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decided: October 30, 1975.



Donald L. Reihart, Dist. Atty., York, for appellant.

Harold N. Fitzkee, Jr., Donn I. Cohen, York, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Eagen, O'Brien and Nix, JJ., concur in the result. Jones, C. J., dissents. Manderino, J., did not participate in the consideration or decision of these cases.

Author: Roberts

[ 464 Pa. Page 439]


These appeals arise out of a two-pronged effort by the Commonwealth to prevent the showing of certain allegedly obscene motion pictures. The Commonwealth first filed a criminal complaint against Charles MacDonald, Raetta Thompson, and Lance Wolf alleging that they had violated sections 5903*fn1 and 6504*fn2 of the Crimes Code by

[ 464 Pa. Page 440]

    exhibiting the motion pictures "Deep Throat" and "The Devil in Miss Jones." Subsequently, the Commonwealth filed a complaint in equity against MacDonald only seeking to enjoin exhibition of those motion pictures in the future. Appellees filed a petition to quash the criminal complaint and preliminary objections to the complaint in equity. The court of common pleas quashed the criminal complaint on the ground that the statutes in question violated the First Amendment to the United States Constitution as interpreted by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). It also sustained the preliminary objections to the complaint in equity on the ground that the invalidity of the obscenity statute left no "legal basis upon which the films in question can be determined to be obscene." These appeals followed*fn3 and we consolidated them for oral argument. We now affirm.

The criminal charges under sections 5903 and 6504 will be discussed in parts I and II of this opinion, respectively. The action in equity will be considered in part III.


The charges of violation of section 5903, appearing in count one of the criminal complaint, read as follows:

"Defendant[s] did exhibit and show to persons over 17 years of age, obscene photographs and images that were cast upon a motion picture screen. The photographs and images depicted acts of oral and anal sodomy and sexual intercourse, and pictured the genitals of males and females in a state of excitement. The

[ 464 Pa. Page 441]

    photographs and images were contained in a motion picture film, which when taken as a whole was obscene."

Appellees moved to quash the indictment on the ground that it failed to charge a crime, because (1) the statute does not prohibit the exhibition of an obscene motion picture and (2) the statute was unconstitutionally vague and therefore invalid. The court of common pleas rejected the first contention but agreed with the second and quashed count one of the complaint. We agree that section 5903 does attempt to prohibit exhibition of obscene motion pictures but that it is unconstitutional insofar as it prohibits distribution or exhibition of obscene materials to persons over the age of 17.*fn4

Section 5903(a) forbids "any person" to exhibit or . . . show . . .

"any obscene literature, book, magazine, pamphlet, newspaper, storypaper, paper, comic book, writing, drawing, photograph, figure or image, or any written or printed matter of an obscene nature, or any article or instrument of an obscene nature . . . ."

Surely a motion picture is simply a series of "photographs" or "images." Nevertheless appellees argue that the omission from the list of prohibited materials of any specific references to "motion pictures" indicates a legislative intent to omit them from the scope of the prohibition.

The only factor which even lends surface plausibility to appellees' proposed construction is the fact that other portions of section 5903 do specifically mention motion pictures.*fn5 From this appellees argue that omission of

[ 464 Pa. Page 442]

    any such specific reference from section 5903(a) must have been intentional. We cannot agree.

Whatever might be the case if the entire statute were drafted at one time, we believe that the history of this section precludes the inference which appellees seek to draw. Section 5903(a) of the Crimes Code was derived, without any pertinent changes, from section 524 of the Penal Code.*fn6 Thus it is presumed that the General Assembly intended to retain the prior law except as it was explicitly altered.*fn7 See Statutory Construction Act of 1972, 1 Pa.C.S. ยงยง 1961, 1962 (Supp.1975). There is no indication that motion pictures were excluded from the scope of section 524, which is clearly intended as a comprehensive prohibition on the distribution and exhibition of all types of obscene materials. Nor, we think, can the addition of new and extremely detailed provisions governing the exhibition and distribution of obscene materials to minors be construed to restrict the scope of the prohibition of or distribution of similar materials to adults.

Appellee would have us construe the statute to avoid the constitutional question. While there is some value to construing statutes narrowly simply to avoid or postpone constitutional adjudication, we do not believe that this

[ 464 Pa. Page 443]

    factor is sufficient to justify disregard of the more probable intent of the General Assembly when that intent is expressed as plainly as it is in this case. Consequently, we conclude that motion pictures are "photographs" or "images" within the meaning of section 5903(a).

Our analysis of the validity of the statute before us must begin with the United States Supreme Court's decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). In Miller the Court ended a long period of uncertainty regarding the constitutional limits of governmental power to regulate obscene materials and laid down a five-part standard for the validity of such regulation:

"We acknowledge . . . the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation [1] to works which depict or describe sexual conduct. [2] That conduct must be specifically defined by state law as written or authoritatively construed. [3] A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, [4] which portray sexual conduct in a patently offensive way, and [5] which, taken as a whole, do not have serious literary, artistic, political, or scientific value."

Id. at 24-25, 93 S.Ct. 2614-15 (citation and footnote omitted).

Examining the pertinent portion of section 5903 on its face,*fn8 we find that it fails to satisfy the Miller standard. Section 5903(a) is a wide-ranging prohibition on the distribution or exhibition of obscene materials with the following definition of "obscene" appearing in section 5903(b):

"'Obscene,' as used in this section, means that which, to the average person applying contemporary

[ 464 Pa. Page 444]

    community standards, has as its dominant theme, taken as a whole, an appeal to prurient interest."

On its face this appears to satisfy only what we have labeled as the third element of the Miller standard. However, the Miller standard may be satisfied if the statute, as authoritatively construed, complies with all of the requirements of Miller.*fn9 We therefore turn to past constructions.

We have not previously construed this precise statutory provision because it is part of the recently enacted Crimes Code. However, the portion before us in this case is identical to a prior statute*fn10 which we construed in Commonwealth v. LaLonde, 447 Pa. 364, 368 n. 4, 288 A.2d 782, 784 n. 4 (1972), to incorporate all of the requirements of the then-understood requirements of the First Amendment:

"[T]hree elements must coalesce: it must be established that

(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex;

(b) the material is patently offensive because it affronts contemporary community standards relating to the description of sexual matters; and

(c) the material is utterly without redeeming social value."

This construction satisfies four of the Miller requirements. Element (a) corresponds to requirement [3] of the Miller standard. Element (b) insures that requirements [1] and [4] are met. Finally, it is clear that if material is "utterly without redeeming social ...

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