Commonwealth v. Greenich ( 1992 )

CIRILLO, Judge,

concurring and dissenting:

I join the majority in affirming the judgment of sentence imposed on Greenich. I cannot, however, join the majority’s disposition of the sixth issue on appeal: whether the trial court erred in denying appellant Fetzner the opportunity to present his proffered testimony regarding scienter, inasmuch as, such disallowance rendered 18 Pa.C.S.A. § 5903 unconstitutional as applied? Our Crimes Code, 18 Pa.C.S. § 101 et seq., lists among its purposes the following two principles:

(3) To safeguard offenders against excessive, disproportionate or arbitrary punishment.

(4) To give fair warning of the nature of the conduct declared to constitute an offense, and of the sentences that may be imposed on conviction of an offense.

18 Pa.C.S. § 104. I believe that Fetzner has been subjected to arbitrary punishment since he could not possibly have received fair warning that his conduct was criminal. For this reason, I respectfully dissent.

Obscene materials are not protected speech under the First Amendment. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973); Long v. 130 Market Street Gift & Novelty of Johnstown, 294 Pa.Super. 383, 440 A.2d 517 (1982); see also Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984); Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985); Commonwealth v. Stock, 346 Pa.Super. 60, 499 A.2d 308 (1985). A state may regulate obscenity through criminal sanctions where it can demonstrate a legitimate interest in such regulation. Long, supra; Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983). Thus, the General Assembly enacted section 5903 of the Crimes Code, which states:

(a) No person, knowing the obscene character of the materials or performances 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. ...

18 Pa.C.S. § 5903(a)(2).¹ Material, including any book or magazine, is obscene 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 described in this section; and

(3) the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.

18 Pa.C.S. § 5903(b). See also Miller, supra. The legislature defined “knowing” as:

having general knowledge of, or reason to know or a belief or ground for belief which warrants further inspection or inquiry of, the character and content of any material described therein which is reasonably susceptible of examination by the defendant.

Id.

Problems arise, however, in determining whether material is obscene or merely pornographic. Webster’s Dictionary defines obscenity as “disgusting to the senses: REPULSIVE [;] abhorrent to morality or virtue [or] designed to incite lust or depravity.” Webster’s New Collegiate Dictionary 815 (9th ed. 1986). Pornography is defined by Webster’s as “the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement [or] material (as books or a photograph) that depicts erotic behavior and is intended to cause sexual excitement.” Id. at 916. Simply put, all obscenity is pornographic, yet not all pornography is obscene. The key importance of this distinction is that the statute may only prohibit that which is obscene, not pornographic. To determine what is obscene as opposed to pornographic, we rely on juries. It is the jury that decides whether a particular book or magazine contains obscene materials, not an individual, not the legislature, not law enforcement officials, and not a judge. Here lies the downfall of Fetzner’s obscenity conviction.

It is not until the jury stamps pornographic materials with the label of obscenity that a person is notified that what he or she sold was actually obscene. How can a person, therefore, knowingly sell obscene materials without notice that what he or she sells is obscene in the first place? To start, a person might read the statutory definition of “sexual conduct” since the depiction or description of sexual conduct is necessary to convict under the statute. The statute, at the time of the offense, defined sexual conduct as “[pjatently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.” 18 Pa.C.S. § 5903(b) (emphasis added).² The determination of patent offensiveness is one made by a jury; no seller of sexually explicit materials can be expected to know if a jury will later find them patently offensive.

Under the statute, a merchant may be convicted where the merchant has general knowledge of the magazine’s contents, reason to know or a belief or a ground for belief that an inspection into ;the character of the magazines is necessary. See 18 Pa.C.S. § 5903(b). Here, Fetzner stipulated to the fact that he knew the nature of the contents of the magazines. A merchant may know that the magazines are pornographic, yet not know whether or not they are obscene. Fetzner did, however, make an attempt to inquire into the obscene nature of the materials,' and evidence in the record suggests that after his own investigation, he could conclude that these items were not obscene.

During argument on pre-trial motions, the trial court heard statements from the defense attorney which suggested that, in an attempt to ascertain whether the materials Fetzner was selling were obscene, he contacted the Erie County District Attorney’s Office and the Erie County Coalition Against Violent Pornography. The district attorney’s office was not willing to assist Fetzner in censoring the materials. It is unclear what response the Coalition gave Fetzner. Further, the Pennsylvania State Police had previously seized and reviewed certain magazines in the store but did not charge him under the statute on that occasion. These seized materials were also returned to Fetzner. Fetzner also was tried twice for selling obscene materials. A previous trial in Erie County for obscenity, apparently on similar yet not identical material, ended in acquittal for Fetzner. However, prior to his arrest on these charges, Fetzner had been convicted in Crawford County for a violation of section 5903.

The trial court did not permit Fetzner to present this evidence of his confusion regarding whether the materials were obscene under the contemporary community standards. Excluding the evidence, in my opinion, constituted reversible error by the trial court. “Admission or exclusion of evidence lies within the sound discretion of the trial judge.” Commonwealth v. Barnhart, 345 Pa.Super. 10, 33, 497 A.2d 616, 628 (1985). In order to reverse a trial court order excluding evidence, a reviewing court must find an abuse of discretion and actual prejudice. Commonwealth v. Wagner, 383 Pa.Super. 128, 556 A.2d 462 (1989). It is axiomatic that any evidence tending to prove or disprove an element of a crime is admissible as relevant. See Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988) (accused has fundamental right to present relevant, defensive evidence). The evidence excluded was intended to disprove the element of a knowing violation of the obscenity laws. Thus, evidence of Fetzner’s confusion was relevant and should have been presented to the jury to determine whether Fetzner committed a knowing violation. Uhrinek, supra.

Moreover, the evidence itself concerns whether Fetzner indeed had notice that his magazine were obscene. The evidence shows that he heeded the statutory definition of knowledge and made inquiries to law enforcement officials concerning the potential obscenity of the materials he sold, or at a minimum, materials similar to those he had sold in the past. Obviously, magazines are available for limited periods of time. A salesperson of pornographic magazines may, therefore, have to rely on comparing previously scrutinized materials with those put on sale later. In Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840 (1967), the Pennsylvania Supreme Court set forth two ways an individual may attempt to discern whether or not material is obscene:

There are two yardsticks by which contemporary community standards may be judged. One is to compare the challenged book to other books which have either been held entitled to the protection of the First Amendment or, in the absence of litigation, which meet contemporary community standards and are substantially similar to the challenged book. The other is to consider the reception the book received from the community when it was released.

Clearly, Fetzner had attempted to satisfy this first “yardstick.” He compared the materials to the earlier prosecution materials and inquired with local officials and groups about the contemporary community standards to determine whether these materials were obscene or not. In my opinion, Fetzner did just what the statute required him to do; however, he unfortunately received an unsympathetic and unhelpful response to his inquiries.

Allowing testimony of these prior events could have negated the Commonwealth’s proof of Fetzner’s knowledge that the materials he sold were obscene. I, therefore, believe the trial court abused its discretion by failing to allow Fetzner to testify about his inquiries, prior adjudications, and the prior confiscations at his store by the district attorney. Barnhart, supra; Uhrinek, supra; Wagner, supra. Since Fetzner attempted to obtain notice of the contemporary community standards and present this evidence to demonstrate the basis for his claim of lack knowledge or notice, he should not be penalized by the courts. Not allowing such evidence effectively denied Fetzner a defense to the charge and constituted, in my opinion, actual prejudice. Wagner, supra. Moreover, the majority, by affirming the trial court’s decision, eliminates the mens rea requirement of knowledge for a violation of the statute and places, in its stead, strict liability. I believe this is so because the nature of this obscenity trial was such that once the jury determined the magazines to be obscene, Fetzner had no available defense. Moreover, the failure to allow such proof frustrates the explicit policies of the crimes to decry arbitrary punishment and provide notification of criminal conduct. See 18 Pa.C.S. § 104(3) & (4).

I would, therefore, reverse Fetzner’s judgment of sentence and remand for a new trial. I do, however, agree with my esteemed colleagues in the majority that Greenich’s judgment of sentence should be affirmed.

1 . After these offenses occurred, the obscenity sections of the Crimes Code were amended by Act of December 19, 1990, P.L. 1332, No. 207, § 1, effective on that date. The changes, in section 5903(a)(2) solely increase the age of proscription for obscenity sales, etc., to eighteen-year-olds.

2 . The amended section 5903(b) defines sexual conduct as:

Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, anal or oral sodomy and sexual bestiality; and patently offensive representations or descriptions of masturbation, excretory functions, sadomasochistic abuse and lewd exhibition of the genitals.

18 Pa.C.S. § 5903(b) as amended by Act of December 19, 1990, P.L. 1332, No. 207, § 1, effective immediately.