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COMMONWEALTH v. KRASNER (12/22/75)

decided: December 22, 1975.

COMMONWEALTH
v.
KRASNER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Jan. T., 1972, Nos. 725, 726, and 727, in case of Commonwealth of Pennsylvania v. John Krasner.

COUNSEL

Robert E. Levy, with him Bruce L. Neff, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, submitted a brief for Commonwealth, appellee.

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

Author: Hoffman

[ 238 Pa. Super. Page 2]

Appellant challenges his conviction under § 4524 of the Penal Code*fn1 because § 4524 does not specifically define "obscenity" as mandated by Miller v. California, 413 U.S. 15

[ 238 Pa. Super. Page 3]

(1973).*fn2 Consistent with two cases decided recently by our Court, Commonwealth v. Burak, 232 Pa. Superior Ct. 499, 335 A.2d 820 (1975); Commonwealth v. Winkleman, 230 Pa. Superior Ct. 265, 326 A.2d 496 (1974), which interpreted Miller, we must reverse appellant's conviction.

In 1971, appellant was the owner and operator of an "adult book store" in the Graeme Park Shopping Center, Horsham, Montgomery County. On December 16, 1971, several members of the state police force entered appellant's store in order to execute a search warrant. Pursuant to that warrant, the police seized various books, magazines, records, and films including several $.25 "peep shows" operated on the premises. Police arrested appellant and Ignatius Joseph Pitz, Jr., a clerk working in the store when the police arrived.

On January 7, 1972, appellant and Pitz appeared for a preliminary hearing and were bound over for action

[ 238 Pa. Super. Page 4]

    by the Grand Jury. The Grand Jury returned bills charging appellant and Pitz with unlawful possession of obscene literature with intent to sell, (No. 725), with the exhibition of obscene moving pictures, (726), and with conspiracy, (727). Thereafter, appellant and Pitz were tried before the lower court sitting without a jury, from April 9, 1973, until April 27, 1973. The lower court found appellant and his co-defendant guilty on all charges. Motions in arrest of judgment and for a new trial were denied. On January 24, 1975, appellant was sentenced to six months to two years' imprisonment and to pay a fine of $2,000 on bill No. 725, to six months to two years' imprisonment (to run ...


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