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

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 ...


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