Commonwealth v. Jones

17 Pa. D. & C.4th 115, 1992 Pa. Dist. & Cnty. Dec. LEXIS 75
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedAugust 27, 1992
Docketno. 786 Criminal 1991
StatusPublished

This text of 17 Pa. D. & C.4th 115 (Commonwealth v. Jones) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Jones, 17 Pa. D. & C.4th 115, 1992 Pa. Dist. & Cnty. Dec. LEXIS 75 (Pa. Super. Ct. 1992).

Opinion

MILLER, J.,

On May 5, 1992, a jury found the defendant guilty of violating 18 Pa.C.S. §5903 relating to the display of obscene and other sexual materials. The defendant filed timely post-verdict motions in the nature of a motion for a new trial and motion in arrest of judgment. Both parties submitted briefs, and oral arguments were presented to this court on August 3, 1992. The issues are now before this court for disposition.

MOTION IN ARREST OF JUDGMENT

DE MINIMIS NATURE OF DEFENDANT’S CONDUCT

The proper post-verdict procedure to challenge a defect which appears of record in a criminal matter such as that which results from a lack of jurisdiction, a question of double jeopardy, a defective information or indictment or the insufficiency of the evidence used to convict the defendant is by a motion in arrest of judgment. Commonwealth v. Stark, 526 Pa. 1, 584 A.2d 289 (1990). In ruling upon such a motion, the court shall view all testimony which had been admitted into evidence in that light most favorable to the Commonwealth, as well as [117]*117giving the Commonwealth the benefit of all reasonable inferences to be drawn from that evidence. Commonwealth v. Groff, 378 Pa. Super. 353, 548 A.2d 1237 (1988).

The first issue briefed by counsel for the defendant is whether the court should arrest judgment because the conduct of the defendant was de minimis. According to the defendant’s argument, 18 Pa.C.S. §312(a) provides that a trial court shall dismiss the charges relating to conduct that is “within a customary license” or that “did not actually cause or threaten the harm or evil sought to be prevented ... or did so only to an extent too trivial to warrant the condemnation of conviction....”

The defendant was found guilty of violating 18 Pa.C.S. §5903(a)(l) which provides as follows:

“(a) No person, knowing the obscene character of the materials involved, shall:
“(1) Display or cause or permit the display of any explicit sexual materials as defined in subsection (c) in or on any window, showcase, newsstand, display rack, billboard, display board, viewing screen, motion picture screen, marquee or similar place in such manner that the display is visible from any public street, highway, sidewalk, transportation facility or other public thoroughfare, or in any business or commercial establishment where minors, as a part of the general public or otherwise, are or will probably be exposed to view all or any part of such materials.”

Subsection (c) defines explicit sexual materials as materials which are obscene or:

“(1) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors; or
[118]*118“(2) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (1), or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.” 18 Pa.C.S. §5903(c).

Testimony produced at trial established that defendant was a vendor at the Saylorsburg Flea Market in Hamilton Township, Monroe County. On August 3,1991, defendant had for sale, among other wares, two boxes of sexually oriented videotapes. The videotapes were placed on top of a table with each box containing a placard indicating what was contained within as well as the sales price. The videotapes were placed on end so that only one edge was visible to the potential viewer. Displayed on these edges were pictures of nude female torsos. The testimony of witnesses established that the videotapes were displayed in a manner such that minors walking by could see the depictions on the edges.

Counsel for the defendant argues in support of the instant motion that there was no evidence presented at trial which established that minors were actually harmed or threatened with harm by defendant’s conduct. Moreover, according to defense counsel, , the evidence established that defendant did not deliberately engage in any criminal conduct and that he was neither given a warning by police nor afforded the opportunity to cease the illegal activity.

In approaching the resolution of this matter, we are bound by the ruling already made on this precise issue by the Honorable Ronald E. Vican of this court. In a decision handed down on defendant’s omnibus pre-trial motions on March 12,1992, Judge Vican, while acknowledging that defendant’s de minimis argument was not [119]*119without some merit, still resoundingly rejected it as a basis to dismiss the charge under 18 Pa.C.S. §312(a). We, therefore, find that we are compelled to do the same.

On this basis, we hold that defendant’s motion in arrest of judgment on the grounds of the de minimis nature of defendant’s conduct must be denied.

STATUTORY VAGUENESS

In his motion and brief, the defendant challenges the constitutionality of 18 Pa.C.S. §5903(a)(l), asserting that it is vague and confusing and, hence, a denial of due process under both the U.S. Constitution and the Constitution of the Commonwealth of Pennsylvania.

Specifically, defendant challenges the apparent superimposition of an obscenity standard over a statute which was meant to apply only to the display of sexually explicit materials, resulting in the inability to determine what specific behavior is criminally proscribed.

In relevant part, 18 Pa.C.S. §5903(a) provides:

“(a) No person, knowing the obscene character of the materials involved, shall:
“(1) Display or cause or permit the display of any explicit sexual materials as defined in subsection (c) in or on any window, showcase, newsstand, display rack, billboard, display board, viewing screen, motion picture screen, marquee or similar place in such manner that the display is visible from any public street, highway, sidewalk, transportation facility or other public thoroughfare, or in any business or commercial establishment where minors, as a part of the general public or otherwise, are or will probably be exposed to view all or any part of such materials.”

[120]*120Subsection (c) defines explicit sexual materials as materials which are obscene or:

“(1) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors; or
“(2) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (1), or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.” 18 Pa.C.S. §5903(c).

Section 5903 of the Crimes Code was thoroughly analyzed by the Superior Court of Pennsylvania in the case of

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Related

Ginsberg v. New York
390 U.S. 629 (Supreme Court, 1968)
Commonwealth v. Phillips
580 A.2d 840 (Supreme Court of Pennsylvania, 1990)
Commonwealth v. Stark
584 A.2d 289 (Supreme Court of Pennsylvania, 1990)
Commonwealth v. Robin
218 A.2d 546 (Supreme Court of Pennsylvania, 1966)
Commonwealth v. Tharp
541 A.2d 14 (Supreme Court of Pennsylvania, 1988)
AM. BOOKSELLERS ASS'N, INC. v. Rendell
481 A.2d 919 (Supreme Court of Pennsylvania, 1984)
Commonwealth v. Groff
548 A.2d 1237 (Supreme Court of Pennsylvania, 1988)
Ginsberg v. New York
391 U.S. 971 (Supreme Court, 1968)

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Bluebook (online)
17 Pa. D. & C.4th 115, 1992 Pa. Dist. & Cnty. Dec. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-jones-pactcomplmonroe-1992.