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.
Louis LaLonde, Charles Mitchlen and William Schrin were convicted in a non-jury trial in Allegheny
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
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 ...