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filed: April 28, 1987.


Appeal from the Judgment of Sentence Entered April 24, 1986 in the Court of Common Pleas of Berks County, Criminal, No. 84/1932.


Lawrence J. Hracho, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.

Cirillo, President Judge, and Rowley and Hoffman, JJ. Rowley, J., notes dissent.

Author: Cirillo

[ 362 Pa. Super. Page 479]

This is an appeal from a judgment of sentence of the Court of Common Pleas of Berks County. After a jury trial, appellant, Ralph Blankenbiller was found guilty of "owning, controlling, managing, supervising or otherwise keeping, alone or in association with others, . . . a prostitution business." 18 Pa.C.S. § 5902(b)(1). The defendant was sentenced to a period of incarceration of three to twelve months. We reverse.

On appeal, the appellant presents four issues for our review: (1) whether the evidence presented was sufficient to sustain a verdict of guilty; (2) whether there was sufficient evidence linking the defendant with the alleged prostitution to establish a prima facie case against him in order to deny the writ of habeas corpus; (3) whether the trial court abused its discretion in charging the jury with the lesser included offense of criminal attempt to promote prostitution when neither party had notice of such a charge; and (4) whether the trial court erred in permitting hearsay testimony under the co-conspirator exception to the hearsay rule. Because we find for the appellant on the first issue, we need not review the other issues.

Appellant argues that the evidence was insufficient to sustain a conviction of promoting prostitution. The standard of review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences in their favor, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 305, 489 A.2d 1340, 1342 (1985).

On June 3, 1984, there was a large party at the recently closed restaurant known as Rasputin's in West Lawn, Berks County, Pennsylvania. The party was for the benefit of Rasputin's softball team. The appellant had paid for the

[ 362 Pa. Super. Page 480]

    team uniforms several months before the party. The $15 ticket for admission to the party entitled each purchaser to beer, snacks and a go-go dancer show. Two undercover state troopers from the vice squad attended the party after purchasing tickets for the event at the Tenth and Marion Cafe in Reading. The appellant was an officer in corporations that owned both Rasputin's Restaurant and the Tenth and Marion Cafe.

At trial, the state troopers testified that in the course of the afternoon's entertainment there were continuing announcements over the speaker system to the effect that sex was available for money. The appellant was seen in the vicinity of the speaker system during some of the announcements. Two of the nine women who attended the party also testified at the trial. Buffy St. Clair, the woman who ran a booking agency for the go-go dancers, stated that she had hired four women to do the dancing at $150 each and that she was paid $100 for making the arrangements and acting as a hostess. She brought four other women along for purposes of prostitution. The second woman who testified stated that she had turned two "tricks" that afternoon and that she had the responsibility of collecting $5 per trick from each of the other girls. The money was to be used to benefit the softball team. She also testified that she did not give the money to the appellant, nor did she even know who he was.

In order to sustain the conviction for promoting prostitution, this Court must be satisfied that the evidence was sufficient to convince the jury beyond a reasonable doubt that the Commonwealth proved: (1) that there was a prostitution business; and (2) that the accused had a connection with the "running, control, supervision or keeping of the prostitution business." 18 Pa.C.S. § 5902(b). We find that the Commonwealth has met its burden of proving, beyond a reasonable doubt, that there was a prostitution business in progress on the ...

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