutionally vague. In Com. v. Betres, 237 Pa.Super 361, 367, 352 A.2d 495 (1975), it was asserted that the terms " unlawful gambling" and " unlawful gambling place" in 5513 were unclear. This argument was based on the fact that gambling in itself is not unlawful in Pennsylvania. The Superior Court of Pennsylvania found this contention to be without merit, stating that:
Defendant attempts to minimize the applicability of Betres by pointing to the differing factual situation. In Betres, defendant was gambling for private profit, while in the instant case the Americus conducts gambling for charitable purposes. This distinction is irrelevant. " The word 'gambling' has a commonsense meaning and should be construed accordingly." Com. v. Soychak, 221 Pa.Super 458, 466, 289 A.2d 119, 124 (1972). A person knows when he is gambling. Also, there is no guesswork required in determining whether the particular form of gambling engaged in is authorized. Thus, there is no need for " men of common intelligence" to guess at the meaning of " unlawful gambling." We, therefore, find that sections 5512 and 5513 of the Pennsylvania Crimes Code are not unconstitutionally vague.
Defendant also asserts that 5512 and 5513 are unconstitutionally overbroad. It is argued that the scope of " unlawful gambling" as defined in these sections includes conduct of defendant and the Americus which is protected by the First Amendment. Defendant claims these sections prevent peaceful and legitimate entities, like the Americus, from utilizing a source of revenue collection.
" It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrick v. Oklahoma, 413 U.S. 601, 611-612, 93 S.Ct. 2908, 37 L.Ed.2d 830, 839-840 (1973).
Even a clear and precise enactment may be overbroad if in its reach it prohibits constitutionally protected conduct: Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222, 231 (1972); Zwickler v. Koota, 389 U.S. 241, 249-250, 88 S.Ct. 391, 19 L.Ed.2d 444, 450-451 (1967). Thus, the question we face is whether Pennsylvania's gambling laws sweep within their prohibition conduct that may not be punished under the First and Fourteenth Amendments.
The scope of statutes that have been declared overbroad has ranged from those that sought to regulate " only spoken words." See Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), to those which ensnared the rights of association of innocent organizations. See Keyishian v. Board of Regents, U. of St. of N.Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967). Though defendant has not specifically stated what protected conduct of the Americus is prohibited, we nevertheless will examine these statutes from both ends of the spectrum.
It has long been held that it is not an abridgment of freedom of speech to make a course of conduct illegal merely because the conduct in part is carried out by means of spoken language: Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Following from this, courts throughout the country have repeatedly held that there is no constitutional right to gamble: Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), overruled on other grounds in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). See also Maine State Raceways v. LaFleur, 147 Me. 367, 87 A.2d 674, 679 (1952); United States v. Matya, 541 F.2d 741, 747 (8th Cir. 1976). The case of United States v. Matya, supra, is particularly interesting in respect to the case at hand. In Matya, a Nebraska statute, R.R.S. Neb. § 28-947 (1943), made it a crime to keep on exhibit " any gaming table, establishment, device or apparatus, to win or gain money." The court noted that " the overbreadth doctrine, far from being an expansive license by which courts routinely invalidate statutes which might have been drafted with more precision, is a doctrine whose function is limited." Matya, supra, at 747-748. It then concluded that defendants would be hard pressed to argue that any conduct reached by the Nebraska statute could be characterized as free expression. Surely a statute as broad as the Nebraska one would include conduct such as that of the Americus. We, therefore, find that sections 5512 and 5513 of the Pennsylvania Crimes Code in no way impinge upon defendant's, or anyone's, First Amendment rights. [2]
Defendant has placed the greatest emphasis on the claim that 5512 and 5513, in conjunction with the specifically authorized forms of gambling in Pennsylvania, invidiously discriminate against the Americus and other charitable organizations in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. It is well known that the legislature of the Commonwealth of Pennsylvania has seen fit to carve three exceptions out of the gambling laws. Two of these, the State Harness Racing Act of December 22, 1959 P.L. 1978, 15 P.S. § 2601 [3] et seq., and the State Thoroughbred Racing Act of December 11, 1967, P.L. 707, 15 P.S. § 2651 [4] et seq., authorize private corporations to conduct gambling with the Commonwealth to receive a percentage of the gross revenues. The third, the State Lottery Law of August 26, 1971, P.L. 351, sec. 1, 72 P.S. § 3761-1 [5] et seq., allows the government to conduct gambling with the net revenues...
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