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COMMONWEALTH v. BAER. COMMONWEALTH (10/09/69)

SUPREME COURT OF PENNSYLVANIA


decided: October 9, 1969.

COMMONWEALTH, APPELLANT,
v.
BAER. COMMONWEALTH, APPELLANT, V. SERAFINE

Appeal from order of Superior Court, Oct. T., 1966, Nos. 323, 324 and 325, reversing judgments of Court of Oyer and Terminer of Luzerne County, Sept. T., 1963, Nos. 312, 312A and 314, in cases of Commonwealth v. Gerald F. Baer, and Same v. Virgil Serafine.

COUNSEL

Jerry B. Chariton, Assistant District Attorney, with him Charles D. Lemmond, Jr., First Assistant District Attorney, and Blythe H. Evans, Jr., District Attorney, for Commonwealth, appellant.

Perry J. Shertz, with him Mitchell Jenkins, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Per Curiam

[ 436 Pa. Page 18]

The Order of the Superior Court is affirmed.

Disposition

Order affirmed.

[ 436 Pa. Page 19]

Concurring Opinion by Mr. Justice Roberts:

I am in complete agreement with the Court's disposition of these cases. It is appropriate, however, to observe that the scholarly opinion of Judge Hoffman, speaking for a majority of the Superior Court, see 209 Pa. Superior Ct. 349, 227 A.2d 915 (1967), was written before the United States Supreme Court's decision in Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414 (1967), and before this Court's decision in Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840 (1967), cert. denied, 390 U.S. 948, 88 S. Ct. 1038 (1968). Thus it should be pointed out that nothing in these two later cases casts any doubt on the Superior Court's determination in the instant cases. See Commonwealth v. Dell Publications, Inc., 427 Pa. at 201, 233 A.2d at 847.

In Redrup, supra, the Supreme Court noted: "In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. . . . In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. . . . And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States. . . ." 386 U.S. at 769, 87 S. Ct. at 1415. The same must be said of the cases now before us. See Commonwealth v. Baer, 209 Pa. Superior Ct. at 352, 356, 227 A.2d at 917, 919 (as to "pandering" and juveniles).

Dissenting Opinion by Mr. Chief Justice Bell:

I dissent, and would affirm the Judgments of Sentence of the Court of Quarter Sessions of Luzerne County. I believe that the books and publications possessed and sold by defendants were obscene and consequently they were properly convicted.

[ 436 Pa. Page 20]

In Memoirs v. Massachusetts, 383 U.S. 413, the Court said (page 418): "We defined obscenity in Roth in the following terms: '[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce :*fn1 it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

This is one of the least clear, one of the least definite, and one of the most unwise standards ever established. Probably not more than one person in 500 knows what "prurient" means. Moreover, the Supreme Court has not defined whether "community standards" means "national," "state-wide"*fn2 or a more localized state region; and the Court's last test is so nebulous and highly controversial that very few persons, no matter how experienced, expert and sincere, agree on the question of whether "the material is utterly without redeeming social value." Cf. also, Redrup v. New York, 386 U.S. 767, 771; Jacobellis v. Ohio, 378 U.S. 184; Kingsley International Pictures Corp. v. Regents of the University of the State of New York, 360 U.S. 684; Sunshine Book Co. v. Summerfield, 355 U.S. 372; Ginzburg v. United States, 383 U.S. 463.

[ 436 Pa. Page 21]


*fn1 Italics, mine.

*fn2 This is the most realistic and, I believe, the fairest. See Jacobellis v. Ohio, 378 U.S., supra, page 200 (minority Opinion of Mr. Chief Justice Warren, joined by Mr. Justice Clark); In Re Giannini, 69 Cal. 2d 563, 446 P. 2d 535, 72 Cal. Rept. 655.


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