John J. Hickton, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellant.
John J. Dean, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Manderino, J., filed a dissenting opinion.
We are required on this appeal to determine whether or not the Pennsylvania open lewdness statute is unconstitutionally vague. This statute, now a part of the Crimes Code of 1972,*fn1 provides:
"A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely
to be observed by others who would be affronted or alarmed." 18 Pa.C.S.A. § 5901.
The appellee was indicted on one count charging violation of this act by masturbating in a public place in plain view of members of the public.*fn2 The trial court granted a motion to quash the indictment on the ground of vagueness, and the Commonwealth has appealed.*fn3 We conclude that under the standards which must govern the disposition of Heinbaugh's challenge of the statute, it is sufficiently definite.
At the outset appellee urges that we measure the challenged statutory proscription, not against the specific conduct involved in this case, but against hypothetical conduct that the statutory language could arguably embrace. To do so, however, would require us to adjudicate the rights of parties not presently before the Court, at the insistence of a party who does not have standing to assert such rights. It is for this reason that facial attacks on the validity of statutes are not generally permitted. United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Absent the assertion of an infringement of First Amendment freedoms,*fn4 the specificity of a statute must be measured against the conduct in which the party
challenging the statute has engaged. As the Supreme Court of the United ...