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GERARD LONG v. 130 MARKET STREET GIFT & NOVELTY JOHNSTOWN (01/14/82)

filed: January 14, 1982.

GERARD LONG, DISTRICT ATTORNEY OF CAMBRIA COUNTY, PENNSYLVANIA
v.
130 MARKET STREET GIFT & NOVELTY OF JOHNSTOWN, OTHERWISE KNOWN AS 130 MARKET STREET NOVELTIES & GIFTS, INC., A/K/A 130 MARKET STREET NOVELTIES & GIFTS OF JOHNSTOWN, INC., BEING NAMES USED BY A CORPORATION DOING BUSINESS AND TRADING AS JOHNSTOWN NOVELTY & GIFT SHOP AND/OR ADULT WORLD, DAVID DRY, AN INDIVIDUAL AND FRANK CISLO, AN INDIVIDUAL, APPELLANTS



No. 1107 April Term, 1978, Appeal from the Order of the Court of Common Pleas, Civil Division, Cambria County, at No. 1978-1169.

COUNSEL

James H. English, Altoona, for appellants.

J. Kiniry, Assistant District Attorney, Ebensburg, for appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ.

Author: Cercone

[ 294 Pa. Super. Page 387]

We have before us today an appeal from an injunction which issued from the Court of Common Pleas of Cambria County. The final order of the chancellor, made pursuant to Pennsylvania's anti-obscenity statute,*fn1 permanently enjoined appellants from selling or distributing certain publications and films*fn2 which a jury determined to be obscene within the definition of the anti-obscenity statute.*fn3

[ 294 Pa. Super. Page 388]

In addition to the materials submitted to the jury for its consideration, the injunction purports to enjoin the sale or distribution of films and publications of the same or substantially similar type. In this appeal, appellants allege error at trial, complain that the injunction is overly-broad and works a denial of their rights to free speech under the Commonwealth's Constitution as well as under the federal Constitution, and that the statute denies them their rights to equal protection under both Constitutions. With certain modifications, we affirm the order of the lower court.*fn4

Gerard Long, District Attorney for Cambria County, filed a complaint in equity under the injunction provision of the aforementioned anti-obscenity statute, 18 Pa.C.S. ยง 5903(g), on April 4, 1978. At the same time he requested that a hearing be held within three days' time, as was his right under the statute. Appellants received timely notice of the hearing and filed a demand for a jury trial. On April 7, 1977, the day set for trial, appellants filed preliminary objections and a motion for a continuance, which were denied by the chancellor, whereafter a jury was empanelled and the case tried. The district attorney introduced eleven publications and four films into evidence, but offered no testimony concerning the contemporary community standards element of obscenity. During their case in chief appellants unsuccessfully attempted to have David Dry, himself a party, qualified as an expert witness to testify concerning the contemporary community standard on obscenity in Pennsylvania. In his summation, the District Attorney made two remarks, which appellants asserted in a motion for mistrial were highly prejudicial because of an allegedly inherent Christian, religious and moralistic slant. The mistrial motion was denied. The jury retired to deliberate, and returned a unanimous verdict, finding that all the material before it was obscene under Section 5903(b) of the Crimes Code. Thereupon the chancellor entered the order in question. On April 17, 1977, the lower court filed its memorandum

[ 294 Pa. Super. Page 389]

    opinion setting forth at length events at trial and describing in detail the materials admitted into evidence and found by the jury to be obscene. On April 21 appellants filed motions for a new trial, a motion in arrest of judgment and a motion for dissolution of the injunction, the latter of which was amended on April 26, 1978. None of these latter motions was heard or considered because, by the terms of the statute, the order was final. On May 11, 1978, appellants took an appeal to the Supreme Court. The district attorney objected to the Supreme Court's jurisdiction. By per curiam order of June 26, 1978 the Supreme Court transferred the appeal to this Court. In the meantime, appellants had filed a petition for supersedeas, which we denied.

I.

We consider first appellants allegations of error at trial. Initially appellants contend that the chancellor's denial of their motion for a continuance worked a denial of their rights to due process under the Fourteenth Amendment to the Federal Constitution. This Court has previously found the case of Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), instructive on the due process argument appellants now raise. Ungar v. Sarafite involved a proceeding in which Ungar was served with an order to show cause why he should not be held in contempt for alleged willful and disruptive behavior during his testimony at the trial of one Hulan E. Jack, who was charged with conspiracy to obstruct justice. Ungar had five days' notice of his contempt hearing at which he appeared with counsel. Counsel asked for a continuance due to the fact that he was then in the midst of trying another case, and that he had had insufficient time to prepare Ungar's defense. The motion for continuance was denied on the grounds that five days' notice was more than sufficient time for Ungar to have retained an attorney who would have had no scheduled conflicts, and furthermore, that five days was sufficient time to prepare a defense. The court placed importance on

[ 294 Pa. Super. Page 390]

    the fact that the motion for continuance had not been made until the time set for the contempt hearing. The U. S. Supreme Court affirmed the decision of the New York Court of Appeals confirming the lower court's ruling. Mr. Justice White, writing for the majority, stated:

The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444 [60 S.Ct. 321, 84 L.Ed. 377]. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3 [75 S.Ct. 1, 99 L.Ed. 4]. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385 [77 S.Ct. 431, 1 L.Ed.2d 415]; Torres v. United States, 270 F.2d 252 (C.A. 9th Cir.); Cf. United States v. Arlen, 252 F.2d 491 (C.A. 2d Cir.)

Id. at 589-590, 84 S.Ct. at 849-850. We acknowledged Ungar in Commonwealth v. Harding, 245 Pa. Superior Ct. 333, 335, 369 A.2d 429, 430 (1976), a case involving a petition under Pennsylvania's Post Conviction Hearing Act, which questioned the trial judge's denial of a motion for continuance requested for the purpose of giving the defendant time to retain private counsel. We found apposite its teaching on the scope of review in a court's denial of motions for continuance. And, as we stated in Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 299, 294 A.2d 805, 806 (1972), "[a] continuance is a matter within the sound discretion of the trial court. Commonwealth v. Richardson, 392 Pa. 528, 140 A.2d 828 (1958)." Furthermore, we note that "[due] process is a flexible concept. What process is due depends upon the circumstances of each case, including the nature of

[ 294 Pa. Super. Page 391]

    interests that are at stake and the particular proceeding in question. [Citations omitted.]" In re Martorano, 464 Pa. 66, 74, 346 A.2d 22, 26 (1974). The Pennsylvania Supreme Court has consistently held that mere shortness of time in which to prepare a defense does not violate the requirements of due process. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973); Commonwealth v. Skipper, 440 Pa. 576, 271 A.2d 476 (1970); Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970); Commonwealth v. Berry, 440 Pa. 154, 269 A.2d 921 (1970); but see Commonwealth v. Honeyblue, 262 Pa. Superior Ct. 137, 396 A.2d 683 (1978), aff'd per curiam, 487 Pa. 409, 409 A.2d 834 (1979). The instant case falls in between the ten minutes notice of a probation revocation hearing we found constitutionally wanting in Commonwealth v. Williams, 254 Pa. Superior Ct. 202, 385 A.2d 979 (1978) and the five days' notice in Ungar which was upheld. In light of the teaching of the case law, and of the legislative determination that three days' notice is adequate time to prepare a defense to an injunction petition of this type, we cannot say that under the facts of this case the chancellor abused his discretion in denying the motion for continuance.

Appellants also complain of the chancellor's refusal to qualify David Dry as an expert witness regarding the then prevailing statewide community standard concerning obscenity. As Justice Musmanno stated in Weisman v. Sauder Chevrolet Co., 402 Pa. 272, 167 A.2d 308 (1971), "[w]hether expert testimony should be accepted in any given trial is generally within the discretion of the trial judge . . . . However, that discretion is subject to review . . . ." Id., 402 Pa. at 276, 167 A.2d at 311. The scope of review of discretionary matters is limited to inquiry into the abuse of those discretionary powers. See Albert v. Alter, 252 Pa. Superior Ct. 203, 381 A.2d 459 (1977); Piso v. Weirton Steel, 235 Pa. Superior Ct. 517, 345 A.2d 728 (1975); Thompson v. American Steel & Wire Co., 317 Pa. 7, 175 A.2d 541 (1934).

The offer of proof made was that Dry would testify as to his knowledge of sales of publications, photographs and films of a kind similar or ...


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