Commonwealth v. Stock

499 A.2d 308, 346 Pa. Super. 60, 1985 Pa. Super. LEXIS 7884
CourtSupreme Court of Pennsylvania
DecidedAugust 16, 1985
Docket01334
StatusPublished
Cited by20 cases

This text of 499 A.2d 308 (Commonwealth v. Stock) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Stock, 499 A.2d 308, 346 Pa. Super. 60, 1985 Pa. Super. LEXIS 7884 (Pa. 1985).

Opinions

CIRILLO, Judge:

An Allegheny County jury found Gary Stock guilty of selling two obscene magazines in violation of 18 Pa.C.S. § 5903(a)(2), and the court sentenced Stock to IDA to 23 months in prison, suspending the prison sentence on the condition that Stock pay $10,000 for the use of the county. Stock appeals, asserting that the court abused its discretion by imposing a manifestly excessive sentence, and that the obscenity statute is unconstitutional. For the following reasons, we affirm.

We first address Stock’s constitutional challenges to the obscenity law.

The portion of the statute Stock was charged with violating states:

(a) Offenses defined. — No person, knowing the obscene character of the materials involved, shall:
(2) sell, lend, distribute, exhibit, give away or show any obscene materials to any person 17 years of age or older or offer to sell, lend, distribute, exhibit or give away or show, or have in his possession with intent to sell, lend, distribute, exhibit or give away or show any obscene materials to any person 17 years of age or older, or knowingly advertise any obscene materials in any manner____

Stock first argues that the statute is unconstitutionally overbroad because its proscription on “showpng]” obscene materials invades spheres of privacy protected by the First, [66]*66Ninth, and Fourteenth Amendments to the United States Constitution and Article 1, § 7 of the Pennsylvania Constitution.

Stock relies on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), wherein the United States Supreme Court held that a state cannot make mere private possession of obscene matter a crime, because such a regulation would intrude on rights of privacy protected by the First and Fourteenth Amendments. Stock contends that the Pennsylvania statute as drawn would prohibit a husband from “showing” obscene materials to his wife in the privacy of their home, thus violating the constitutional limitations set down in Stanley.

Stock was not prosecuted for privately “showing” obscene materials to his wife, but for publicly selling them from an adult bookstore. He does not assert that the provisions of the statute are unconstitutional as applied to commercial sales of obscene material. Thus, preliminarily we need to address whether Stock has standing to raise this issue.

A traditional principle of constitutional adjudication is that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may be applied unconstitutionally to others in situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, where First Amendment rights are involved, a litigant may attack the facial overbreadth of a statute in regulating free expression even where his own rights are not directly affected by the asserted overbreadth, based on the judicial assumption that the statute’s very existence might have a “chilling effect” on the exercise of First Amendment freedoms by persons not before the court. See id. Thus, we will entertain Stock’s contention that the Pennsylvania obscenity statute is unconstitutionally overbroad on its face. See also Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978); American Booksellers Association v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984).

[67]*67In addressing Stock’s overbreadth challenge, we bear in mind that the judiciary must accord a strong presumption of constitutionality to the acts of the legislature as a coequal branch of government. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). To overcome this presumption, the person challenging the constitutionality of a statute shoulders the heavy burden of demonstrating that the statute clearly, palpably, and plainly violates the constitution. Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981); Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985) (petition for allocatur filed); Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984).

We must also premise our discussion on the observation that obscenity is not a constitutionally protected mode of expression. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). This principle is important here because of the rule of constitutional jurisprudence that a statute properly regulating unprotected conduct will not be voided as overly broad unless the overbreadth is substantial judged in relation to the statute’s plainly legitimate sweep. Broadrick, supra; American Booksellers, supra.

Moreover, facial overbreadth will not be invoked as grounds for invalidating a statute when a limiting construction can be placed on the challenged statute. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); DeFrancesco, supra.

This said, we concede at the outset that Section 5903(a)(2) would appear to be violative of the right to privacy recognized in Stanley, if the statute were construed as making criminal the mere private showing of obscene materials between spouses in the confines of their home. Stanley clearly established that there is a zone of protected privacy in the home upon which the government cannot infringe without trampling the constitutional rights of the individual; thus, in Stanley itself the state could not prosecute the [68]*68defendant merely for knowingly having an obscene film in his home. But cf. United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (protected right to possess obscene materials in privacy of one’s own home does not give rise to correlative right to sell or give it to others); United States v. Grito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (no zone of constitutionally protected privacy follows obscene materials when they are moved outside the privacy of the home).

However, reviewing the Pennsylvania statute in light of the principles we have enunciated, we are led to conclude that the word “show” as used in the statute should not be read so broadly as to take within its sweep mere private showings of obscene materials between consenting couples in their homes. Rather, we interpret the statute as prohibiting public “shows” of obscene materials, or the showing of such materials for commercial gain.

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Commonwealth v. Stock
499 A.2d 308 (Supreme Court of Pennsylvania, 1985)

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Bluebook (online)
499 A.2d 308, 346 Pa. Super. 60, 1985 Pa. Super. LEXIS 7884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-stock-pa-1985.