Commonwealth v. Heinbaugh

354 A.2d 244, 467 Pa. 1, 1976 Pa. LEXIS 536

• Court: Supreme Court of Pennsylvania
• Decided: March 22, 1976
• Docket: 50
• Status: Published

Opinions

OPINION OF THE COURT

POMEROY, Justice.

We are required on this appeal to determine whether or not the Pennsylvania open lewdness statute is unconstitutionally vague. This statute, now a part of the Crimes Code of 1972,¹ provides:

“A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.” 18 Pa.C.S.A. § 5901.

The appellee was indicted on one count charging violation of this act by masturbating in a public place in plain view of members of the public.² The trial court granted a motion to quash the indictment on the ground of vagueness, and the Commonwealth has appealed.³ We conclude that under the standards which must govern the disposition of Heinbaugh’s challenge of the statute, it is sufficiently definite.

At the outset appellee urges that we measure the challenged statutory proscription, not against the specific cohduct involved in this case, but against hypothetical conduct that the statutory language could arguably embrace. To do so, however, would require us to adjudicate the rights of parties not presently before the Court, at the insistence of a party who does not have standing to assert such rights. It is for this reason that facial attacks on the validity of statutes are not generally permitted. United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Absent the assertion of an infringement of First Amendment freedoms,⁴ the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged. As the Supreme Court of the United States has but recently put it,

“It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand, [citation omitted]” United, States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 714, 42 L.Ed.2d 706, 713 (1975).

See also Comment, Recent Supreme Court Developments of the Vagueness Doctrine, 7 Conn.L.Rev. 94, 100 (1974); Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960) [hereinafter cited as Pa. Note]. In the instant case, appellee makes no claim that application of the open lewdness statute could result in infringement of protected First Amendment activity. Accordingly, we must adjudge the specificity of the statute in question in light of appellee’s particular conduct in this case. We turn now to the standards which must govern this determination.

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.

“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of 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 United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561, 565 (1963); Comment, Public Disorder Offenses Under Pennsylvania’s New Crimes Code, 78 Dick. L.Rev. 15, 33 (1973); Pa. Note supra at 75. Statutes which are challenged on the ground of vagueness are not, however, to be tested against paradigms of legislative draftsmanship. “The fact that [the legislature] might without difficulty have chosen ‘clear and more precise language’ equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague.” United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 320, 46 L.Ed.2d 228, 235 (1975). Rather, the requirements of due process are satisfied if the statute in question contains reasonable standards to guide the prospective conduct. United States v. Powell, supra; Smith v. Goguen, 415 U. S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Pa. Note, supra at 80; cf. Horvath v. City of Chicago, 510 F.2d 594, 595 (7th Cir. 1975); Freund, The Use of Indefinite Terms in Statutes, 30 Yale L.J. 437 (1921); Note, Due Process Requirements of Definiteness in Statutes, 62 Harv.L.Rev. 77, 80 (1948). Two recent United States Supreme Court decisions are instructive.

In Smith v. Goguen, supra, the Court upheld a vagueness challenge to a statute proscribing conduct deemed “contemptuous of the flag.” The Court reasoned that the statutory language in question was so nondescript and so broad in sweep that it could not convey to the accused a reasonably ascertainable standard against which to gauge contemplated action.

“To be sure, there are statutes that by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes. The present statute, however, is not in that category. This criminal provision is vague ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’ Such a provision simply has no core. This absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause.” Smith v. Goguen, 415 U.S. 577-78, 94 S.Ct. 1242, 1249, 39 L.Ed.2d at 614-15. (Citations omitted).

In contrast, as the Court made clear in United States v. Powell, supra, where the statute contains a standard sufficiently normative to inform the conduct of the person against whom the statute is being applied, the statute will be upheld. The conduct prohibited in Powell was the mailing of “firearms capable of being concealed on the person.” In holding the statute sufficiently precise, the Court concluded:

“While doubts as to the applicability of the language in marginal fact situations may be conceived, we think that the statute gave respondent adequate warning that her mailing of a sawed-off shotgun of some 22 inches in length was a criminal offense. Even as to more doubtful cases than that of respondent, we have said that ‘the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.’ ” [citation omitted] United States v. Powell, 423 U.S. at 93, 96 S.Ct. at 320, 46 L.Ed.2d at 234.

Compare also United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921) with Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 (1932). It seems clear then, that when an ascertainable standard is present in a statute, the violator whose conduct falls clearly within the scope of such standard has no standing to complain of vagueness. This leads us to the question whether such a standard is present in the case at bar.

Open lewdness was an indictable offense at common law. It was defined as an act of gross and open indecency which tends to corrupt the morals of the community. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840, 849 (1948); Commonwealth v. Sharpless, 2 Serg. & R. 91, 100 (1815); IV Blackstone Commentaries 64 n. 38 (W. Lewis ed. 1898); 53 C.J.S. Lewdness, p. 4 (1948). While the language of the challenged Pennsylvania lewdness statute differs in some respects from this common law definition, there is no difference in meaning. The statute in question is a verbatim adoption of the lewdness provision of the Model Penal Code, ALI, Model Penal Code, Proposed Official Draft 251.1. The comment to that section makes it clear that the drafters intended to codify the pre-existing common law:

“Lewd or indecent behavior is punishable in all jurisdictions. The prohibited conduct amounts to gross flouting of community standards in respect to sexuality or nudity in public.” ALI, Model Penal Code, Tentative Draft No. 13 §§ 213.4 & 251.1, Comment at p. 81.

Accordingly, we conclude that the statutory language “any lewd act which [the actor] knows is likely to be observed by others who would be affronted or alarmed,” must be read as restating the established common law standard which has long existed in this Commonwealth.⁵

Statutes which embody well-settled common law norms stand on a footing somewhat different than statutes which attempt to circumscribe conduct newly proscribed. Pa. Note, supra at 87. Because the former group merely reiterate customary normative standards, the prohibitory language need not be drawn with the precision that a newly-conceived interdiction might require. Commonwealth v. Zasloff, 338 Pa. 457, 13 A.2d 67 (1940); see, e. g., Smith v. Goguen, supra (contemptuousness of the flag). Thus, statutes which embody common law definitions have generally survived attacks on the grounds of vagueness. See, e. g., Connolly v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed.2d 322, 328 (1926); Pa. Note, supra at 87. Our question then, reduces itself to whether the common law norm relative to open lewdness and now embodied in the Crimes Code is sufficiently definite when applied to the conduct in which Heinbaugh was engaged. We conclude that it is.⁶

The broadening of sexual permissiveness which is an undeniable aspect of contemporary American society may have served to shrink the perimeters of community morality, but we have not as yet been reduced to an amoral society totally bereft of standards of common decency. Man is still capable of performing actions which, even by contemporary mores, must be deemed, as at common law, “indecencies which tend to corrupt the morals of the community.” In our view the act of masturbating in a public place is such an indecency; an act which may be said to affront the sensibilities of a substantial segment of the community. That there might be other conduct, clearly punishable at the time of Blackstone, which could not today be constitutionally punished under the statutory standard is of no assistance to Heinbaugh. He is, in the characterization of Smith v. Goguen, supra, a “hard core violator,” and as such the open lewdness statute may be constitutionally applied to him.

The order of the trial court quashing the indictment is reversed.

NIX, J., did not participate in the consideration or decision of this case. MANDERINO, J., filed a dissenting opinion.

1 . Act of December 6, 1972, P.L. 1482, effective July 6, 1973, 18 Pa.C.S.A. § 101 et seq.

2 . The indictment alleged that the appellee “did expose and exhibit his genital organs in a lewd manner openly in a certain place situate at the Kroger parking lot . ” Bfief for appellant at 8. The complaint amplifies the indictment by charging that the appellee, while seated in his automobile, was “masturbating in plain view.”

3 . This direct appeal is taken pursuant to the Appellate Court Jurisdiction Act of 1970, P.L. 673, No. 223, § 202(9), 17 P.S. 211.-202(9) (Supp.1975).

4 . See, e. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1973); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).

5 . Other jurisdictions which have faced the problem have similarly construed their lewdness statutes as codifying pre-existing common law. See, e. g., State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965); Bell v. State, 289 So.2d 388 (Fla.1973); cf. Commonwealth v. Balthazer, 318 N.E.2d 478 (Mass.1974).

6 . Courts which have construed the statute in light of the pre-existing common law have generally upheld its application. See Martin v. State, 534 P.2d 685 (Okl.Cr.App.1975), and cases cited in note 5 supra.