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COMMONWEALTH v. RODGERS (09/26/72)

decided: September 26, 1972.

COMMONWEALTH
v.
RODGERS, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of Lancaster County, Nos. 856 and 857 of 1970, in case of Commonwealth of Pennsylvania v. Constance Rodgers.

COUNSEL

William R. Bernhart, with him Austin, Speicher, Boland, Connor & Giorgi, for appellant.

George T. Brubaker, Assistant District Attorney, with him Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Hoffman, J. Spaulding and Packel, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 222 Pa. Super. Page 491]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

This is an appeal from appellant's convictions for possession and sale of dangerous drugs, and the possession and sale of obscene literature. Appellant contends that the lower court erred in failing to grant her motion for a new trial, and she raises five alleged errors in this appeal. I believe that one of appellant's specifications of error has merit, and I would therefore reverse the judgment of sentence and grant appellant a new trial.

Appellant contends that the Commonwealth did not prove that the allegedly obscene material "is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters." Duggan v. Guild Theatre, Inc., 436 Pa. 191, 258 A.2d 858 (1969). In accordance with Duggan the trial judge charged the jury that they would be able to find appellant guilty of possessing and selling obscene literature only if "three concurring

[ 222 Pa. Super. Page 492]

    things" were established: (a) "the dominant theme of the material taken as a whole appeals to the prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of ...


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