decided: March 21, 1972.
LALONDE ET AL., APPELLANTS
Appeal from order of the Superior Court affirming the judgments of the Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1968, No. 211, in case of Commonwealth of Pennsylvania v. Louis LaLonde, Charles Mitchlen, William Schrin.
Marjorie H. Matson, for appellants.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. The former Mr. Chief Justice Bell took no part in the consideration or decision of this case. The former Mr. Justice Barbieri took no part in the decision of this case. Concurring Opinion by Mr. Justice Roberts.
[ 447 Pa. Page 365]
Louis LaLonde, Charles Mitchlen and William Schrin were convicted in a non-jury trial in Allegheny
[ 447 Pa. Page 366]
County of illegal possession and sale of obscene literature in violation of Section 524 of the Act of June 24, 1939, P. L. 874, as amended, 18 P.S. § 4524.*fn1 Post-trial motions were denied and sentence was imposed. On appeal the Superior Court affirmed the judgments without opinion. Judges Hoffman and Spaulding noted a dissent. See 218 Pa. Superior Court 805, 275 A.2d 394 (1971). We granted allocatur.
The events recounted at trial began on October 31, 1967, with the purchase of a paperback book entitled "Queenie" by Detective Regis Holleran of the Pittsburgh Police Department from Louis LaLonde, a salesman-employee of the Mello Cigar Store, a Pittsburgh establishment owned by appellant Schrin.*fn2 On November 9th, Holleran returned to the store and purchased a second book entitled "The Hypocrite." This transaction was made with appellant Mitchlen, who sold the book without comment.
The detective later consulted with the police legal advisor and a representative of the district attorney's office, both of whom read the books and advised the prosecution which was subsequently initiated and which culminated in the instant convictions.
At trial both books were introduced as exhibits and the text was incorporated into the record. In addition
[ 447 Pa. Page 367]
there was oral testimony from the police officer who had purchased these items. He described the premises where the books were offered for sale, the manner in which they were displayed and the circumstances surrounding the purchase. No other evidence was proffered by the Commonwealth on whether the books were obscene vel non in the constitutional sense.
Appellants attempted to rescue the books through the expert testimony of Dr. Maurice Serul, a psychiatrist at the University of Pittsburgh specializing in human sexuality. The doctor testified that in his opinion neither book was obscene and that both had redeeming social value from a clinical point of view. This for the reason that pornography "serves as a method of draining off sexual tensions and sexual impulses" which might otherwise be expressed in more harmful ways, as for example by the commission of sex crimes.*fn3
It is appellants' contention that reversal of the instant convictions is required for two reasons: first, because the Commonwealth failed to prove that these books were obscene in the constitutional sense, and second, because the Pennsylvania Obscenity Statute is unconstitutional on its face and as applied in the circumstances of this case.
We reverse for the reasons stated hereinafter which are limited solely to the issue of failure of proof.
[ 447 Pa. Page 368]
In a most able opinion the lower court delineated the confusing state of obscenity law which seems to us akin "to a riddle wrapped in a mystery inside an enigma." Writing for the court en banc, Judge McLean said: "There was no expert testimony presented by the Commonwealth, and the only real evidence of obscenity was the books themselves. However, once the trial judge concluded that it is still legally possible for obscenity to occur, he concluded that these books must necessarily be obscene, for he could not imagine what else might be done to make either of the books 'more obscene.' In other words, if there is such a thing as an obscene narration, this has to be it, and if this is not it, then there is none."
However, guided by our decision in Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840 (1967),*fn4 a comparison of the challenged books to other
[ 447 Pa. Page 369]
books which have been held entitled to the protection of the First Amendment by the Supreme Court of the United States leads to the inescapable conclusion that at a minimum we are presently precluded from sustaining these convictions by following that salutary line of cases which holds that when confronted with hard core pornography, no proof other than the viewing is required to determine the question of obscenity vel non. See Morris v. United States, 259 A.2d 337 (D.C. App. 1969); Hudson v. United States, 234 A.2d 903 (D.C. App. 1967); Donnenberg v. State, 1 Md. App. 591, 232 A.2d 264 (1967); United States v. Gower, 316 F. Supp. 1390 (1970); United States v. Wild, 422 F. 2d 34 (2d Cir. 1969).*fn5
In recent years the United States Supreme Court has on at least twenty-nine occasions reversed obscenity convictions and determinations involving various kinds of expression (books, photo-magazines, films, etc.) on the authority of its cryptic per curiam opinion in
[ 447 Pa. Page 370]
previously been condemned by the eminent Federal Jurist, Charles E. Wyzanski, Jr., in 358 F. 2d 935, 936 (1966) as follows: "[T]he pages set forth, in the form of a novel, a tale exclusively devoted to the sexual adventures of its principal characters. Adulteries, seductions, and orgies are the only events of importance. The contacts described include not only sexual intercourse, but sodomy and other perversions. There is not any serious effort to portray the reality of cultural or social conditions of even the most neurotic or sordid portion of the population." In United States v. West Coast News Company, 357 F. 2d 855, 858 (1966), the Sixth Circuit Court of Appeals characterized the book "Sex Life of a Cop" in the following manner: "Without palliating interruption, the story moves quickly from one sexual enterprise to another. So numerous are these events that even the practiced skill of the author runs out of fresh imagery and dully repeats his supply of leering adjectives." The court thereupon concluded that "we know hard core pornography when we see it." Id. at 858. The decision was reversed in Aday v. United States, 388 U.S. 447, 87 S. Ct. 2095 (1967). More recently in Hoyt v. Minnesota, 399 U.S. 524, 90 S. Ct. 2241 (1970), the Supreme Court overturned convictions for selling three purportedly obscene books*fn7 which had been earlier characterized by the Supreme Court of Minnesota as involving a "theme [which] is pointless save as it serves to relate the characters to repeated accounts of lewd and degrading episodes. They deal with filth for the sake of filth." 174 N.W. 2d 700, 702 (1970).
Believing as we do that the materials under scrutiny do not reach that plateau of degradation which would subject them to summary proscription under the
[ 447 Pa. Page 372]
rationale of cases like Morris v. United States, supra, we now turn our attention to the independent evaluation which we are mandated to make on the issue of whether these books are obscene.*fn8
The overriding difficulty which here confronts us is the absence of any evidence besides the books themselves. Hence, we find ourselves in the same legal cul de sac which recently confronted the Fifth Circuit Court of Appeals in United States v. William Groner, d/b/a Lucky Distributors, No. 71-1091 (C.A. 5, filed January 11, 1972).*fn9
There, as here, the prosecuting authorities' only evidence was certain books alleged to be obscene. This evidentiary predicament caused the court [per Thornberry, J.] to complain that: "Knowing the legal test for obscenity and applying the same in the light of recent Supreme Court decisions, however, are two entirely different matters. We are completely incapable of applying the test in the instant case. Without some guidance, from experts or otherwise, we find ourselves unable to
[ 447 Pa. Page 373]
apply the Roth standard with anything more definite or objective than our own personal standards which should not and cannot serve as a basis for either denying or granting first amendment protection to this or any other literature."
The requirement of evidence on the elements of obscenity has been adopted by several state and federal courts over the past few years, no doubt because it lends a measure of objectivity to the exquisite vagueness of the Roth-Memoirs test. See, for example, Woodruff v. State, 11 Md. App. 202, 273 A.2d 436 (1971); In Re Seven Magazines, 268 A.2d 707 (S. Ct. R. I. 1970); Keuper v. Wilson, 111 N.J. Super. 489, 268 A.2d 753 (1970); In Re Giannini, 69 C. 2d 563, 72 Cal. Rptr. 665, 446 P. 2d 535 (1968); Donnenberg v. State, 1 Md. App. 591, 232 A.2d 264 (1967); United States v. Groner, supra; United States v. Klaw, 350 F. 2d 155 (1965).*fn10
Elsewhere it has been rejected on the ground that obscenity vel non is an ultimate fact issue to be decided by the trier(s) of fact alone without opinion evidence. Stroud v. State, Ind. App. , 273 N.E. 2d 842 (1971).*fn11 See also, Lockhart & McClure, Censorship
[ 447 Pa. Page 374]
of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5 (1960), wherein is espoused the notion that appellate judges are as capable as any expert of determining whether material is obscene.
The United States Supreme Court has never confronted directly the issue of whether there is any need for expert or other evidence to establish the elements of the Roth-Memoirs test and has in fact dealt with the issue but once and then in a most peripheral fashion.
In Smith v. California, 361 U.S. 147, 80 S. Ct. 215 (1959),*fn12 Mr. Justice Frankfurter in a concurring opinion was given to observe at page 165:
"[C]ommunity standards or the psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts. . . .
"There is no external measuring rod for obscenity. Neither . . . is its ascertainment a merely subjective reflection of the taste or moral outlook of individual jurors or individual judges. . . . Their interpretation ought not to depend solely on the necessarily limited, hit-or-miss, subjective view of what they are believed to be by the individual juror or judge. It bears repetition that the determination of obscenity is for the juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of 'contemporary community standards.'"
[ 447 Pa. Page 375]
Building upon this dictum, the Supreme Court of California in In Re Giannini, supra, declared the necessity in that jurisdiction for expert evidence to establish community standards in obscenity prosecutions. The convictions of a topless dancer and nightclub manager were then set aside because the prosecution failed to introduce any evidence of community standards either that the dancer's conduct appealed to prurient interest or offended contemporary standards of decency. Writing for the majority, Justice Tobriner said: "Relying principally on the well established doctrine that jurors should not be endowed with the prerogative of imposing their own personal standards as the test of criminality of conduct, we hold that expert testimony should be introduced to establish community standards. We cannot assume that jurors in themselves necessarily express or reflect community standards; we must achieve so far as possible the application of an objective, rather than a subjective determination of community standards. An even handed application of the criminal law, even with evidentiary guidance [citation omitted] is sufficiently difficult in an area so confusing and intricate as obscenity. To sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror."*fn13 69 C. 2d at 574-75, 72 Cal. Rptr. at 663, 446 P. 2d 543.
[ 447 Pa. Page 376]
As was alluded to earlier, lack of probative evidence on the question of obscenity also has the added ramification of rendering the task of the review court wellnigh impossible. As the California court noted: "[E]ven if the jury should be deemed to be a metaphysical embodiment of the 'community' and therefore intrinsically cognizant of community standards, proof of community standards would nevertheless be indispensable to effective appellate review. An appellate court must reach an independent decision as to the obscenity of the material [citation omitted]. Since an appellate court certainly does not in any sense compose a cross-section of the community, it cannot effectively carry out this function in the absence of evidence in the record directed toward proof of the community standard." 69 C. 2d 576, 72 Cal. Rptr. 664, 446 P. 2d 544. The dilemma thus created drew the following comment from Judge Thornberry in United States v. Groner, supra. "This Court finds itself in the same position as that of the jury in such a case. We cannot take judicial notice, without even a scintilla of evidence, of what constitutes the community standard of decency at this or any other time. If such a standard exists at all, we would expect that it would be in constant evolutionary or even revolutionary flux, the fact of which militates
[ 447 Pa. Page 377]
against our exercising uninformed judgment at any particular point in time. At best it would be a matter of pure chance as to whether we as a Court, or as individuals left to our own devices and without the aid of evidence, could determine the correct standard."
Therefore, with the hope of adding a tangible measure of objectivity to the determination of obscenity vel non, we adopt the rule that at least as to other than hard core pornography, there must be introduced by the prosecution evidence of the challenged material's prurient appeal and utter lack of redeeming social value as well as its patent offensiveness. Implicit in such proof is the fact that contemporary community standards will have to be established.*fn14 Nothing in the aforementioned requirements can or should be interpreted to displace the function of the judge or jury in determining the ultimate question of whether a particular book is obscene.
In essence our action today does nothing more than meet the demands of due process. The penalties for violating the criminal obscenity law of this state encompass the loss of liberty and/or fine.*fn15 We are asking no more than that the Commonwealth prove the elements of the offense as it must do in every other area of criminal law. Faithfulness to the existing framework of law, both constitutional and criminal, demands that we ask this much and accept nothing less.
[ 447 Pa. Page 378]
The order of the Superior Court and the Judgments of the Court of original jurisdiction are reversed.
Order of Superior Court and judgments of court of original jurisdiction reversed.
Concurring Opinion by Mr. Justice Roberts:
I concur in the result and much of the majority opinion. I agree with the majority's conclusion that this case is governed by our decision in Commonwealth v. Dell Pub., Inc., 427 Pa. 189, 233 A.2d 840 (1967), cert. denied, 390 U.S. 948, 88 S. Ct. 1038 (1968), and that the controlling principles enunciated in Dell require that the judgment of sentence be reversed.
I disagree, however, with the dictum in the majority opinion which suggests that there is a different standard of proof applicable to cases involving "hard core pornography" as opposed to "mere obscenity." The First Amendment simply does not recognize any such distinction. Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304 (1957); Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975 (1966). Obviously, this Court is without power to do so.
The majority opinion correctly emphasizes that the challenged work can be declared obscene and constitutionally unprotected only if it fails to meet all three of the elements set forth in Roth v. United States, supra, and amplified by Memoirs v. Massachusetts, supra. See Commonwealth v. Dell Pub., Inc., 427 Pa. 189, 198-209, 233 A.2d 840, 845-51 (1967). Any work whose "dominant theme . . . taken as a whole appeals to a prurient interest in sex"*fn1 and whose "material is patently offensive because it affronts contemporary
[ 447 Pa. Page 379]
community standards"*fn2 and whose "material is utterly without redeeming social value"*fn3 is by definition "hard core pornography." But this determination can be made only after -- not before -- applying the Roth-Memoirs test to the challenged work.
Accordingly, in every instance involving allegedly obscene material the burden must be on the Commonwealth, as it is in all criminal cases, to come forth and produce appropriate evidence, see Commonwealth v. Dell Pub., Inc., supra, that the challenged work fails to meet each of the separate elements set forth in Roth and Memoirs and is therefore constitutionally obscene. This burden is not satisfied by the mere production of the allegedly obscene materials. The need for expert evidence to establish that the material is constitutionally unprotected under the Roth-Memoirs test was specifically recognized by this Court in Duggan v. Guild Theatre, Inc., 436 Pa. 191, 258 A.2d 858 (1969), where we observed: "The district attorney in his brief admits that he produced no expert testimony on this issue [contemporary standards], yet urges us to find that the movie affronts contemporary standards. This we cannot do. Courts of law are not capable of deciding what contemporary standards are, without the benefit of any evidence whatsoever." Id. at 201, 258 A.2d at 863; accord United States v. Klaw, 350 F. 2d 155, 167 (2d Cir. 1965); In Re Giannini, 69 C. 2d 563, 72 Cal. Rptr. 655, 446 P. 2d 535 (1968); House v. Commonwealth, 210 Va. 121, 169 S.E. 2d 572 (1969).
If the challenged work is in fact "hard core pornography", the Commonwealth should have no difficulty in sustaining its position. With this reservation, I concur in the result.