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COMMONWEALTH PENNSYLVANIA v. WAYNE HULEHAN (01/25/85)

filed: January 25, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
WAYNE HULEHAN, APPELLANT



No. 1990 Philadelphia, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, at No. 1290-02/81.

COUNSEL

Robert E. Levy, Asbury Park, N.J., for appellant.

Seth Weber, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Rowley, McEwen and Hoffman, JJ.

Author: Rowley

[ 338 Pa. Super. Page 312]

OPINION OF THE COURT

This is a direct appeal from the judgment of sentence imposed following appellant's conviction for the sale of obscene materials, 18 Pa.Cons.Stat. § 5903(a)(2). On appeal, appellant presents numerous claims of error. However, after careful review of the record in this case, and consideration of the arguments presented, we affirm.

On February 10, 1981, Detectives William S. Brosha and David P. Stiles, investigators associated with the Bucks County District Attorney's Office, proceeded to the Bristol News World, located at 576 Route 13 in Bristol Township, Bucks County. Upon their arrival, they observed a singlestory

[ 338 Pa. Super. Page 313]

    commercial building with a number of large windows, through which the interior of the establishment could be seen. The officers entered the building, and observed that the store was divided into several sections. Newspapers, magazines, and other items of general circulation were located in the front area of the store, as was the cashier's counter. In the rear of the store were display racks and shelves on which had been placed numerous periodicals of a sexual nature. Projection booths had also been placed in this area. Dividing the front and rear sections of the store was a swinging gate. Positioned on the gate was a sign stating that only persons twenty-one years of age or older were permitted beyond that point, and referring to the presence of "adult" materials therein.

After browsing through the store for approximately 10 minutes, Detective Brosha selected a magazine entitled "Staghorn, Volume no. 1," which depicted sexual acts between males. Taking the magazine to the cash register counter, Detective Brosha purchased it from appellant, and the officers left.

The next day the officers returned to the Bristol News World, and executed the warrant they had obtained for appellant's arrest. Following a non-jury trial before the Honorable William Hart Rufe, III, on June 1, 1982, appellant was convicted of selling obscene materials. Timely post-trial motions for a new trial and in arrest of judgment were denied. This appeal follows.

I. Constitutionality of the Obscenity Statute

Initially, appellant contends that the Pennsylvania obscenity statute is impermissibly vague, in violation of the Fifth Amendment to the United States Constitution. Appellant acknowledges that the Pennsylvania provision mirrors the prevailing standard for obscenity as established by 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), yet urges us to find that this standard is, nonetheless, violative of the federal constitution. This we may not do; the United States Supreme

[ 338 Pa. Super. Page 314]

Court is the ultimate arbiter of the federal constitution. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803).

Appellant also maintains that the obscenity provision contravenes Article 1, § 7 of the Pennsylvania Constitution. Article 1, § 7 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." Emphasizing that "obscenity" is susceptible to varying interpretations, appellant concludes that, in light of this constitutional language, the "more rational" approach is to embrace obscenity within the "any subject" aspect of Article 1, § 7. Accordingly, the Commonwealth's sole duty would be to prosecute individuals whose conduct is "abus[ive] of that liberty," i.e., those who subject others, without their consent, to this mode of expression, and those who expose minors, who are incapable of giving consent, to obscene materials.

While we recognize that, in interpreting our state constitution, we may provide greater protection to fundamental rights than that mandated by the decisions of the United States Supreme Court, this Court has already decided the question here presented. In entertaining a similar invitation to "set a higher standard for the State of Pennsylvania in obscenity criminal matters," this Court recently declared,

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

Commonwealth v. Croll, 331 Pa. Super. 107, 114, 480 A.2d 266, 269 (1984). See also, American Booksellers Assoc., Inc., v. Rendell, 332 Pa. ...


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