No. 1058 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Div., at No. 2878-1978.
Francis X. Nolan, Philadelphia, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
Spaeth, Cavanaugh and O'Kicki,*fn* JJ.
[ 281 Pa. Super. Page 99]
Appellant was tried by a judge sitting without a jury and was convicted of criminal solicitation*fn1 and prostitution.*fn2 Post-verdict motions were denied and appellant was sentenced to one year's probation and a $2,500 fine for prostitution.*fn3 On this appeal appellant argues (1) that section 5902 of the Crimes Code is unconstitutional; (2) that the evidence was insufficient to sustain the convictions; and (3) that the lower court erred in not finding entrapment as a matter of law.
The facts were as follows. On May 31, 1978, Officer Donald L. Fredericks of the Pennsylvania State Police Vice Squad went to a hotel room that the police had rented at the Holiday Inn in Tinicum Township, Delaware County, and placed a telephone call to a number listed in a newspaper advertisement for an "out-call" massage service (meaning that a woman would be sent to the caller's room to give the massage). Officer Fredericks telephoned the service and requested that a woman be sent to his room. Approximately two hours later appellant knocked on his room door. The officer let her in and she asked for twenty-five dollars as the cost of the massage, and to use his telephone. He paid her and she telephoned someone that she had the twenty-five dollars and gave her location. When she had finished making the telephone call she told the officer to get undressed and lie face down on the bed, which he did. She started the massage and after about five minutes she asked him to turn over onto his back, which he did. She then
[ 281 Pa. Super. Page 100]
proceeded to massage the front of his body. After approximately ten minutes he asked if there were anything else to the massage. She told him that it would cost fifty dollars for a nude massage. He said that he was not interested in that. She then informed him that it would cost seventy-five dollars for a "half and half", which the officer interpreted to mean half oral and half vaginal intercourse. She also told him that it would cost fifty-five dollars for a "french", which the officer interpreted to mean oral intercourse. He told her that he wanted the french. He then went and took some money from his clothes while she undressed. He gave her the money and she put it into her purse. He then placed her under arrest.
Section 5902 of the Crimes Code is entitled "Prostitution and related offenses" and provides in part (a) as follows:
(a) Prostitution. -- A person is guilty of prostitution, a misdemeanor of the third degree, if he or she:
(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or
(2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity. 18 Pa.C.S. § 5902(a).
Appellant attacks the constitutionality of this section on the grounds that it implicates speech protected by the First Amendment,*fn4 is unconstitutionally vague in violation of the Fourteenth Amendment, and represents a denial of equal protection of the laws in violation of the Fourteenth Amendment because the prostitute's patron is guilty of only a summary offense under section 5902(e) while the prostitute is guilty of a misdemeanor of the third degree under section 5902(a). Cf. Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980) (violation of equal protection found where statute made sodomy criminal depending on the defendants' marital status).
[ 281 Pa. Super. Page 101]
We may not consider appellant's constitutional arguments. Although they clearly could have been raised in a pre-trial motion, appellant filed no pre-trial motion contesting the constitutionality of section 5902. See Pa.R.Crim.P., Rule 306. Perhaps her failure to raise her constitutional arguments before trial alone requires this court to find that she waived her facial constitutional challenges to the statute. See Commonwealth v. Barone, 276 Pa. Super. 282, 288, 419 A.2d 457, 460-61 (1980) (Opinion by CERCONE, P. J., joined by CAVANAUGH, J.); Commonwealth v. Ashford, 268 Pa. Super. 225, 231, 407 A.2d 1328, 1330-31 (1979), citing, Commonwealth v. Warren, 475 Pa. 31, 379 A.2d 561 (1977). However, we need not find waiver on that basis, for appellant also failed to raise any specific constitutional challenge to section 5902 at any time during her trial, even though she had a clear opportunity to do so.*fn5 This failure clearly represents a waiver.*fn6 Accordingly, appellant's constitutional arguments in this case are waived.
Appellant makes four arguments in support of her contention that the evidence was insufficient to sustain the convictions.
Appellant's first three arguments with respect to the sufficiency of the evidence are so obviously without merit that they will not receive extended discussion. Her first argument is that Officer Fredericks' testimony should not have been believed, and her second argument is that the testimony she presented of her good character was sufficient to create a reasonable doubt. However, it is settled that decisions either as to the credibility of witnesses or the
[ 281 Pa. Super. Page 102]
weight to be afforded to character testimony are for the finder of fact and will not be disturbed on appeal. Commonwealth v. Rebovich, 267 Pa. Super. 254, 406 A.2d 791 (1979). See Commonwealth v. Alston, 461 Pa. 664, 337 A.2d 597 (1975). Appellant's third argument is that the evidence was insufficient to convict her of solicitation to commit prostitution under section 5902(a)(2), because she did not "loiter in . . . any public place." However, appellant was not convicted of public solicitation under section 5902(a)(2) but of criminal solicitation generally under section 902 of the Crimes Code.*fn7
Appellant's fourth argument with respect to sufficiency is that the evidence was insufficient to convict her of prostitution under section 5902(a)(1). It will be recalled that section 5902(a)(1) provides that a person is guilty of prostitution if he or she "is an inmate of a house of prostitution or otherwise engages in sexual activity as a business." The term "sexual activity" is defined in section 5902(f) to "[i]nclude [ ] homosexual and other deviate sexual relations." Appellant contends that even when viewed in the light most favorable to the Commonwealth, the evidence does not demonstrate that she "engage[d]" in any "sexual activity" with Officer Fredericks. The gist of appellant's argument is that while the record is clear that she agreed to engage in oral intercourse for a fee, accepted payment of the fee, and undressed, she did not actually engage in any intercourse.
Preliminarily, it may be noted that had appellant been convicted of attempted prostitution as a criminal attempt proscribed by section 901 of the Crimes Code, we should have little trouble with her sufficiency argument, for the evidence of her actions in this case was clearly sufficient to prove the "substantial step toward the commission of [the] crime" necessary to convict. 18 Pa.C.A. § 901(a). Moreover, a conviction for an attempt may be found even on
[ 281 Pa. Super. Page 103]
an indictment charging the completed crime.*fn8 See Commonwealth v. Cunningham, 248 Pa. Super. 219, 375 A.2d 66 (1977); Commonwealth v. ...