Commonwealth v. Tau Kappa Epsilon

560 A.2d 786, 385 Pa. Super. 247
CourtSupreme Court of Pennsylvania
DecidedJune 16, 1989
Docket393
StatusPublished
Cited by6 cases

This text of 560 A.2d 786 (Commonwealth v. Tau Kappa Epsilon) 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. Tau Kappa Epsilon, 560 A.2d 786, 385 Pa. Super. 247 (Pa. 1989).

Opinions

WIEAND, Judge:

The appellants are eleven fraternities at Penn State University.1 They were tried by a jury and were found guilty of furnishing beer to minors in violation of section 493(1) of [250]*250the Liquor Code, Act of April 12, 1951, P.L. 90, art. IY, § 493, as reenacted and amended by the Act of June 29, 1987, P.L. 32, No. 14, § 81, 47 P.S. § 4-493(l).2 Post-trial motions were dismissed. Thereafter, Tau Kappa Epsilon was sentenced to pay a fine of five hundred ($500) dollars, to perform two hundred (200) hours of charitable service, and was placed on probation for a period of one year. The remaining ten fraternities were sentenced to one year of probation, to pay a fine of two hundred ($200) dollars, and to perform fifty (50) hours of charitable service. On direct appeal from the judgments of sentence, appellants argue (1) that the Commonwealth failed to prove that the beverages served to minors were beer; (2) that the entries by police into the fraternity houses were illegal and that evidence obtained as a result thereof should have been suppressed; and (3) that the trial court should have granted a mistrial because of statements made by the prosecuting attorney during closing argument to the jury. We find no basis for disturbing the jury's verdicts and affirm the judgments of sentence.

As part of a general investigation, Laurie Hazenstab and Ann Henry, members of the State College Bureau of Police Services, made visits to off-campus fraternity houses during October and November, 1986, to determine whether alcoholic beverages were being furnished to minors. While dressed in street clothes they would enter randomly selected fraternity houses at which social functions appeared to be underway. During the course of the investigation they entered twelve fraternity houses, gaining admission by showing an expired Penn State identification card or sign[251]*251ing a register.3 At several houses, admissions were wholly unrestricted. When inside, the officers’ practice was to move toward the bar, where they were served a beverage which looked and tasted like beer and was served from a tap in plastic cups of a type furnished by distributors. Hazenstab and Henry then observed the persons who were being served at the bar. When they observed someone who appeared to be underage, they would keep that person under surveillance until he or she left the fraternity house. One of the officers would then follow, and the other would signal uniformed officers who were waiting outside the house. The suspected minor was then stopped and asked for identification and age. Several minors were convicted or entered pleas of guilty to underage drinking as a result of the investigation, and charges were brought against the twelve fraternities for furnishing beer to minors.

In determining the sufficiency of the evidence to support a finding that the beverages supplied to the minors were beer,4 we apply the general standard of review and decide

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). See also: Commonwealth v. Sabharwal, 373 Pa.Super. 241, 243, 540 A.2d 957, 958 (1988); Commonwealth v. Quarles, 361 Pa.Super. 272, 280-281, 522 A.2d [252]*252579, 583 (1987); Commonwealth v. Morton, 355 Pa.Super. 183, 184, 512 A.2d 1273, 1274 (1986).

Appellants rely on Commonwealth v. Erney, 212 Pa.Super. 174, 239 A.2d 818 (1968), where the Superior Court held that testimony alone of minors that they had been served beer was insufficient to support a conviction under this section. The Court reasoned as follows:

Article IV, § 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, Art. IV, § 493, as amended, 47 P.S. § 4-493(1), provides that it shall be unlawful “for any * * person to * * * furnish or give any * * * malt or brewed beverages * * * or to permit any * * * malt or brewed beverages to be * * * furnished or given * * * to any minor * * *.”
Article I, § 102, defines “malt or brewed beverages” as “any beer, lager beer, ale, porter or similar fermented malt beverage containing one-half of one per centum or more of alcohol by volume, by whatever name such beverage may be called.” (Emphasis added.)
The Commonwealth made no effort to prove that the beverage was a “malt or brewed beverage” as defined in the Code, apparently being content to rest on statements by the minors involved that they were served “beer” and that they saw “beer” being served to others.

Id., 212 Pa.Superior Ct. at 176, 239 A.2d at 818-819. But see: Appeal of Charsuner Bar Corp., 68 Pa.Cmwlth. 382, 449 A.2d 106 (1982) (in proceeding to suspend liquor license, testimony of minors that they were served beer, daiquiris and kaluha and cream was sufficient to support finding that licensee served alcoholic beverages to minors in violation of § 493(1) of Liquor Code). Appellants contend, therefore, that the Commonwealth’s evidence was inadequate to establish that the “beer” which they served to minors contained at least one-half of one percent of alcohol by volume.

In this case, however, the Commonwealth did not rely solely on the testimony of the minors. In addition to their testimony that they asked for beer, Officer Hazenstab, who had been served the same beverage, testified that the [253]*253beverages served by appellants looked and tasted like beer and, in her opinion, were beer. Specifically, Officer Hazenstab testified as follows:

Q Now what would you do with your particular glass of beverage?
A After we observed the — what we suspected of being minors — Officer Henry and I would approach the bar and ask for a beer. We would be. served, and—
Q Did it come out of the same tap as the beer that was served to the minor?
A Yes.
Q Do you want to continue.
A We would request a beer, which we would be served. And we would take a few tastes of it and see what — make sure it was beer.
We would then somewhat follow the suspected minor in the fraternity to — we always maintained an eye shot of the individual. And basically waited until they were ready to leave.
Q Now, just for the sake of detail, would you describe what kind of beverage was coming out of the tap system? What color was it? What did it—
A Okay. I would describe beer as an amber color, light amber color. When poured from a tap system, it produces a white foam on the top of the liquid, on the top of the cup.

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560 A.2d 786, 385 Pa. Super. 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-tau-kappa-epsilon-pa-1989.