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COMMONWEALTH v. BAER ET AL. (03/23/67)

decided: March 23, 1967.

COMMONWEALTH
v.
BAER ET AL., APPELLANTS



Appeals from judgments of Court of Quarter Sessions of Luzerne County, Sept. T., 1963, Nos. 312, 312A, and 314, in case of Commonwealth v. Gerald F. Baer; and Same v. Virgil Serafine.

COUNSEL

Perry J. Shertz and Mitchell Jenkins, with them Rosenn, Jenkins & Greenwald, for appellants.

Thomas E. Mack, District Attorney, with him Richard M. Goldberg, Assistant District Attorney, and Arthur L. Piccone, First Assistant District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J. Montgomery, J., dissents and would affirm the judgments of sentence on the decision of the court below.

Author: Hoffman

[ 209 Pa. Super. Page 350]

Appellants Gerald Baer and Virgil Serafine operate tobacco and confectionery shops in the City of Wilkes-Barre. Each stocks a number of paperback books and

[ 209 Pa. Super. Page 351]

    magazines. In September of 1963, both men were charged with possessing with intent to sell and selling certain obscene publications in violation of the Act of June 24, 1939, P. L. 874, § 524, as amended, 18 P.S. § 4524.*fn1 Their cases were consolidated for trial in the Court of Quarter Sessions of Luzerne County, and a jury returned verdicts of guilty generally. Each of the appellants was fined $500 and costs.

The dispositive question on this appeal is whether the book and magazines involved were properly found to be obscene and therefore not entitled to protection under the First and Fourteenth Amendments. We conclude that the materials before us are not obscene and that the judgments must accordingly be reversed.

At the outset, we reject the Commonwealth's contention that this Court is bound by the jury's finding of "fact" that the questioned publications merit suppression. Since only "obscenity" is denied constitutional protection, the question whether a particular work is obscene necessarily entails a subtle issue of constitutional law. Jacobellis v. Ohio, 378 U.S. 184, 188 (1964).

As Justice Harlan eloquently stated, in his concurring opinion in Roth v. U.S., 354 U.S. 476, 497-98 (1957): "Every communication has an individuality

[ 209 Pa. Super. Page 352]

    and 'value' of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressible within constitutional standards. . . . I do not think that reviewing courts can escape this responsibility by saying that the trier of facts, be it a jury or a judge, has labeled the questioned matter as 'obscene,' for, if 'obscenity' is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate ...


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