Commonwealth v. Sullivan

61 Pa. D. & C.4th 280, 2003 Pa. Dist. & Cnty. Dec. LEXIS 147
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedFebruary 14, 2003
Docketnos. 498 of 2002 CR, 742 of 2002 CR, 553 of 2002 CR, 626 of 2002 CR and 628 of 2002 CR
StatusPublished

This text of 61 Pa. D. & C.4th 280 (Commonwealth v. Sullivan) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Sullivan, 61 Pa. D. & C.4th 280, 2003 Pa. Dist. & Cnty. Dec. LEXIS 147 (Pa. Super. Ct. 2003).

Opinion

MOTTO, J.,

The above captioned defendants each have pending before the court motions challenging the constitutionality of the statute under which they are charged, criminal use of a communications facility (18 Pa.C.S. §7512), and the sufficiency of the evidence relating to each charge. All defendants have agreed to have hearing on their pending motions con[282]*282solidated with a joint non-jury trial, held on stipulation of evidence, with the court to decide the motions and enter verdicts as appropriate.1

Those stipulations are as follows:

(1) Telephone conversations were intercepted and recorded by the authorities.

(2) The other speaker in all of these conversations was James Johnson and the said James Johnson was selling illegal substances during the time in question.

(3) Identification of all of the defendants’ voices and of all other voices recorded would be established by the Commonwealth’s testimony.

(4) The Commonwealth’s expert in the field of narcotics would testify in the manner set forth in the written stipulated testimony entered of record as exhibits.

(5) The crime lab report submitted regarding Anthony Moss would have been the only crime lab reports that would have been submitted at trial, and the various police reports submitted would be the substance of the testimony against defendant Moss.

(6) That each submitted packet of stipulated evidence shall be evaluated independent of all other defendants.

(7) That this court will, after examination of facts and law, issue a verdict by order of court.

All of the defendants contest the sufficiency of the stipulated evidence and the constitutionality of the stat[283]*283ute defining the charge of criminal use of a communication facility as a deprivation of due process.

The constitutional argument advanced in that the statute, criminal use of a communications facility, 18 Pa.C.S. §7512, violates due process in that it “is vague and fails to give fair warning as to what acts are prohibited.” Robert Sullivan’s brief in support of motion for judgment of acquittal, p. 3. Anthony Moss’s brief in support of motion for judgment of acquittal, p. 3. Dana Austin’s brief in support of motion for judgment of acquittal, p. 3. Subsection (a) (the substantive offense portion of the statute) reads as follows:

“(a) Offense defined. — A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the Act of April 14,1972 (RL. 233, no. 64), known as The Controlled Substance, Drug Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.”

In subsection (c) a “communication facility” is defined as a “public or private instrumentality used or useful in the transmission of signs, signals, writings, image, sounds data or intelligence” including but not limited to “telephone, wire, radio, electromagnetic, photo-electronic or photo-optical systems or the mail.” Criminal legislation must lay down a reasonably ascertainable and definite standard of guilt. A criminal statute must be definite to be valid, and a statute which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its mean[284]*284ing and differ as to its application is violative of due process. A criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute, or that is so indefinite that it encourages arbitrary and erratic arrests and convictions, is void for vagueness. Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). A lack of fair warning in the criminal statute of what conduct is prohibited will offend due process. United States v. Lanni, 335 F. Supp. 1060 (E.D. Pa. 1971), aff’d, 466 F.2d 1102 (3d Cir. 1972). However, there is no constitutional requirement that the statute proscribing the criminal conduct delineate what evidence is required to establish a violation of the statute in order to satisfy the due process requirement of specificity. United States v. Moses, 360 F. Supp. 301 (W.D. Pa. 1973). The constitutionality of 18 Pa.C.S. §7512 has not been passed upon by any reported decision of any court of this Commonwealth that the research of the court and counsel can disclose. However, the Commonwealth has directed the court to a federal statute, which is somewhat similar to the statute in question, which has been challenged on the basis of its constitutionality. The federal statute, 21 U.S.C. §843(b) provides as follows:

“It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this title or title III. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term communication facility means any and all public and private instrumentalities used or useful in the transmission of [285]*285writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.”

In U.S. v. Rogers, 755 F.2d 533 (7th Cir. 1985), the 7th Circuit Court of Appeals held that the foregoing statute was not unconstitutionally vague.

In Rogers, the defendant was found guilty of the aforementioned statute where defendant caused another, his co-conspirator, to place a telephone call to the Bahamas in order to arrange an illegal drug transaction. The defendant attacked the constitutionality of the statute on the basis that it was overly broad and vague. The court denied both of the defendant’s constitutional claims, but the court here will discuss the holding in Rogers only with respect to the vagueness claim, as the defendants here have not raised the claim that the statute is overly broad. In response to the void-for-vagueness argument, the Rogers court said the following at 755 F.2d at 11,12:
“[14] [15] Defendant also attacks section 843(b) as void-for-vagueness both on its face and as applied. In particular, he urges that the statute is vague both as to the means by which the crime of using a communication facility is established, [fnlO] and as to the intent necessary to prove a violation. The void-for-vagueness doctrine ‘requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited [and] in a manner that does not encourage arbitrary and discriminatory *544 enforcement.’ Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

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Related

Colautti v. Franklin
439 U.S. 379 (Supreme Court, 1979)
Kolender v. Lawson
461 U.S. 352 (Supreme Court, 1983)
United States v. John Philip Cerone, Sr.
452 F.2d 274 (Seventh Circuit, 1972)
United States v. David T. Dellinger
472 F.2d 340 (Seventh Circuit, 1973)
United States v. Bernard Feinberg
535 F.2d 1004 (Seventh Circuit, 1976)
United States v. Jerry R. Bohonus
628 F.2d 1167 (Ninth Circuit, 1980)
United States v. Cleveland R. Rodgers
755 F.2d 533 (Seventh Circuit, 1985)
United States v. Lanni
335 F. Supp. 1060 (E.D. Pennsylvania, 1971)
United States v. Moses
360 F. Supp. 301 (W.D. Pennsylvania, 1973)
Commonwealth v. Cotto
753 A.2d 217 (Supreme Court of Pennsylvania, 2000)
Commonwealth v. Murray
749 A.2d 513 (Superior Court of Pennsylvania, 2000)
Commonwealth v. Cunningham
375 A.2d 66 (Superior Court of Pennsylvania, 1977)
Commonwealth v. Mills
478 A.2d 30 (Supreme Court of Pennsylvania, 1984)
Commonwealth v. Brown
741 A.2d 726 (Superior Court of Pennsylvania, 1999)
R. J. Reynolds Tobacco Co. v. United States
410 U.S. 964 (Supreme Court, 1973)

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Bluebook (online)
61 Pa. D. & C.4th 280, 2003 Pa. Dist. & Cnty. Dec. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sullivan-pactcompllawren-2003.