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COMMONWEALTH v. DUNCAN (07/01/74)

decided: July 1, 1974.

COMMONWEALTH
v.
DUNCAN, APPELLANT



Appeal from order of Superior Court affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1971, No. 1876, in case of Commonwealth of Pennsylvania v. Leon Duncan.

COUNSEL

Leonard Sosnov, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Linda West Conley, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Nix took no part in the decision of this case. Dissenting Opinion by Mr. Justice Manderino. Mr. Justice Roberts joins in this dissenting opinion.

Author: Jones

[ 456 Pa. Page 496]

On November 23, 1971, appellant was tried by the court without a jury and was convicted of loitering and prowling under the Act of June 24, 1939, P. L. 872, § 418, as amended, 18 P.S. § 4418 (recodified as 18 Pa. S. § 5506). Following denial of post-trial motions, appellant was sentenced to two to twelve months' imprisonment. On appeal, the Superior Court affirmed with three judges dissenting.*fn1 We granted allocatur limited

[ 456 Pa. Page 497]

"to the constitutional issue of vagueness and the issue of determining the extent of Section 418 with respect to the use and meaning of the word 'around' in the statute."

The undisputed facts giving rise to this prosecution are that appellant entered the rear fire tower of St. Joseph's Hospital in Philadelphia on April 2, 1971, at approximately 9:25 p.m. after the end of visiting hours. In response to a call by a nurse who heard noise in the tower, the police proceeded to the area and arrested appellant at 9:30 p.m. on the third floor landing of the fire tower.

The statute under which appellant was convicted provides: "Whoever at nighttime maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor. . . ." Act of June 24, 1939, P. L. 872, § 418, as amended, 18 P.S. § 4418 (recodified as 18 Pa. S. § 5506). Because of the limitations placed on our grant of allocatur in this case, the presence or absence of maliciousness is not presently at issue. Rather, we must assume for our purposes that appellant was maliciously loitering and prowling when he was discovered in the fire tower of the hospital. Thus, we must now consider (1) whether or not this activity comes within the coverage of the statute and (2) whether or not the statute is unconstitutionally vague.

In arguing that the statute does not cover indoor prowling and loitering, the appellant has relied heavily on the principle of strict construction of penal statutes. In so doing, however, he has ignored the complementary principle that strict construction does not require "that the words of a criminal statute [be] given their narrowest meaning or that the lawmaker's evident intent [be] disregarded." Commonwealth v. Mason, 381 Pa. 309, 312, 112 A.2d 174, 175 (1955). In Mason, the appellant's

[ 456 Pa. Page 498]

    argument for a narrow definition of "inducing" under the Securities Act was rejected in favor of a broader, more encompassing definition. 381 Pa. at 313, 112 A.2d at 176. The appellant had argued that the alleged victim's concession that he had entered into the questioned transaction willingly precluded a finding of inducement on his part. The Court, however, concluded that the evidence supported a finding that the transaction "was brought about or effected or induced by defendant" and held that such facts would constitute "inducing." 381 Pa. at 313-14, 112 A.2d at 176. By so holding the Mason Court refused to adopt the narrowest ...


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