No. 288 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, dated January 21, 1977, granting Motions to Quash Informations at Nos. 2404, 2405 and 2406, April Term, 1976
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Maxine J. Statland, Asst. Dist. Atty., Philadelphia, for appellant.
Michael A. Seidman, Philadelphia, for appellees.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, former J., did not participate in the decision of this case. Manderino, J., joins in this opinion and files a concurring opinion.
Appellee Betty Jane Allsup was charged in an information in Philadelphia County with violation of the "open lewdness" section of the Crimes Code of 1972, 18 Pa.C.S. § 5901, and with criminal conspiracy to violate the "open lewdness" statute under 18 Pa.C.S. § 903.*fn1 Appellee Thomas Rizzo was charged with criminal conspiracy to violate the "open lewdness" statute. Both defendants filed motions to quash the informations pursuant to Pa.R.Crim.P. 304 (now 307), and those motions were granted and the informations quashed by the court of common pleas. The basis for the trial court's action was that the "open lewdness" statute failed to set forth with sufficient specificity the conduct which it proscribes
and was therefore unconstitutional under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and the decision of this Court in Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290 (1975). The Commonwealth has appealed directly to this Court.*fn2
We will affirm, but on grounds different from those relied upon in the court below.
The facts for purposes of this appeal must be taken from the criminal informations and from the evidence given on behalf of the prosecution by a Philadelphia police officer who testified at a hearing on the defendants' motions to quash:
Appellee Rizzo is the manager of an establishment in Philadelphia known as the "Golden 33 Bar." The business does not have a liquor license and no alcoholic beverages were served on the premises on the occasion in question. The patrons of the business, however, did bring alcoholic beverages with them which they consumed during the performance shortly to be described.
Appellee Allsup, known by her stage name of "Honeysuckle Divine," appeared on a small stage in the Golden 33 Bar on April 5, 1976 and before an audience of 25 to 26 adult males, each of whom had paid an admission fee of $6, performed various acts of what can best be described as "vaginal acrobatics".*fn3 Upon conclusion of the ...