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COMMONWEALTH v. BURAK (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
BURAK, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1969, No. 1958, and Aug. T., 1969, Nos. 760, 761 and 762, in case of Commonwealth of Pennsylvania v. Marvin Burak.

COUNSEL

Joseph D. O'Keefe, for appellant.

Douglas B. Richardson, Paul J. Sullivan, 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, submitted a brief for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j.

Author: Watkins

[ 232 Pa. Super. Page 501]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Section, by the defendant-appellant Marvin Burak, after conviction by a jury of charges of obscene exhibition, disorderly house, conspiracy to conduct an obscene exhibition and corrupting the morals of a minor child. The court below sustained a demurrer to the charges of indecent exposure and open lewdness. Post-trial motions were denied and the defendant was sentenced to not less than six months nor more than 23 months in prison on the conspiracy count and to consecutive 2 year periods of probation on the charges of obscene exhibition and corrupting the morals of a minor child.

On Appeal to this Court, the case was remanded for further argument. The court below arrested judgment on the charge of disorderly house and refused to arrest judgment on the other charges. This appeal followed.

At the outset we must acknowledge the problems faced by trial courts, prosecuting attorneys and litigants in this area of the law which is in constant and most confusing state of flux. Underlying the entire problem is the difficulty which appellate courts have had in defining the word obscenity and until this is done our courts will have to continue to deal with each situation wherein this type of statute is involved on a case-by-case basis.

[ 232 Pa. Super. Page 502]

The facts of the instant case taken in the light most favorable to the Commonwealth reveal that the appellant was the manager of the Camera Arts Club when a police raid was made on the establishment. The testimony established that the club charged a $25.00 membership fee to individuals interested in joining and a further charge of $25.00 for each session and these payments seemed to be the only required qualifications for membership. Upon payment of the fees, members were given certificates of membership which granted their admission to modeling sessions which the club conducted. The purported purpose of the sessions was to permit photographers to pursue their hobby by providing them relatively inexpensive models to photograph.

It was established at trial that the possession of a camera at the so called modeling sessions was not a requisite for viewing. On the night of the raid, six of the nineteen people present at the session did not have cameras. No music or dancing accompanied the performance. After stripping, one of the females, Patricia Johnson, lay in a position exposing her genitals, rubbed her breasts and thighs suggestively and rubbed her private parts against a pole on the stage. The other model stripped and posed nude. It was also established that Patricia Johnson was actually Patricia Nellam who had been born on July 6, 1951 and was therefore under eighteen years of age at the time of this incident.

On appeal, the appellant raises ten issues concerning the validity of the convictions. Most of them are disposed of by our disposition of the obscene exhibition charges. Inter alia, the appellant claims that the modeling session was not an exhibition and therefore not subject to the Act of June 24, 1939, P.L. 872, § 528, 18 P.S. § 4528, which relates to obscene exhibitions. The Act provides:

"Whoever gives or participates in, or being the owner of any premises, or having control thereof, permits within or on said ...


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