Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Miscellaneous Docket No. 73-00-2157, and M. C. No. 72-11-1713, in case of Commonwealth of Pennsylvania v. Victoria Ann Winkleman.
John M. Myers, Colie Chappelle, and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
David Richman, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Jacobs and Hoffman, JJ., concur in the result.
[ 230 Pa. Super. Page 266]
This is an appeal from the denial by the Court of Common Pleas of Philadelphia County, Criminal-Trial Division, of an appeal by way of Writ of Certiorari
[ 230 Pa. Super. Page 267]
from the Municipal Court of Philadelphia by the defendant-appellant, Victoria Ann Winkleman, after conviction in a non-jury trial of Public Indecency, Act of June 24, 1939, P. L. 872, § 519, 18 P.S. § 4519; and Obscene Exhibition, Act of June 24, 1939, P. L. 872, § 528; 1959, September 23, P. L. 945, § 1; 18 P.S. § 4528. She was sentenced to be incarcerated for ninety (90) days, pay $50.00 costs and a $500.00 fine. She had also been convicted of firearms violations from which no appeal was taken and sentence was suspended on that conviction.
The defendant was a "go-go" dancer performing at a Philadelphia nightclub. She was arrested on November 21, 1972, after one of her dancing performances and charged with the violations set forth above. Defendant's contention is that her convictions must be reversed because the sections of Pennsylvania's previous crime code are unconstitutional as violative of the First and Fourteenth Amendments of the United States Constitution in that the sections are overly broad and vague. The Commonwealth contends the sections are not constitutionally infirm since the defendant's dance was not conduct protected by the freedom of speech and expression provisions of the First Amendment as applied to the states by the Fourteenth Amendment.
The crime of Public Indecency is defined as the commission of the following acts: 18 P.S. § 4519: "Open lewdness, or any notorious act of public indecency, tending to debauch the morals or manners of the people . . ."
The crime of Obscene Exhibition is defined as follows: 18 P.S. § 4528: "Whoever gives or participates in . . . any dramatic, theatrical, operatic, or vaudeville exhibition, or the exhibition of fixed or moving pictures, of an obscene nature . . ."
"An exhibition shall be deemed obscene if, to the average person applying ...