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COMMONWEALTH PENNSYLVANIA v. GARY THOMAS STOCK (08/16/85)

filed: August 16, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY THOMAS STOCK, APPELLANT



APPEAL FROM THE JUDGMENT OF SENTENCE NOVEMBER 4, 1983 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CRIMINAL NO. CC8108442

COUNSEL

Carl M. Janavitz, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Wieand, Cirillo and Johnson, JJ. Wieand, J., files a concurring and dissenting statement.

Author: Cirillo

[ 346 Pa. Super. Page 65]

An Allegheny County jury found Gary Stock guilty of selling two obscene magazines in violation of 18 Pa.C.S. § 5903(a)(2), and the court sentenced Stock to 11 1/2 to 23 months in prison, suspending the prison sentence on the condition that Stock pay $10,000 for the use of the county. Stock appeals, asserting that the court abused its discretion by imposing a manifestly excessive sentence, and that the obscenity statute is unconstitutional. For the following reasons, we affirm.

We first address Stock's constitutional challenges to the obscenity law.

The portion of the statute Stock was charged with violating states:

(a) Offenses defined. -- No person, knowing the obscene character of the materials involved, shall:

(2) sell, lend, distribute, exhibit, give away or show any obscene materials to any person 17 years of age or older or offer to sell, lend, distribute, exhibit or give away or show, or have in his possession with intent to sell, lend, distribute, exhibit or give away or show any obscene materials to any person 17 years of age or older, or knowingly advertise any obscene materials in any manner . . . .

Stock first argues that the statute is unconstitutionally overbroad because its proscription on "show[ing]" obscene materials invades spheres of privacy protected by the First,

[ 346 Pa. Super. Page 66]

Ninth, and Fourteenth Amendments to the United States Constitution and Article 1, § 7 of the Pennsylvania Constitution.

Stock relies on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), wherein the United States Supreme Court held that a state cannot make mere private possession of obscene matter a crime, because such a regulation would intrude on rights of privacy protected by the First and Fourteenth Amendments. Stock contends that the Pennsylvania statute as drawn would prohibit a husband from "showing" obscene materials to his wife in the privacy of their home, thus violating the constitutional limitations set down in Stanley.

Stock was not prosecuted for privately "showing" obscene materials to his wife, but for publicly selling them from an adult bookstore. He does not assert that the provisions of the statute are unconstitutional as applied to commercial sales of obscene material. Thus, preliminarily we need to address whether Stock has standing to raise this issue.

A traditional principle of constitutional adjudication is that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may be applied unconstitutionally to others in situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, where First Amendment rights are involved, a litigant may attack the facial overbreadth of a statute in regulating free expression even where his own rights are not directly affected by the asserted overbreadth, based on the judicial assumption that the statute's very existence might have a "chilling effect" on the exercise of First Amendment freedoms by persons not before the court. See id. Thus, we will entertain Stock's contention that the Pennsylvania obscenity statute is unconstitutionally overbroad on its face. See also Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978); American Booksellers Association v. Rendell, 332 Pa. Super. 537, 481 A.2d 919 (1984).

[ 346 Pa. Super. Page 67]

In addressing Stock's overbreadth challenge, we bear in mind that the judiciary must accord a strong presumption of constitutionality to the acts of the legislature as a coequal branch of government. Commonwealth v. Hassine, 340 Pa. Super. 318, 490 A.2d 438 (1985). To overcome this presumption, the person challenging the constitutionality of a statute shoulders the heavy burden of demonstrating that the statute clearly, palpably, and plainly violates the constitution. Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981); Commonwealth v. Heck, 341 Pa. Super. 183, 491 A.2d 212 (1985) (petition for allocatur filed); Commonwealth v. Grady, 337 Pa. Super. 174, 486 A.2d 962 (1984).

We must also premise our discussion on the observation that obscenity is not a constitutionally protected mode of expression. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). This principle is important here because of the rule of constitutional jurisprudence that a statute properly regulating unprotected conduct will not be voided as overly broad unless the overbreadth is substantial ...


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