Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Butler County, CA No. C985 of 1986, Book 84, Page 419.
Howard N. Stark, Allentown, for appellant.
Robert F. Hawk, Asst. Dist. Atty., Butler, for Com.
Wieand, Del Sole and Melinson, JJ. Del Sole and Melinson, JJ. concur in the result.
[ 386 Pa. Super. Page 620]
Marjorie McCool was tried by jury and was found guilty of selling obscene materials in violation of 18 Pa.C.S. § 5903(a)(2).*fn1 She was sentenced to make restitution and undergo imprisonment for not less than three (3) months nor more than six (6) months, to be followed by probation for an additional year. On direct appeal, McCool challenges her conviction on federal constitutional grounds and argues that the evidence was insufficient to sustain the guilty verdict. We find no merit in the arguments which she has advanced and affirm the judgment of sentence.
On September 22, 1986, an undercover state trooper entered the Adult Book Store at 693 Pittsburgh Road, Butler, for the purpose of determining the presence of obscene materials depicting homosexual activity. He purchased from Marjorie McCool, who was employed as a clerk, an eight millimeter film depicting homosexual activity entitled "California Hot Dog, in the Gardener." At McCool's trial, the trooper's testimony established these facts, and the Commonwealth showed the film to the jury. The Commonwealth then rested. McCool offered no evidence, and the jury found her guilty of violating the statute.
In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Supreme Court established a tripartite test for determining those materials which are obscene and can be prohibited without infringing upon constitutional guarantees of freedom of speech and of the press. That
[ 386 Pa. Super. Page 621]
tripartite test has been mirrored by 18 Pa.C.S. § 5903(b), which defines obscene materials as follows:
Any literature, including any book, magazine, pamphlet, newspaper, storypaper, comic book or writing, and any figure, visual representation, or image including any drawing, photograph, picture or motion picture, if:
(1) the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
(2) the subject matter depicts or describes in a patently offensive way, sexual conduct of a type ...