Commonwealth v. Duncan

Opinion by

Mr. Chief Justice Jones,

On November 23, 1971, appellant was tried by the court without a jury and was convicted of loitering and prowling under the Act of June 24, 1939, P. L. 872, §418, as amended, 18 P.S. §4418 (recodified as 18 Pa. S. §5506). Following denial of post-trial motions, appellant was sentenced to two to twelve months’ imprisonment. On appeal, the Superior Court affirmed with three judges dissenting.¹ We granted allocatur limited “to the constitutional issue of vagueness and the issue of determining the extent of Section 418 with respect to the use and meaning of the word ‘around’ in the statute.”

The undisputed facts giving rise to this prosecution are that appellant entered the rear fire tower of St. Joseph’s Hospital in Philadelphia on April 2, 1971, at approximately 9:25 p.m. after the end of visiting hours. In response to a call by a nurse who heard noise in the tower, the police proceeded to the area and arrested appellant at 9:30 p.m. on the third floor landing of the fire tower.

The statute under which appellant was convicted provides: “Whoever at nighttime maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor....” Act of June 24,1939, P. L. 872, §418, as amended, 18 P.S. §4418 (recodified as 18 Pa. S. §5506). Because of the limitations placed on our grant of allocatur in this case, the presence or absence of maliciousness is not presently at issue. Bather, we must assume for our purposes that appellant was maliciously loitering and prowling when he was discovered in the fire tower of the hospital. Thus, we must now consider (1) whether or not this activity comes within the coverage of the statute and (2) whether or not the statute is unconstitutionally vague.

In arguing that the statute does not cover indoor prowling and loitering, the appellant has relied heavily on the principle of strict construction of penal statutes. In so doing, however, he has ignored the complementary principle that strict construction does not require “that the words of a criminal statute [be] given their narrowest meaning or that the lawmaker’s evident intent [be] disregarded.” Commonwealth v. Mason, 381 Pa. 309, 312, 112 A.2d 174, 175 (1955). In Mason, the appellant’s argument for a narrow definition of “inducing” under the Securities Act was rejected in favor of a broader, more encompassing definition. 381 Pa. at 313, 112 A.2d at 176. The appellant had argued that the alleged victim’s concession that he had entered into the questioned transaction willingly precluded a finding of inducement on his part. The Court, however, concluded that the evidence supported a finding that the transaction “was brought about or effected or induced by defendant” and held that such facts would constitute “inducing.” 381 Pa. at 313-14, 112 A.2d at 176. By so holding the Mason Court refused to adopt the narrowest accepted definition; rather, the Court opted for a broader, more flexible definition which was more in line with the general legislative purpose underlying the Securities Act.

Another illustration of the principle modifying the rule of strict construction is the case of Commonwealth v. Butler, 189 Pa. Superior Ct. 399, 150 A.2d 172 (1959). There, the appellant had been convicted of carrying a firearm “concealed on or about his person” without a license even though the weapon was sticking out of appellant’s pocket at the time. 189 Pa. Superior Ct. at 401, 150 A.2d at 173. The appellant argued that the word concealed as used in the statute was speaking of total concealment. The court conceded that some jurisdictions with similar statutes had adopted such an interpretation and that there were no Pennsylvania cases on point. Nevertheless, stating that the courts have a duty “to see to it that the legislative intent is not thwarted by a construction which is unreasonably rigid and inflexible” and that the primary evil which the act sought to prevent was the carrying of unlicensed weapons rather than their concealment, the Superior Court opted for the broader reading. 189 Pa. Superior Ct. at 402-03, 150 A.2d at 173.

The construction urged by appellant in the instant case thwarts the obvious legislative intent behind the statute. While we concede that the word abound can be used to mean “outside,” its use in the present context connotes the more flexible definition — “in the vicinity or neighborhood.” Webster’s Third New International Dictionary 120 (1971). The statute in question was obviously designed to alleviate the danger to human life and quiet enjoyment of one’s dwelling which is presented by the nighttime loitering or prowling of malicious-minded individuals. Clearly, this danger is, if anything, intensified when the proscribed activity occurs inside, rather than outside, the dwelling. Consequently, to hold that only outdoor, but not indoor, loitering or prowling is proscribed by the statute would be to reach an absurd result.² Such a result is at variance with the above cited authorities as well as the mandate of the Statutory Construction Act of 1972.³

Moreover, even under the appellant’s construction of the term around (i.e., outside to the exclusion, of inside), we are satisfied that appellant’s presence in the fire tower, being outside the dwelling areas of the hospital, would support his conviction. In this regard, we note that the dissenting opinion in the Superior Court conceded this point. Commonwealth v. Duncan, 222 Pa. Superior Ct. 553, 556 n. 3, 294 A.2d 907, 908 n. 3 (1972).

Finally, we have no difficulty with appellant’s vagueness argument. The statute gives adequate warning to potential offenders. As stated by Judge Lipez in Commonwealth v. McDermott, 11 Pa. D. & C. 2d 601, 601 (1956), after he had examined and defined each element of the present offense individually: “In plain words, any person of ordinary understanding can readily know that if he moves around a place which somebody else uses for living purposes, at nighttime, in a stealthy or sneaky manner with an evil intention, he will run afoul of the law and be subject to punishment. This is a clearly defined standard which the ordinary person can understand.”

For the foregoing reasons, the judgment of sentence is affirmed.

Mr. Justice Nix took no part in the decision of this case.

1 Commonwealth v. Duncan, 222 Pa. Superior Ct. 553, 294 A.2d 907 (1972).

2 It may be suggested that the existence of the separate crime of unlawful entry (Act of November 19, 1959, P. L. 1518, §1, 18 P.S. §4901.1, repealed June 6, 1973), indicates that the statute in issue here should be construed as appellant urges. We reject this argument for two reasons. First, the simultaneous violation of more than one criminal statute is not uncommon and certainly has no effect on the validity of the respective penal statutes. Secondly, the crime of unlawful entry as defined in the statute does not necessarily cover all situations of indoor loitering or prowling.

3 Act of December 6, 1972, P. L. 1339, §3, 1 Pa. S. §1922.