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COMMONWEALTH PENNSYLVANIA v. TAU KAPPA EPSILON (06/16/89)

filed: June 16, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
TAU KAPPA EPSILON, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. THETA DELTA CHI, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ALPHA EPSILON PI, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ALPHA CHI RHO, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. BETA SIGMA BETA, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. PHI MU DELTA, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. PHI KAPPA THETA, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. PI KAPPA ALPHA, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. PHI KAPPA TAU, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. SIGMA PI, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ACACIA, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-68. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-70. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-71. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-72. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-73. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-74. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-75. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-76. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-77. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-78. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 87-79.

COUNSEL

Edward S. Blanarik, Jr., Ambridge, for appellants.

Mark S. Smith, Assistant District Attorney, Bellefonte, for Com., appellee.

Wieand, Popovich and Hester, JJ. Popovich, J., files a dissenting opinion.

Author: Wieand

[ 385 Pa. Super. Page 249]

The appellants are eleven fraternities at Penn State University.*fn1 They were tried by a jury and were found guilty of furnishing beer to minors in violation of section 493(1) of

[ 385 Pa. Super. Page 250]

    the Liquor Code, Act of April 12, 1951, P.L. 90, art. IV, § 493, as reenacted and amended by the Act of June 29, 1987, P.L. 32, No. 14, § 81, 47 P.S. § 4-493(1).*fn2 Post-trial motions were dismissed. Thereafter, Tau Kappa Epsilon was sentenced to pay a fine of five hundred ($500) dollars, to perform two hundred (200) hours of charitable service, and was placed on probation for a period of one year. The remaining ten fraternities were sentenced to one year of probation, to pay a fine of two hundred ($200) dollars, and to perform fifty (50) hours of charitable service. On direct appeal from the judgments of sentence, appellants argue (1) that the Commonwealth failed to prove that the beverages served to minors were beer; (2) that the entries by police into the fraternity houses were illegal and that evidence obtained as a result thereof should have been suppressed; and (3) that the trial court should have granted a mistrial because of statements made by the prosecuting attorney during closing argument to the jury. We find no basis for disturbing the jury's verdicts and affirm the judgments of sentence.

As part of a general investigation, Laurie Hazenstab and Ann Henry, members of the State College Bureau of Police Services, made visits to off-campus fraternity houses during October and November, 1986, to determine whether alcoholic beverages were being furnished to minors. While dressed in street clothes they would enter randomly selected fraternity houses at which social functions appeared to be underway. During the course of the investigation they entered twelve fraternity houses, gaining admission by showing an expired Penn State identification card or signing

[ 385 Pa. Super. Page 251]

    a register.*fn3 At several houses, admissions were wholly unrestricted. When inside, the officers' practice was to move toward the bar, where they were served a beverage which looked and tasted like beer and was served from a tap in plastic cups of a type furnished by distributors. Hazenstab and Henry then observed the persons who were being served at the bar. When they observed someone who appeared to be underage, they would keep that person under surveillance until he or she left the fraternity house. One of the officers would then follow, and the other would signal uniformed officers who were waiting outside the house. The suspected minor was then stopped and asked for identification and age. Several minors were convicted or entered pleas of guilty to underage drinking as a result of the investigation, and charges were brought against the twelve fraternities for furnishing beer to minors.

In determining the sufficiency of the evidence to support a finding that the beverages supplied to the minors were beer,*fn4 we apply the general standard of review and decide

     whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). See also: Commonwealth v. Sabharwal, 373 Pa. Super. 241, 243, 540 A.2d 957, 958 (1988); Commonwealth v. Quarles, 361 Pa. Super. 272, 280-281, 522 A.2d

[ 385 Pa. Super. Page 252579]

, 583 (1987); Commonwealth v. Morton, 355 Pa. Super. 183, 184, 512 A.2d 1273, 1274 (1986).

Appellants rely on Commonwealth v. Erney, 212 Pa. Super. 174, 239 A.2d 818 (1968), where the Superior Court held that testimony alone of minors that they had been served beer was insufficient to support a conviction under this section. The Court reasoned as follows:

Article IV, § 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, Art. IV, § 493, as amended, 47 P.S. § 4-493(1), provides that it shall be unlawful "for any * * * person to * * * furnish or give any * * * malt or brewed beverages * * * or to permit any * * * malt or brewed beverages to be * * * furnished or given * * * to any minor * * *."

Article I, § 102, defines "malt or brewed beverages" as "any beer, lager beer, ale, porter or similar fermented malt beverage containing one-half of one per centum or more of alcohol by volume, by whatever name such beverage may be called." (Emphasis added.)

The Commonwealth made no effort to prove that the beverage was a "malt or brewed beverage" as defined in the Code, apparently being content to rest on statements by the minors involved that they were served "beer" and that they saw "beer" being served to others.

Id., 212 Pa. Superior Ct. at 176, 239 A.2d at 818-819. But see: Appeal of Charsuner Bar Corp., 68 Pa. Commw. 382, 449 A.2d 106 (1982) (in proceeding to suspend liquor license, testimony of minors that they were served beer, daiquiris and kaluha and cream was sufficient to support finding that licensee served alcoholic beverages to minors in violation of § 493(1) of Liquor Code). Appellants contend, therefore, that the Commonwealth's evidence was inadequate to establish that the "beer" which they served to minors contained at least one-half of one percent of alcohol by volume.

In this case, however, the Commonwealth did not rely solely on the testimony of the minors. In addition to their testimony that they asked for beer, Officer Hazenstab, who had ...


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