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decided: December 11, 1972.


Appeals from judgment of sentence of Court of Common Pleas of Blair County, Oct. T., 1968, No. 2 and Oct. T., 1969, No. 12, in case of Commonwealth of Pennsylvania v. Kenneth I. Amick.


Marjorie H. Matson, for appellant.

John Woodcock, Jr. and Clyde O. Black, II, Assistant District Attorneys, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., would affirm on the opinion of Judge Haberstroh. Watkins and Cercone, JJ., dissent.

Author: Hoffman

[ 223 Pa. Super. Page 238]

This appeal raises important and delicate constitutional questions concerning the seizure of allegedly obscene literature which led to the prosecution of appellant for possession of obscene matter with the intent to sell.

Appellant's book store in Altoona, Blair County, was the subject of two searches conducted by way of general search warrants under date of July 30, 1968 and June 26, 1969. Certain materials were seized on each occasion. A Motion to Suppress was refused on June 5, 1970 by the Court below. At the election of appellant, the matters were tried before the Court without a jury, at which time both cases were consolidated.

At trial, Commonwealth introduced into evidence twenty-two exhibits, consisting of certain of the seized items and constituting a "sampling" of the 19 cartons of materials that had been confiscated as a result of both raids. In addition, Commonwealth presented the testimony of the prosecuting officer and four lay witnesses from Blair County, who concluded that, based upon their examination of some of the seized items, the literature was obscene. The competency of the witnesses was challenged by defense counsel, which objections were overruled.*fn1

Appellant was thereafter found guilty of the violations with which he was charged. The Court refused post-trial motions, and on July 13, 1971, sentenced appellant, imposing a fine of $15,000 plus costs, and setting terms of imprisonment on the two charges of four to eight months and seven to fourteen months, to run

[ 223 Pa. Super. Page 239]

    consecutively. Appellant was refused release on bail pending appeal, but this Court granted supersedeas upon the posting of a surety bond in the amount of $1,000.

Appellant contends that police unlawfully made mass seizures of material from his place of business, and that such seizures constituted an invasion of his First and Fourteenth Amendment rights. It is well-recognized that obscenity is not within the area of protected speech guaranteed by the First Amendment. Roth v. United States, 354 U.S. 476 (1957). The United States Supreme Court, in Marcus v. Search Warrant, 367 U.S. 717, 731 (1961), however, emphasized that ". . . under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity."*fn2 The Court rejected the contention that obscene literature was contraband, to be searched for and seized as if it were a gambling device, narcotic drug, or other contraband. Recalling the origin and purpose of the First Amendment, the Court stated at p. 729: "The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression."

In a case following Marcus, Justice Brennan writing for the Court found a procedure, whereby a stock of books was seized pursuant to a search warrant issued by an authority in an ex parte proceeding, constitutionally deficient, saying, "For if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgement of the right of the public

[ 223 Pa. Super. Page 240]

    in a free society to unobstructed circulation of nonobscene books." Quantity of Books v. Kansas, 378 U.S. 205, 213 (1964); see also Freedman v. Maryland, 380 U.S. 51 (1965).

Like Quantity of Books, supra, the instant case presents a situation where seizures were made pursuant to a general search warrant, and without a prior adversary proceeding to determine obscenity.*fn3

[ 223 Pa. Super. Page 241]

Applying these principles, our Pennsylvania courts have repeatedly struck down "prior restraints". In Smith v. Crumlish, 207 Pa. Superior Ct. 516, 218 A.2d 596 (1966), our Court held that the seizure of a movie without a prior adversary hearing was unconstitutional. Citing the Supreme Court cases dealing with printed matter, discussed supra, we held that "only a judicial decision in an adversary proceeding ensures the necessary sensitivity to freedom of expression." (at p. 522). A number of Pennsylvania Supreme Court decisions have set down the same requirements to prevent abridgement of precious First Amendment rights, as enunciated in Smith v. Crumlish, supra. Duggan v. Page 241} 807 Liberty Avenue, Inc., 447 Pa. 281, 288 A.2d 750 (1972); Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968).

The import of these decisions is certainly that no committing magistrate without an adversary hearing can constitutionally issue a search warrant authorizing seizure of "obscene literature". Since this was what was done in the instant case, the seizure was constitutionally defective. The court below should have suppressed the evidence which was the subject-matter of appellant's convictions.

Therefore, we reverse the judgment of sentence, and order appellant discharged.*fn4


Judgment of sentence reversed and appellant discharged.

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