Larry A. Kalikow, Assistant Public Defender, Harrisburg, for appellants.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Brosky, McEwen and Beck, JJ. McEwen, J., concurs in the result.
[ 296 Pa. Super. Page 266]
These are appeals from judgments of sentence. They are separate cases but involve the same legal issues and almost identical facts. Therefore, they have been consolidated pursuant to Pa.R.A.P. 513. The appellants were charged initially with criminal solicitation under 18 Pa.C.S.A. § 902. In each case, the prosecution was permitted to amend the informations to charge a count of prostitution pursuant to
[ 296 Pa. Super. Page 26718]
Pa.C.S.A. § 5902.*fn1 All four appellants were found guilty in separate non-jury trials of both counts. Each was fined $100.00 and given a six month suspended sentence.
Appellants argue that the evidence presented was insufficient to sustain a verdict of guilty of criminal solicitation. That statute reads:
A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or which would establish his complicity in its commission or attempted commission.
In Commonwealth v. Danko, 281 Pa. Super. 97, 421 A.2d 1165 (1980), this court upheld convictions for criminal solicitation and prostitution in a similar situation. There was evidence in that case that appellant offered to engage in specific sexual acts for money, used phrases commonly spoken by prostitutes to describe those acts, and undressed in front of the officer. The evidence adduced at trial in the instant cases clearly supports the finding that the appellants solicited the police officers to engage in specific conduct which would establish the officers' complicity in the commission of the crime of prostitution -- engaging in sexual activity as a business.*fn2
[ 296 Pa. Super. Page 268]
Appellants argue that since the police officers would not be criminally liable for the underlying crime of prostitution, appellants could not be found guilty of soliciting them to commit that crime. Appellants misread the statute. Under the clear meaning of the criminal solicitation statute, an individual who "encourages or requests another person to engage in specific conduct which would establish his complicity . . ." in the commission of the crime violates the statute. There is no requirement in the statute that the one being solicited be criminally ...