Commonwealth v. Bond

504 A.2d 869, 350 Pa. Super. 341, 1986 Pa. Super. LEXIS 9440

• Court: Supreme Court of Pennsylvania
• Decided: January 31, 1986
• Docket: 03505
• Status: Published

Opinions

CAVANAUGH, Judge:

Jeanette Bobi Bond was convicted of violating the Pennsylvania obscenity law, 18 Pa.C.S.A. § 5903. She now appeals to this court raising the following questions:

1. Did the trial of the appellant commence more than 180 days from the date the Complaint was filed against the appellant in violation of Pennsylvania Rule of Criminal Procedure No. 1100?

2. Is 18 Pa.C.S.A. § 5903, which prohibits the sale of obscene material unconstitutionally vague and over-broad in that it defines obscene material to include protected speech?

3. Was the Complaint issued without probable cause and without specificity in its charge sufficient to afford appellant proper notice of the charge and an opportunity to prepare a defense, all in violation of appellant’s constitutional rights?

4. Can the material, in the first instance, as a matter of law be classified as hardcore sexual conduct and, therefore, be deemed legally obscene?

5. Did the Trial Court err when within the context of the definition of obscenity, the Court informed the Jury that material may be deemed to be “patently offensive” and not constitute an affront to contemporary community standards?

For the reasons which follow, we affirm the judgment of sentence.

Rule 1100

The Complaint against appellant was filed on February 11, 1981 charging her with a violation of the Pennsylvania obscenity law, 18 Pa.C.S.A. § 5903 (Purdon 1983). Therefore, pursuant to Rule 1100, appellant was required to be brought to trial before August 11, 1981. On July 22, 1981 (day 161), appellant, along with eight other defendants, appeared before the trial court for the purpose of litigating pre-trial motions. Included among those issues raised was appellant’s Motion to discharge the appellant on the grounds, inter alia, that the obscenity statute is unconstitutional. The motion stated six separate claims of unconstitutionality. The trial court reserved judgment on this motion pending the filing of briefs by the parties and the appellant agreed to waive the computation of time under Rule 1100 for thirty-seven days (until August 29, 1981) so that briefs could be filed. The request for time to file briefs was made by appellant’s counsel. Appellant’s new run date was accordingly extended until September 17.

On September 30, 1981, the Commonwealth filed a petition to extend the run date pursuant to Rule 1100(c). A hearing on the petition was scheduled for October 30.

On October 16, the trial court entered its order denying appellant’s Motion to Dismiss. Subsequently on November 18, upon appellant’s motion, the trial court certified for interlocutory appellate review the question of the constitutionality of the obscenity statute. Again appellant waived Rule 1100 for the period from November 9 to December 7, 1981.

On February 10, 1982, the Superior Court denied appellant’s petition for interlocutory appeal. Trial was set for April 19, 1982, but was continued at the request of appellant’s attorney.¹ The case was ultimately called for trial on June 7, 1982.

Pennsylvania Rule of Criminal Procedure 1100 directs that trial “shall commence no later than one hundred eighty (180) days from the day on which the complaint is filed.” In denying appellant’s Rule 1100 challenge, the trial court opined that trial commenced on July 22, 1981, the date on which appellant’s pre-trial motions were litigated. Because this date fell within the 180-day period, the court found no violation of appellant’s right to a speedy trial. We agree with that conclusion.

Rule 1100 expressly provides: “For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea a guilty or nolo contendere." Pa.R.Crim.P. 1100(b). The comments to the Rule, however, explain further:

It is not intended that preliminary calendar calls should constitute commencement of a trial. For the purpose of this rule, a trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial.

Pa.R.Crim.P. 1100 comments, quoted with approval in Jones v. Commonwealth, 495 Pa. 490, 495, 434 A.2d 1197, 1199 (1981). In an often relied upon Concurring Opinion,' then Chief Justice Eagan embellished on this comment:

The words “some other such” immediately preceding “first step in the trial” clearly indicate that the events specifically referred to in the comment are to be considered first steps in a trial for purposes of Rule 1100, see Commonwealth v. Boyle, 470 Pa. 343, 353, 368 A.2d 661, 666 (1977), even though not all of these events are, strictly speaking, directly involved with the determination of guilt or innocence. For example, if a case were called to trial and, after determining the parties were present, the trial judge held a hearing on a suppression motion which had been reserved for the time of trial, presumably the trial would have commenced for purposes of Rule 1100. This leads to the conclusion that the principal concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than pro forma, event. Moreover, each of the events specifically referred to in the foregoing portion of the comment represents a degree of commitment of the court’s time and resources such that the process of determining the defendant’s guilt or innocence follows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt-determining process is a “first step in the trial” for purposes of Rule 1100.

Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) (Eagen, C.J. concurring). See also Commonwealth v. Williams, 250 Pa.Super. 221, 378 A.2d 906 (1977) (trial commences with a “substantial commitment of time and resources of the lower court toward a prompt determination of appellant’s guilt or innocence”).

In applying Rule 1100 under this interpretation, our courts on numerous occasions have considered whether a pretrial suppression hearing constitutes commencement of trial. For example, in Commonwealth v. Dozier, 258 Pa.Super. 367, 392 A.2d 837 (1978), the defendant claimed that his trial counsel was ineffective for failing to assert that Dozier’s Rule 1100 rights had been violated. The criminal complaint had been filed against the defendant on December 28, 1974. Trial under Rule 1100 therefore had to commence by June 26, 1975. On March 12, 1975, Dozier appeared before the trial court for the purpose of entering a guilty plea. Following the colloquy, however, he decided not to plead guilty. The court then directed the parties to proceed on the defendant’s oral motion to suppress evidence. The case was ultimately called to trial on July 21, 1975, 205 days after the filing of the complaint.

On appeal the Commonwealth argued that Rule 1100 was not violated because trial had “commenced” on March 12, the date of the defendant’s suppression hearing. This court rejected that argument, ruling that “a hearing on a motion will mark the commencement of trial under Rule 1100 only if (1) the accused is adequately warned that the hearing has been reserved until the time of trial and (2) the hearing actually leads directly into the guilt-determining process.” Id., 258 Pa.Superior Ct. at 371-72, 392 A.2d at 840. On the facts before it, the Dozier court observed that the suppression hearing had not been explicitly reserved to trial and that the hearing did not lead directly into the guilt-determining process, but rather preceded the selection of the jury by 101 days. Dozier, accordingly, was discharged.

Similarly, in Commonwealth v. Machi, 294 Pa.Super. 338, 439 A.2d 1230 (1982), the court was constrained to discharge the defendant because of the delay between the suppression hearing and the actual trial. The Machi court noted the philosophy that “a suppression hearing will be found to have lead directly into the guilt-determining process only if it triggered a substantial commitment of the court’s time and resources to a determination of the defendant’s guilt.” Id., 294 Pa.Superior Ct. at 342, 439 A.2d at 1232 (citing Commonwealth v. Bethel, 261 Pa.Super. 231, 396 A.2d 372 (1978)). Accord Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978); Commonwealth v. Williams, 250 Pa.Super. 221, 378 A.2d 906 (1977).

Thus, when the Commonwealth has taken the position that the suppression hearing constituted the commencement of trial for Rule 1100 purposes, our courts have focused their inquiry on the temporal proximity of the hearing to the actual trial. Compare Commonwealth v. Machi, supra (185 days between hearing and trial); Commonwealth v. Taylor, 254 Pa.Super. 211, 385 A.2d 984 (1978) (173 days); Commonwealth v. Haddad, 256 Pa.Super. 176, 389 A.2d 658 (1978) (250 days); Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978) (62 days); Commonwealth v. Bethel, 261 Pa.Super. 231, 396 A.2d 372 (1978) (16 days) (all finding that the suppression hearing did not lead directly into the guilt-determining process) with Commonwealth v. Kluska, 484 Pa. 508, 399 A.2d 681 (1979), cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78 (1979). (one day between hearing and jury selection); Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980) (jury selection immediately after suppression hearing); Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977) (one day between hearing and jury selection); Commonwealth v. Fisher, 244 Pa.Super. 361, 368 A.2d 762 (1976) (trial began two days after completion of suppression hearing) (all concluding that trial commenced on date of suppression hearing).² Similarly, in Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984), the court considered whether a pre-trial hearing on defendant’s motion for change of venue constituted commencement of trial. Observing that the motion had been reserved for the time of trial and that the guilt-determining process, “with the jury being sworn and testimony taken,” began only two days later, the court in Bell concluded that for the purpose of Rule 1100 trial had commenced on the date of the hearing.

In each of these prior cases the court has dealt with a pre-trial hearing which was plainly not part of the guilt-determining process. As Judge Spaeth has articulated,

In a functional sense, a suppression hearing cannot “lead into” the guilt-determining process because it is not part of that process but is simply a way of administering the exclusionary rule. 3 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.2 (1978). Referring to the distinction between a suppression hearing and a trial, the United States Supreme Court has said:

We must remember also that we are not dealing with the trial of the criminal charge itself... . The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment.

McCray v. Illinois, 386 U.S. 300, 307, 87 S.Ct. 1056, 1060, 18 L.Ed.2d 62 (1967).

Commonwealth v. Machi, 294 Pa.Super. 338, 343 n. 3, 439 A.2d 1230, 1232-33 n. 3 (1982). It is likewise true that a motion for change of venue as in Bell, supra, is not part of the guilt-determining process but rather affects only the situs of that process. As a result, it has been the time between that pre-trial hearing and the actual trial which has been held determinative.

The pre-trial hearing in the instant case, however, differs significantly from the suppression hearings and change of venue proceeding in the prior cases. At the pre-trial hearing on July 22, 1981, appellant raised a multifaceted constitutional challenge to 18 Pa.C.S.A. § 5903, the statute under which she had been charged. Unlike a motion to suppress or to change venue, appellant presented a motion to dismiss the complaint lodged against her. If successful, the charges against the appellant would necessarily have been avoided and the appellant discharged. Therefore, consideration of appellant’s constitutional challenge to the obscenity statute was itself a process of promptly determining the appellant’s asserted innocence. As such it constituted a “first step in the trial” for purposes of Rule 1100, tolling the 180-day period. See Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1978) (Eagen, C.J. concurring). Appellant relies heavily on “pretrial” nomenclature used by the court and litigants in describing the July 22 proceedings before Judge Garb in arguing that it was not the commencement of trial. Of course, it is the substance rather than the designation of the proceedings which controls. Otherwise, a trial could never commence for Rule 1100 purposes until the initiation of the actual evidentiary proceedings of the guilt determining process. Appellant freely chose to reach her goal of acquittal by a “first step” which required the court to resolve complicated legal issues which fairly required briefing, deliberation and disposition. Appellant then sought to test an adverse determination on appeal. That the process was necessarily time consuming makes it no less an elected stage which led directly to the guilt determining process.

This is not to say, however, that all pre-trial hearings on a defendant’s motion to dismiss will constitute the commencement of trial under Rule 1100. Unlike, for example, a finding that the Commonwealth failed to assert criminal charges within the applicable statute of limitations period, a ruling that the “violated” statute is unconstitutional indicates that there was no valid prohibition on the defendant’s actions and, a fortiori, no culpable conduct by the defendant. It is more akin to a finding of innocence than a discharge under the statute of limitations which reflects only a legislative determination that it would be unfair to prosecute the defendant for his otherwise culpable behavior.

We now hold that for Rule 1100 purposes appellant’s trial commenced on July 22, 1981, within the 180-day period and accordingly find no violation of appellant’s speedy trial rights as guaranteed by Rule 1100.

Appellant argues that 18 C.Pa.S.A. § 5903 — Obscene and other sexual materials — is unconstitutionally vague and overbroad. Constitutional attacks on this provision have been consistently defeated in opinions by our appellate courts. American Booksellers Ass’n., Inc. v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984); Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984); Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983); Long v. 130 Market St. Gift & Novelty, 294 Pa.Super. 383, 440 A.2d 517 (1982). Specifically, it is claimed that in the definition of “obscene materials” the term “prurient interest” in subsection (1) is not further defined to refer to a prurient interest “in sex.”³ Thus, it is argued that the words are unconstitutionally vague or overbroad because they are self-defined and may relate to a prurient interest in something other than sex. The argument must fail on any account. An accepted definition of prurient is “having lascivious thoughts or desires: Lewd” Websters New Collegiate Dictionary. Moreover, any reading of the obscenity statute makes it patently clear that the provision deals with a prurient interest in sex. Most importantly, the Pennsylvania statute had dutifully followed the language suggested by the United States Supreme Court in defining the permissible scope of regulation of works which depict or describe sexual conduct:

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419, 431, (1973). (Emphasis added.)

It is next argued that the word “lewd” is unconstitutionally vague as used in the following context:

“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.

Appellant’s argument has no merit. Her attack is upon plain language which by any definition would refer to any licentious depictions of the genitals. Again, the language of the act has been copied from Miller.

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals, (emphasis added.)

Id. at 25, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

The unyielding efforts to constitutionally dismantle obscenity statutes by verbal dissection has not received judicial favor. In a landmark case, the United States Supreme Court stated:

It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. The federal obscenity statute makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy ... or other publication of an indecent character.” The California statute makes punishable, inter alia, the keeping for sale or advertising material that is “obscene or indecent.” The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.

Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. “... [T]he Constitution does not require impossible standards”; all that is required is that the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices____”

These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark “... boundaries sufficiently distinct for judges and juries fairly to administer the law ____ That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.

Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, 1499 (1957) (citations omitted) (footnotes omitted). See, also, Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

In a highly generalized argument, appellant urges that the complaint issued in this case violates her rights under the United States Constitution. It is argued that the complaint was not adequate to apprise appellant of what she must prepare to meet. Our examination of the criminal information discloses that it fully complies with statutory and constitutional requirements and that it is adequately descriptive of the offending material found in the copy of the publication “Wedding Orgy” which was purchased from appellant and exhibited to the issuing magistrate. In addition, appellant was given full notice of the time, date and place of the offense. See generally Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Commonwealth v. Tumolo, 455 Pa. 424, 317 A.2d 295 (1974); Commonwealth v. Lee, 454 Pa. 526, 312 A.2d 391 (1973); Commonwealth v. Rolinski, 267 Pa.Super. 199, 406 A.2d 763 (1979); Commonwealth v. Bradshaw, 238 Pa.Super. 22, 364 A.2d 702 (1975); Commonwealth v. Levenson, 225 Pa.Super. 318, 303 A.2d 838 (1973). Similarly, appellant’s argument that the material under consideration in this case is not legally obscene, is simply contradicted by the evidence which contained abundant photographs and descriptions of clearly offensive material under the Miller standards. Appellant’s attack is essentially one of the sufficiency of the evidence under which we are required to review the evidence in a light most favorable to the verdict winner. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978); Commonwealth v. Cotton, 338 Pa.Super. 20, 487 (1984). Finally, appellant argues that she is entitled to a new trial since the court sustained an objection to a question asked by her counsel to an expert witness called by appellant. The question dealt with the applicability of contemporary community standards as a measure of patent offensiveness. A reading of the record shows that appellant’s argument is totally devoid of merit as the court permitted counsel to question the witness and, in addition, charged the jury in accordance with appellant’s request in this regard.⁴ Lastly, we find the court’s charge conformed to the law. McCay v. Philadelphia Elec. Co., 447 Pa. 490, 291 A.2d 759 (1972). Where the subject matter is adequately and properly covered in the charge given, it is not error to fail to charge in the exact language requested. Duffy v. National Janitorial Service, Inc., 429 Pa. 334, 240 A.2d 527 (1968); Donaldson v. Sepesy, 415 Pa. 194, 202 A.2d 823 (1964); Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983).

Judgment of sentence affirmed.

DEL SOLE and McEWEN, JJ., join in this opinion. SPAETH, President Judge, and BROSKY, J., file concurring opinions. WIEAND, J., files concurring opinion, in which ROW-LEY, BECK and TAMILIA, JJ., join.

1 . We ultimately decide herein that the trial "commenced” for Rule 1100 purposes on July 22, 1981. We need not decide what speedy trial rights existed thereafter since it is clear that scheduling the case sixty-eight days after the appellate court order which returned the case for trial was in no event unreasonable. See Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981).

2 . In Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981), a two and one-half year period intervened between the suppression hearing and the actual trial. The supreme court, however, agreed with the Commonwealth's argument that for Rule 1100 purposes trial commenced on the date of the suppression hearing “since that Motion [to Suppress] was made ‘returnable at the time of trial before the trial judge’ and since the trial court thus took a substantial ‘first step’ leading directly into the guilt determining process." Id., 495 Pa. at 496, 434 A.2d at 1200. The court further observed that the prosecution was prepared to proceed to trial but for the suppression hearing and that "[t]hese facts reflect that the time and resources of the trial court and the prosecution were committed in a substantive, rather than a pro forma, manner to the commencement of trial----” Id. Additionally, in Jones the Commonwealth had appealed from the grant of the suppression motion. The supreme court held that the appeal was an "automatic supercedeas of the operation of Rule 1100” because its effect was to deprive the trial court of jurisdiction to proceed with the trial.

3 . Appellant, in her brief, while purporting to repeat the Miller definition, has inaccurately added the words "in sex."

4 . At the conclusion of the charge, the following was stated to the jury after an off-the-record discussion:

THE COURT: When I talked about patently offensive, I mean, does it exceed the limits of contemporary society standards.

Does everybody agree now? At least, does everybody agree to that?

MR. OSHTRY: [Counsel for appellant] Yes.

MR. WILLIAMS: [Asst. District Atty.] Yes.