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CHARLES ANDERSON v. COMMONWEALTH PENNSYLVANIA (12/07/88)

decided: December 7, 1988.

CHARLES ANDERSON, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE. BOOKMART VIDEO, INC., APPELLANT V. COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Allegheny County, in the cases of Commonwealth of Pennsylvania v. Charles Anderson, No. S.A. 392 of 1987, and Commonwealth of Pennsylvania v. Bookmart Video, Inc., No. S.A. 309 of 1987.

COUNSEL

Carl Max Janavitz, for appellants.

No appearance for appellee.

Judges Craig, Doyle, Barry, Colins, Palladino, McGinley and Smith. Opinion by Judge Barry.

Author: Barry

[ 121 Pa. Commw. Page 522]

Charles Anderson and Bookmart Video, Incorporated appeal a decision of the Court of Common Pleas of Allegheny County which affirmed a finding of guilty by a district magistrate and denied the appellants' motions for a new trial.

Charles Anderson is the president of Bookmart Video Incorporated, a book store located in the Township of North Versailles (Township). On November 25, 1986, the appellants were cited by the Township's Zoning Officer for violating the Township Pornography Ordinance (Ordinance). At a hearing before a district magistrate the appellants were found guilty of violating Section 769 of the Ordinance. Both appellants filed appeals from this decision and motions to quash the citations. The trial court, after a non-jury de novo hearing, affirmed the district magistrate. Motions for a new trial were denied. The appellants appeal these orders, which have been consolidated for argument.*fn1

The appellants argue that the trial court erred as a matter of law by concluding that they were guilty of a

[ 121 Pa. Commw. Page 523]

    violation of Section 769 of the Ordinance. They allege that the evidence submitted before the court was not sufficient to establish that they had violated the Township's Ordinance. They argue that, since the Township did not submit the alleged pornography into evidence, the best evidence doctrine precludes a determination as to whether the material was obscene. They also argue that the township's Ordinance is pre-empted by state law which prohibits local legislation seeking to enforce obscenity violations. The appellants also argue that their constitutional rights were violated since the determination of their guilt was not adjudicated by a jury as the finder of fact. They argue that only a jury is able to determine whether community standards have been offended by the alleged pornographic material. Since we believe that the evidence presented to the trial court was insufficient to establish, as a matter of law, the guilt of the appellants, we will reverse the trial court decision and confine our discussion to this issue.

At the de novo hearing, the township elicited the testimony of the Township Zoning Officer and an interested citizen. This testimony constituted the township's case in chief. The Zoning Officer stated that he entered the premises and proceeded to the adult section of the premises. The officer testified that he saw several magazine covers on display in the adult section and that he viewed an x-rated movie for one or two minutes in a private viewing booth. After issuing the citation, he left the premises within 5 to 10 minutes after he entered. The officer did not specifically identify any of the alleged pornographic material by reference to a name or title. The citizen, John Patterson, testified that he was part of a citizens' group that had conducted a survey concerning the material contained on the premises. He stated that lewd material was being displayed on book-shelves and that x-rated movies were available for viewing

[ 121 Pa. Commw. Page 524]

    in private booths. Mr. Patterson was not able to identify by name or title any of the material displayed on the premises. Both the Zoning Officer and Mr. Patterson testified that the material displayed on the premises was pornographic and it was against the community standards of the Township. The trial court permitted the appellants to cross-examine both witnesses. On cross, the appellants were able to firmly establish that the Township had not produced any of the material claimed as pornographic. Nor did ...


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