Timothy H. Knauer, Asst. Dist. Atty., West Chester, for appellant.
John R. Merrick, Public Defender, Thomas R. Wilson, R. Kerry Kalmbach, Asst. Public Defenders, West Chester, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy and Manderino, JJ., concur in the result.
This case presents the narrow issue whether 18 Pa.C.S.A. § 4304 (1973), "Endangering the welfare of children," is unconstitutionally vague. On September 19, 1974, appellee Mack was indicted for violating the section. She filed a pretrial application for dismissal of the indictment on December 30, 1974, alleging that the statute was unconstitutionally vague. After a hearing, the trial court granted the application on March 21, 1975. The Commonwealth appealed directly*fn1 to this Court. We reverse.
"A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support."
It was taken, with two insignificant changes,*fn2 directly from the Model Penal Code of the American Law Institute. The Pennsylvania Joint State Government Commission, in its comments on the section, stated:
"This section consolidates and simplifies the various provisions concerning crimes endangering the welfare of children. The offense involves the endangering of the physical or moral welfare of a child by an act or omission in violation of legal duty even though such legal duty does not itself carry a criminal sanction."
Appellee contends, and the trial court agreed, that the statute fails to meet the vagueness test set forth in Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), which looks to whether a criminal enactment "give[s] a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" and "encourages arbitrary and erratic arrests and convictions." If the statute fails to do the first or does the second, it is unconstitutional.
The vagueness doctrine, however, is more complex than mere statement of the Papachristou test would indicate. A statute may be "vague" in the sense that it contains no ascertainable standard of conduct, or it may be "vague" in the sense that the ascertainable standard of conduct may or may not include certain types of conduct. Smith v. Goguen, 415 U.S. 566, 577-78, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). If the statute contains no standard of conduct, or if the standard of conduct prohibits conduct which is protected by the first amendment, the ...