Commonwealth v. Rodgers

327 A.2d 118, 459 Pa. 129, 1974 Pa. LEXIS 456

Opinions

OPINION

EAGEN, Justice.

On June 24, 1970, the appellant, Constance Rodgers, was convicted by a jury in Lancaster County on two criminal indictments: (1) charging the possession and sale of a dangerous drug in violation of Section 780-4 of the Drug, Device and Cosmetic Act, Act of September 26, 1961, P.L. 1664, § 4, as amended, 35 P.S. § 780-4; and (2) charging the possession with intent to sell obscene books and films in violation of the Act of June 24, 1939, P.L. 872, § 524, as amended, 18 P.S. § 4524.¹ A motion for a new trial or in arrest of judgment was denied, and a prison sentence of six to twelve months was imposed on each indictment the sentences to run concurrently.² On appeal, the Superior Court affirmed the judgments with a “per curiam” order. Judge Hoffman filed a dissenting opinion in which Judges Spaulding and Packel joined. See 222 Pa.Super. 490, 295 A.2d 158 (1972).³ We granted allocatur.

Initially, it is urged a new trial is required, because of three alleged errors in the trial court’s instructions to the jury. Only one such assignment of error requires discussion. The other two are without a semblance of merit.

At trial, the defendant introduced in evidence the testimony of several so-called character witnesses to establish her prior good reputation. In about the middle of its charge, after discussing the import of this testimony, the trial court stated, “But you must be convinced beyond a reasonable doubt, including that of good reputation, that the Defendant is innocent before you can acquit her.” This, of course, was error and would require a new trial if it were the only passage in the charge on the burden of proof, which it is not.

The record discloses that in the beginning of its charge, the court instructed the jury, “The Defendant in this case comes before you presumed to be innocent and the burden rests upon the Commonwealth to prove her guilty beyond a reasonable doubt.” Additionally, at the conclusion of the charge, the court, at the specific request of the defendant, instructed the jury as follows: [I] f, after consideration of all the evidence presented in this case, a reasonable doubt exists in the minds of the jury as to the innocence or guilt of the Defendant, the Defendant is entitled to the benefit of this doubt and must be acquitted.”

In a multitude of decisions, this Court has ruled that in evaluating the correctness of instructions to a trial jury, the charge must be read and considered as a whole, and it is the general effect of the charge that controls. For example, see Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973); Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Heasley, 444 Pa. 454, 281 A.2d 848 (1971), and Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970). After reading and considering the instant charge in its entirety, we are completely satisfied the jury was not misled as to where the burden of proof of guilt rested. We note also, that no objection or exception of any nature was entered to the charge, indicating defense counsel was satisfied the court had made it clear to the jury that the burden of proving guilt of either or both charges was upon the Commonwealth beyond a reasonable doubt. Under the circumstances, the apparent inadvertence by the trial court, now complained of, is not sufficient grounds for a new trial. Compare Commonwealth v. Fell, supra; Commonwealth v. Zapata, supra; Commonwealth v. Heasley, supra; Commonwealth v. Franklin, supra; Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970), and Commonwealth v. Newman, 276 Pa. 534, 120 A. 474 (1923).

The remaining assignment of error we find necessary to discuss concerns the validity of the defendant’s conviction of possession with intent to sell obscene books and films. The books and films were introduced into the evidence at trial and were examined by both the jury and the trial judge. In relevant part, the court instructed the jury “there are three concurring things that must take place in order to establish literature or films as obscene. It must be established that the dominant theme of the material taken as a whole appeals to the prurient interest in sex; the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and the material is utterly without redeeming social value.” ⁴ However, no expert testimony was introduced at trial to show the books and films involved met any of these criteria. It was the position of the Commonwealth that the books and films spoke for themselves and from an examination thereof, the jury could properly determine whether the books and films affronted “contemporary community standards relating to the description or representation of sexual matters.” Memoirs, supra, note 4, 383 U.S. at 418, 86 S.Ct. at 977.

The question before us instantly is, “Whether the defendant’s constitutional safeguards were protected in regard to the alleged evidence consisting of the obscene material, by the complete failure of the Commonwealth to produce any expert testimony whatsoever as to community standards in regard to obscenity.” This question of law had been an open question and never decided by the United States Supreme Court until its decision in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 447 (1973), decided on June 21, 1973. In that decision, the Court held that there was no error in the Commonwealth’s failure “to require ‘expert’ affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence [citations omitted]. The films, obviously, are the best evidence of what they represent.” Paris Adult Theatre I, supra, 413 U.S. 49, 93 S.Ct. at 2634. The Court adopted the viewpoint that “ ‘hard core pornography . . . can and does speak for itself.’ ” id. at 55, 93 S.Ct. at 2634 n. 6 (quoting from United States v. Wild, 422 F.2d 34, 36 (2d Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971)).

However, during the interval between the Roth decision and the decision in Paris Adult Theatre I, state courts were forced to speculate as to the open question of whether the due process clause of the Fourteenth Amendment requires that the prosecution produce evidence of the challenged materials’ patent offensiveness, prurient appeal and lack of redeeming social value. Without an authoritative resolution by the United States Supreme Court, we decided in Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782 (1972), that the “demands of due process” mandate “that contemporary community standards will have to be established [by expert testimony].” Id. at 377, 288 A.2d at 789. We no longer maintain this position. To the contrary, the United States Supreme Court held in Paris Adult Theatre I, that expert testimony as to community standards is not constitutionally required. The Court stated, in pertinent part:

“No such assistance is needed by jurors in obscenity cases; indeed the ‘expert witness’ practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony.”

413 U.S. at 49, 93 S.Ct. at 2634 n. 6. See also United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973); United States v. Miller, 482 F.2d 1379 (9th Cir. 1973), and United States v. One Reel of Film. Gerard Damiano Productions, Inc., 481 F.2d 206 (1st Cir. 1973).

Our decision today is cognizant of the continuing duty of this Court in an area bordering First Amendment guarantees to make an ad hoc, case-by-case determination of whether trial exhibits are legally obscene. See Miller v. California, supra, note 4, 413 U.S. 15 at 24, 93 S.Ct. at 2615; Kois v. Wisconsin, 408 U.S. 229, 231-232, 92 S.Ct. 2245, 2247, 33 L.Ed.2d 312 (1972), and Roth v. United States, supra note 4, 354 U.S. at 497-498, 77 S.Ct. at 1316 (Harlan, J., concurring and dissenting). See also Commonwealth v. LaLonde, supra 447 Pa. at 372 n. 8, 288 A.2d at 786 n. 8. We have viewed the books involved and are convinced beyond any doubt the jury needed no expert guidance in determining if this material was obscene in the constitutional sense. These “books” titled “Sex Orgies” No. 1 through 10, containing no legend, included photograph after photograph in color, and approximately five to eight inches in size, graphically depicting scenes of sexual acts participated in by one male and two females. The photographs explicitly depicted acts of heterosexual intercourse, homosexual cunnilingus by the two females, various degrees of penetration, cunnilingus, fellatio, and anal sodomy. Camera angles and close-ups give maximum display to the dimensions of the genitalia during the sexual activity. To say the jury needed expert help to decide if this material is “obscene” borders on the ridiculous.

The order of the Superior Court is affirmed.

POMEROY, J., concurs in the result. MANDERINO, J., dissents. ROBERTS, J., filed a dissenting opinion in which NIX, J., joins.

1 . “Whoever sells, ... or offers to sell ... or has in his possession with intent to sell . . . any obscene literature, book, ... or any written or printed matter of an obscene nature, ... is guilty of a felony. . . .

“ ‘Obscene,’ as used in this section, means that which, to the average person applying contemporary community standards, has as its dominant theme, taken as a whole, an appeal to prurient interest.”

2 . The trial court “allowed a supersedeas on condition an appeal is filed promptly.”

3 . Judges Hoffman, Spaulding and Packel would reverse the judgment imposed on the conviction of possession with intent to sell obscene books and films only.

4 . This definition of obscenity was in accord with the views of five justices of the Supreme Court of the United States, as expressed in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). But, see and compare diverging views of the Court in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). Finally, see the new definition of obscenity announced on June 21, 1973, in Miller v. State of California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).