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filed: July 6, 1984.


No. 436 Pittsburgh, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Butler County at C.A.B. No. 291 of 1981, Book 72, Page 77.


Howard N. Stark, Allentown, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.

Rowley, Wieand and Hester, JJ.

Author: Rowley

[ 331 Pa. Super. Page 110]

This is a direct appeal from the judgment of sentence entered in the Court of Common Pleas of Butler County, following appellant's conviction for sales of obscene material.

[ 331 Pa. Super. Page 111]

Although we affirm appellant's conviction, we vacate the judgment of sentence and remand for resentencing.

On March 10, 1981, Pennsylvania State Police Officers Joseph Rozum and Robert Martin entered the Adult Book Store in Penn Township, Butler County. In the rear of the store, they observed motion picture booths. The door of each booth bore a placard indicating the type of film shown therein. Officer Rozum entered one such booth, deposited twenty-five cents into a film projector, and watched performances of sexual acts between a woman and various animals. Officer Martin then viewed the film.

Subsequently, the officers approached appellant. Appellant and another individual, Robert Katz, were standing behind the sales counter; appellant was instructing Katz on the use of the cash register. When Officer Rozum expressed interest in the movie he had seen, appellant removed the film, wrapped in cellophane, from a display case. At that point, another individual pointed to a different film on display, and within appellant's presence, explicitly described its sexual content, recommending it to the officers. Thereupon appellant removed the recommended film and handed it to Officer Rozum, who purchased it. Payment was tendered to appellant, who in turn handed the money to Katz to be deposited in the cash register. Officer Rozum also questioned appellant concerning the availability of women, or items involving teenagers, on the premises. Appellant stated that neither was available.

Following inquiry about a third film located in the display case, appellant proffered the film to Officer Martin. This film was similarly purchased. On March 31, 1981, Officer Rozum filed a criminal complaint against appellant, charging him with sales of obscene and other sexual materials, and criminal conspiracy.*fn1 Although the magistrate had not viewed the films in question, a summons was issued and served on appellant. Represented by counsel, appellant appeared at the arraignment; no arrest warrant was issued. Formal arraignment was waived, and a trial date was set.

[ 331 Pa. Super. Page 112]

Prior to trial, appellant filed a motion to quash the information. Following an evidentiary hearing, the motion was denied. On September 28, 1981, appellant was tried before the Honorable George P. Kiester and a jury, and found guilty. Motions for a new trial or arrest of judgment were timely filed, and denied following oral argument. On April 19, 1982, appellant was sentenced to a two-year term of probation. One of the conditions of probation required payment of "a penalty of $10,000.00 for the use of the County of Butler." One week later, a motion to modify the sentence was filed. Prior to the trial court's disposition of that motion, an appeal was taken to this court.*fn2

On appeal, appellant claims that judgment should be arrested on the grounds that: (1) the statute is unconstitutional, (2) that the complaint was accepted and the summons issued without a showing of probable cause and (3) that the evidence was insufficient to support the verdict. In the alternative, appellant argues that he is entitled to a new trial because of errors committed during the selection of the jury and during the trial court's instructions to the jury. Finally, appellant contends that he is entitled to a new sentencing hearing. Finding merit in only the last of appellant's complaints, we will affirm the conviction but remand for resentencing.


     a. Constitutionality

Initially, appellant argues that the obscenity statute is unconstitutionally vague. This question has, however,

[ 331 Pa. Super. Page 113]

    been considered and decided adversely to appellant by this Court. See Commonwealth v. Doe, 316 Pa. Super. 1, 462 A.2d 762 (1983). Appellant's argument was ably refuted by Judge Johnson in that case. Appellant concedes that the Pennsylvania Act was amended "with slavish adherence to" the decision of the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). In spite of that, he argues that "obscenity is impossible of definition" and that we should, therefore, "set a higher standard for the State of Pennsylvania in obscenity criminal matters." Art. I, § 7 of the Pennsylvania Constitution provides, inter alia, that "[t]he free communication of thoughts and opinion is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty." The underlined portion of the section has been a part of Pennsylvania's Constitutional heritage since 1790. Former President Judge Cercone of this Court, in discussing this provision, although in an equity proceeding for an injunction against the sale and distribution of obscene materials, said:

Since the case of Commonwealth v. Sharpless, 2 S. & R. 91 (1815) the courts of Pennsylvania have assumed that the publication of obscenity was a crime indictable at common law, part of our received jurisprudence, and hence not protected from prosecution for abuse of the liberty of free expression. We have found no authority in this Commonwealth that extends to obscene matter the limited right to exemption from prosecution or punishment for its publication, which right many other forms of expression enjoy under the second element of our Constitution's free speech guarantee. Nor have we found authority in our case law which holds that matter cannot be enjoined from further publication once it has been determined to be offensive, where that determination has been made by a jury applying a definition of obscenity the vagueness of which is not contested.

[ 331 Pa. Super. Page 114]

It follows therefrom that there is in Pennsylvania no fundamental right to protection from prosecution for the publication of matter abusive of the right to free expression, viz. obscene matter. In short, obscenity does not enjoy the full protection of Art. I, § 7 of the Pennsylvania Constitution of 1874.

Long v. 130 Market St. Gift & Novelty, etc., 294 Pa. Super. 383, 400-401, 440 A.2d 517, 526 (1982) (Citations and footnotes omitted).

It is clear to us, and we therefore hold, that Art. I, § 7 of the Pennsylvania Constitution affords no greater protection from prosecution for the distribution and sale of obscene materials than do the First and Fourteenth Amendments to the United States Constitution.

     b. Probable Cause

Next, appellant contends that his motion to quash should have been granted because the District Justice failed to view the films before accepting the Complaint and issuing the summons. As appellant notes, Pa.R.Crim.P. 134, directs the issuing authority to ascertain that probable cause exists, before issuance of a summons or arrest warrant.*fn3 In determining whether probable cause exists to support prosecution under the obscenity statute, 18 Pa.Cons.Stat. § 5903, a judicial officer must, appellant contends, independently review the suspect materials to decide whether they are in fact obscene. Because this was not done here, he argues, the magistrate could not properly issue the summons.

We note that a preliminary hearing was conducted on May 6, 1981, at which time the ...

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