No. 969 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division at No. CC7803903A.
Carl M. Janavitz, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, Wickersham and Lipez, JJ.
[ 287 Pa. Super. Page 150]
This is an appeal from a judgment of sentence for prostitution*fn1 and criminal conspiracy.*fn2 Appellant argues that for numerous reasons, the provision of the Crimes Code making prostitution criminal is unconstitutional; she also argues that her motion for a mistrial should have been granted. Finding no merit in either argument, we shall affirm.
In June 1978 the Pennsylvania State Police were investigating prostitution in Pittsburgh. As part of this investigation, on June 15 Trooper Louis W. Gentile telephoned a woman later identified as Debbie Ross. Gentile told Ross that he was a businessman named "Tony" from Philadelphia, that he was attending a convention in Pittsburgh, and that a friend, Joe, had given him her telephone number and had said that if he wanted sexual services, he should call the number and "he would be satisfied." N.T. at 13.
[ 287 Pa. Super. Page 151]
Apparently suspicious, Ross questioned Gentile about the identity of Joe and his familiarity with Philadelphia. She then asked Gentile what "exactly" he wanted. N.T. at 13. Gentile said there were seven people in his party seeking sexual services. N.T. at 13. Ross instructed Gentile to come to her residence so that she could check his identification, and told him that if she "approved," it would cost $25 per man plus $25 for cab fare for the "lady." N.T. 13-14.
Gentile went by cab to the address provided by Ross. After inspecting Gentile's driver's license and business card, Ross directed Gentile to a motel in Pittsburgh. Ross told Gentile that he would have to pay the $200 before any sexual services would be rendered. N.T. at 16. Gentile went to the designated room and was greeted by appellant, who was naked. N.T. at 18. She explained that "Debbie" had just called and she had not had time to get dressed. N.T. at 18. She asked Gentile if "Debbie" had told him that the $200 would have to be paid "up front." N.T. at 19. Gentile replied that Ross had told him, and that he would make the payment, but that it would have to be at his hotel room because he would have to get the money from the other members of the party. N.T. at 20. Appellant and Gentile then went by cab to Gentile's hotel. Upon arriving at Gentile's room, they were greeted by another Pennsylvania State Trooper, Gerald Fielder, who was in bed dressed only in his underwear. N.T. at 22. After discussing the specific services to be rendered, and after payment of the $200.00, appellant began to undress. N.T. at 22. Fielder then told appellant that she was under arrest, advised her of her Constitutional rights, and asked her how the money was to be divided. Appellant said that she and Ross divided the money evenly. N.T. at 22.*fn3
Section 5902(a) of the Crimes Code provides:
(a) Prostitution. -- A person is guilty of prostitution; a misdemeanor of the third degree, if he or she:
[ 287 Pa. Super. Page 152]
(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.
Appellant argues that this provision is unconstitutional for numerous reasons:*fn4 it violates the fifth and fourteenth amendments of the United States Constitution because the terms "sexual activity as a business," "loiters," and "inmate of a house of prostitution" are vague and capable of an overbroad interpretation; it violates the first amendment in that it is susceptible to improper application by law enforcement officials and so results in a "chilling" of the first amendment rights of freedom of speech, association and peaceable assembly; it violates the equal protection clause of the fourteenth amendment of the United States Constitution and the equal rights amendment of the Pennsylvania Constitution because it provides for disproportionate punishments based on gender classification between the female prostitute and the male patron and promoter of prostitution; it violates the right to privacy guaranteed by the first, ninth, and fourteenth amendments of the United States Constitution and Article 1, section 9, of the Pennsylvania Constitution; it violates the fifth and fourteenth amendments of the United States Constitution in that it regulates by inappropriate means an area of conduct in which the state has no legitimate interest; and finally, it violates the first and fourteenth amendments of the United States Constitution, and Article 1, section 3, of the Pennsylvania Constitution in that it "tends toward an establishment of religion" and "interferes with an individual's right of conscience."
Several of appellant's arguments may be disposed ...