Petition for Writ of Certiorari — Gregory Scott Person, Petitioner v. Pennsylvania

IN THE SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF PENNSYLVANlk MAY 30 2Q®

RESPONDENT

vs.

GREGORY SCOTT PERSON

PETITIONER

PETITION FOR CERTIORARI

APPEAL FROM THE ORDER OF THE PENNSYLVANIA SUPREME

COURT AT 550 MAL 2024 ISSUED MARCH 5, 2025 DENYING

REVIEW OF THE ORDER OF THE PENNSYLVANIA SUPERIOR

COURT AT 1249 MDA 2023 FILED ON OCTOBER 1, 2024

AFFIRMING THE SENTENCE ISSUED ON MAY 16, 2023 AND

FILED ON MAY 18, 2023 IN THE COURT OF COMMON PLEAS OF

CLINTON COUNTY, CRIMINAL DIVISION, AT NO. CP-18CR-0000323-2021 BY THE HONORABLE MICHAEL CRAIG P.

MILLER, PRESIDENT JUDGE.

PETITIONER

Gregory Scott Person QP-7768

pro se

Smart Communications/PADOC

Sci-Waymart

PO BOX 33028

St. Petersburg FL 33733

RESPONDENT

R. Thom Rosamilia, Esquire

Assistant District Attorney

Attorney I.D. # 208311

Clinton County Dist. Atty. Office

230 East Water Street

Lock Haven, PA 17745

570-893-4141

trosamilia@clintoncountypa.gov

HECEiVLD

JUN - 6 20S

OFFiCE OF THF C|

SUPREME COl !Rf Fio'

Statement of Questions Involved

1. Is the phrase "any act which corrupts or tends to corrupt" the morals of any

minor in 18 Pa. C.S.A. § 6301 (a)( 1 )(i) vague and indefinite in violation of the

First and Fourteenth Amendments of the United States Constitution ?

J

2. Are defendants Facebook messages constitutionally protected free speech under

the First Amendment of the United States Constitution ?

3. Is there a limitation on the scope of criminal liability of 18 Pa. C.S.A. § 2904(a)

as indicated by the legislative comments by the Joint State Government

Commission, and a fair reading of Model Penal Code section 212.4(1) and the

commentary related to that section ?

1

Table of Contents

Statement of Questions Involved

Page 1

Table of Contents

Page 2

Table of Authorities

Page 3

Citations of Reports and Opinions

Page 4

Jurisdiction of Court

Page 5

Constitutional Provision and Statutes

Page 6

Statement of the Case

Page 7

Argument

Pages 8-16

Pennsylvania Supreme Court Order

Appendix A

Pennsylvania Superior Court Opinion

Appendix B

Trail Court Opinion & 1925(a) Opinion

Appendix C

Joint State Government Commission Report Pages 105-107

Appendix D

Model Penal Code Section 212.4(1)

Appendix E

Trial Transcript page 151

Appendix F

2

Table of Authorities

Papachristou v. Jacksonville

Smith v. Goguen

Chicago v. Morales

City of South Euclid v. Richardson

Commonwealth v. Selbolka

Reno v. ACLU

Coates v. Cincinnati

Houston v. Hill

United States v. Cohen Grocery Co.

Giaccio v. Pennsylvania

lancu v. Brunetti

Commonwealth v. Slocum

United States v. Galo

Lewis v. City of New Orleans

Erznoznik v. Jacksonville

Marinello v. United States

Commonwealth v. Howard

Commonwealth v. Alexander

Jenkins v. Georgia

Commonwealth v. Krasner

Brown v. Entertainment Merchant Assn.

Packingham v. North Carolina

Reed v. Town of Gilbert

Ashcroft v. ACLU

R.A. V. v. City of St. Paul

Texas v. Johnson

Commonwealth v. H.D.

Commonwealth v. Rushing

Ruhlman v. Ruhlman

Commonwealth v. Gamby

Indian Rocks Own. Assn. v. Gladfelter

Commonwealth v. Stewart

Commonwealth v. Tompkins

Perrin v. State

Model Penal Code Section

405 U.S. 156

415 U.S. 566

527 U.S. 41

551 N.E.2d 606

205 A.3d329

521 U.S. 844

402 U.S. 611

482 U.S. 451

255 U.S. 81

382 U.S. 399

588 U.S. 388

86 A.3d 272

239 F.3d 572

415 U.S. 130

422 U.S. 205

584 U.S. 1

257 A.3d 1217

258 A.3d474

418 U.S. 153

352 A.2d 479

564 U.S.786

582 U.S. 98

576 U.S. 155

535 U.S. 564

505 U.S. 377

491 U.S. 397

247 A.3d 1062

99 A.3d416

291 A.3d916

309 A.3d298

28 A.3d 1261

544 A.2d 1384

253 A.3d301

66P.3d21

212.4(1)

3

Page 8, 10

Page 8

Page 8- 9

Page 8

Page 9

Page 9

Page 9

Page 9- 10

Page 9

Page 9- 10

Page 9, 13

Page 10- 11

Page 10

Page 10

Page 10, 13

Page 11

Page 11

Page 12

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Page 14-15

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Page 14-16

CITATION OF REPORTS AND OPINIONS

I. Trial Court Opinion at Docket No. CP-18-CR-0000323-2021 Filed August 2,

2023

II. Trial Court 1925(a) Opinion at Docket No. CP-18-CR-0000323-2021 Filed

October 6, 2023

III. Pennsylvania Superior Court Opinion 1249 MDA 2023; 325 A.3d 823; 2024

PA Super 229 Filed October 1, 2024

IV. Pennsylvaina Supreme Court Order at No. 550 MAL 2024 Filed March 5,

2025

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Jurisdiction of Court

This Court has jurisdiction to review the order of the Pennsylvania Supreme Court

filed March 5, 2025 pursuant to 28 U.S.C. § 1257 (a): Final judgements or decrees

rendered by the highest court of a state in which a decision could be had, may be

reviewed by the Supreme Court by Writ of Certiorari where the validity of a treaty

or statute of the United States is drawn in question or where the validity of a

statute of any state is drawn in question on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States, or where any title, right,

privilege, or immunity is specially set up or claimed under the Constitution or

treaties or statutes of, or any commission held or authority exercised under, the

United States.

5

Constitutional Provisions and Statutes

1. First Amendment

2. Fifth Amendment

3. Fourteenth Amendment

4. 28 U.S.C. § 1257 (a)

5. 1 PA. C.S.A. § 1921 (a), (c)

6. 1 Pa. C.S.A. § 1939

7. 18 Pa. C.S.A. § 2904 (a)

8. 18 Pa. C.S.A. § 5903 (a)(l-9), (c)(1), (c)(2)

9. 18 Pa. C.S.A. § 6301 (a)(l)(i)

10. 18 Pa. C.S.A. § 6318 (a)(4)

11. Model Penal Code section 212.4(1)

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Statement of the Case

On October 19, 2022 petitioner was convicted by a jury of Corruption of

minors (18 PA. C.S.A. § 6301 (a)(l)(i)), Unlawful contact with minors (18 PA.

C.S.A. § 6318(a)(4)), Interference with custody of children (18 Pa. C.S.A. §

2904(a)). Additionally , the court convicted Mr. Person of Sale of Tabacco to

Minors (18 PA. C.S.A. § 6305(a)(2)). Petitioner was deemed a sexually violent

predator (svp) on may 16, 2023. He was sentenced to state prison.

Petitioner raised objections before trial in a Habeas Corpus petition presenting

all questions presented herein to the trial court which were denied. Petitioner

renewed these objections during trial which were again denied. Petitioner filed a

timely post-sentence motion which was granted in part by the trial court. The trial

court acquitted petitioner of Unlawful Contact With Monors (18 Pa. C.S.A. §

6318(a)(4)) finding that the conviction had no valid legal basis upon which to

convict the petitioner. The trial court denied relief on the remaining objections.

Timely appeals followed, from both sides, with the Pennsylvania Superior

Court affirming the trial court in all regards on October 1, 2024. Petitioner filed a

Petition For Allowance of Appeal to the Pennsylvania Supreme Court which

denied review on March 5, 2025.

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Argument

I. Is the phrase "any act which corrupts or tends to corrupt" the morals of any

minor in 18 Pa. C.S.A. § 6301(a)(l)(i) vague and indefinite in violation of the

First and Fourteenth Amendment of the United States Constitution ?

Suggested Answer: YES

18 Pa. C.S.A. § 6301 (a)( 1 )(i) is much akin to the statue struck down by this court

in Papachristou v. City of Jacksonville 405 U.S. 156, 165-170, 92 S. Ct. 839 in

that it is designed as a catch all statute for which a conviction is predicted.

Pennsylvania's statute cast a large net "any act" which literally emcompasses

everything and is constitutionally vague. After arrest the trial courts are left to

decide what actions "corrupt or tend to corrupt" the morals of a minor based on

nothing more than third party subjective determinations which create a

"standardless sweep that allows policemen, prosecutors, court, and juries to pursue

their personal predilections." See: Smith v. Goguen 415 U.S. 566, 575, 94 S. Ct.

1242; Chicago v. Morales 527 U.S. 41, 65, 119 S. Ct. 1849. That which "corrupts

or tends to corrupt lends itself to harsh and discriminatory enforcement which has

been found to be unconstitutional. See: City of South Euclid v. Richardson 551

N.E.2d 606, 610 (Ohio 1990). The Pennsylvania Superior Court has held that

"actions that tend to corrupt the morals of a minor are those that would offend the

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Commonsense of the community and the sense of decency, propriety and morality

which most people entertain." See: Commonwealth v. Selbolka 205 A.3d 329, 339

(Superior Court opinion, Appendix B, Page 6). This holding specifies no standard

of conduct at all and allows for a completely subjective determination by third

parties, which allow those parties to react to nothing more than their own personal

predilections for which conduct is offensive to community standards, the sense of

being indecent, improper, or immoral. This court has consistantly invalidated

statutes which require nothing more than a subjective determination as to whether

conduct is "indecent" Reno v. ACLU 521 U.S. 844, 870871, 117 S. Ct. 2329, or

"annoying" Coates v. Cincinnati 402 U.S. 611, 614, 91 S. Ct. 1686, or "words or

conduct that offend or annoy police" Houston v. Hill 482 U.S. 451, 464-467, or

"loitering" Chicago v. Morales 527 U.S. 41, 119 S. Ct. 1849, or whether

something is "unjust and unreasonable" United States v. Cohen Grocery Co. 255

U.S. 81, 89, 41 S. Ct. 298. Moreover the Superior Courts holding as to what

conduct violates the statute and the language of the statute itself encourage view­

point bias by police, prosecutors, courts, and juries. See: lancu v. Brunetti 588

U.S. 388, 390-399, 139 S. Ct. 2296. The Pennsylvania legislature has not placed

any limiting language within the statute to guide law enforcement or which may

guide the courts as to what conduct violates the statute and this court has

invalidated statutes which fix no ascertainable standards. See: Giaccio v.

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Pennsylvania 382 U.S. 399, 86 S. Ct. 518. The Pennsylvania Superior Courts

decision in Commonwealth v. Slocum 86 A.3d 272, 277-280 explains that 18 Pa.

C.S.A. § 6301 (a)( 1 )(i) is designed to broad statute, and "that it would be

impossible to enumerate every particular act" for which this statute would apply,

this fact makes it impossible for any individual of average intelligence to know

what the statute proscribes. Likewise, Federal Courts have found the statute

"broad enough to include allowing a minor to view an "R" rated video." See:

United States v. Galo 239 F.3d 572, 582. Obviously the language of the statute is

so indefinite that it allows application of the statute to a multitude of

constitutionally protected activity at the sole discretion of the police and local

prosecutor. This court has invalidate statutes which give the police the power to

choose the offending conduct. See: Houston v. Hill 482 U.S. 451, 464-467; Lewis

v. City of New Orleans 415 U.S. 130; Papachristou v. City of Jacksonville 405

U.S. 156, 165-170. As demostrated above, not all "R" rated videos or movies

contain proscribed material. Individuals have the opportunity to avoid both the

audio and video portions of said videos. See: Erznoznik v. Jacksonville 422 U.S.

205, 212-214. This court has counseled that to rely upon presecutorial discretion

to narrow the otherwise wide-ranging scope of a criminal statute's highly abstract

general language places great power in the hands of the prosecutor. Doing so risks

the persuit of personal predilections which result in nonuniform execution of that

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power across time and geographical locations resulting in arbitrary prosecutions

which undermine the public confidence in the criminal justice system. A criminal

statute should not be construed on the assumption the the government will use it

responsibly. See: Marinello v. United States 584 U.S. 1,11. The Commonwealth

pursued prosecution based on the personal predilections of the state trooper and

the local prosecutor that petitioner's facebook messages were obscene. See:

Appendix F (trial transcript page 151, line 8-12); Appendix B (Superior Court

opinion, pages 18-25). The state prosecutor's personal predilections are made more

prevalent here and evidenced by the fact that the state persued prosecution of 18

Pa. C.S.A. § 6318(a)(4) (Unlawful contact with a minor), which both the trial

court and the Superior Court found had no valid legal basis. See: Appendix C,

(trial court opinion, pages 5-8); Appendix B, (Superior Court opinion, pages

18-25). This fact alone should give this court pause and warrant further review of

this matter. Additionally two current justices of the Pennsylvania Supreme Court

have questioned the constitutionality of this statute. See: Commonwealth v.

Howard 257 A.3d 1217, 1233-1237 (Pa. 2021) (Justice Wecht); Commonwealth v.

Slocum 86 A.3d 272, 285 & N.5 ( Justice Donohue).

II. Are Petitioner's Facebook messages constitutionally protected free speech

under the First Amendment of the United States Constitution ?

Suggested Answer: YES

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The Commonwealth pursued prosecution of 18 Pa. C.S.A. § 6301 (a)(1 )(i) based

on the personal predilections of the state trooper and local prosecutor's belief that

the content of petitioner's Facebook messages were obscene in violation of 18 Pa.

C.S.A. § 5903(a). Pennsylvania has adopted the Miller standard of obscenity. See:

Commonwealth v. Alexander 258 A.3d 474. Only depictions of patently offensive

hard-core pornography or hard-core sexual conduct may be subjected to

prosecution. See: Jenkins v. Georgia 418 U.S. 153, 160; Commonwealth v.

Krasner 352 A.2d 479, 481-482. Speech on the internet receives First Amendment

protection. See: Brown v. Entertainment Merchants Assoc. 564 U.S. 786, 790;

Packingham v. North Carolina 137 S. Ct. 1730. Government regulation of speech

is content based if a law applies to particular speech because of the topic discussed

or the ideas or message expressed. See: Reed v. Town of Gilbert 576 U.S. 155,

164. Government has no power to restrict expression because of its message, its

ideas, its subject matter, or its content. See: Ashcroft v. ACLU 535 U.S. 564, 573.

The State may not proscribe speech due to its own disagreement with the ideas

expressed or because those ideas are unpopular in society. See: R.A.V. v. City of

St. Paul 505 U.S. 377, 382; Texas v. Johnson 491 U.S. 397, 414. The obscenity

exception to the First Amendment does not cover whatever the legislature, the

police, or a local prosecutor find shocking. See: Brown v. Entertainment

Merchants Assoc. 564 U.S. 786, 792-793. Likewise, the state does not posses a

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free-floating power to restrict the ideas to which minors are exposed, nor may

speech be suppressed solely to protect the young from ideas or images that the

police, local prosecutor, or a legislative body thinks unsuitable for them. See:

Brown v. Entertainment Merchants Assoc. 564 U.S. 786, 794; Erznoznik v.

Jacksonville 422 U.S. 205, 212-214. Petitioner reiterates that none of the content

of the Facebook messages violate any part of Pennsylvania's obscenity statute. 18

Pa. C.S.A. § 5903 (a)(l-9), (c)(1), (c)(2). Clearly the state has engaged in view­

point bias by claiming that petitioner's Facebook messages "offend the

commonsense of the community, and the sense of decency, propriety, and morality

which most people entertain." Speech which offends is itself a view-point. See:

lancu v. Brunetti 588 U.S. 388, 390-399, 139 S. Ct. 2296. Thus petitioner posits

that the Facebook messages are not obscene as a matter of law, and are therefore

constitutionally protected speech under the First Amendment.

III. Is there a limitation on the scope of criminal liabilty of 18 Pa. C.S.A. § 2904

as indicated by the legislative comments by the Joint State Government

Commission, and a fair reading of Model Penal Code section 212.4(1) and the

commentary related to that section ?

Suggested Answer: YES

Petitioner posits that 18 PA. C.S.A. § 2904(a) (interference with custody of

13

children) does not apply to a brief act, thus petitioner's 22 minute trip to the store

can not trigger criminal liability. The Pennsylvania Legislature has declared that

courts must ascertain and effectuate the intent of the Legislature. See: 1 PA.

C.S.A. § 1921; Commonwealth v. H.D. 247 A.3d 1062, 1067 N.4: Commonwealth

v. Rushing 99 A.3d 416, 424-425 (Pa. 2014). When interpreting or applying a

statute, it is appropriate to consider official comments. See: 1 Pa. C.S.A. § 1939;

Ruhlman v. Ruhlman 291 A.3d 916, 921. It is also appropriate to consult the

Model Penal Code authors explanation of a provision. See: Commonwealth v.

Gamby 309 A.3d 298, 309: Commonwealth v. H.D. 247 A.3d 1062, 1067, 1070

N.5. Notably the Superior Court did not consult the Model Penal Code, nor read

any of it's commentary related to section 212.4(1) and specifically avoided any

discussion of that specific section. Reports and comments available to the general

assembly at the time of final passage of a statute may be used to construe the

statutory provision. See: Indian Rocks Prop. Owners Ass'n v. Gladfelter 28 A.3d

1261, 1272 (Pa. 2011). Thus the Superior Court should have consulted both the

Joint State Government Report (Appendix D, pages 105-107) and Model Penal

Code section 212.4(1) (Appendix E), and its commentary which is unavailable to

this petitioner at pages 257-258. In Commonwealth v. Stewart 544 A.2d 1384,

1388 the Superior Court stated "we are persuaded that it is not merely the act of

taking or enticing that constitutes the offense, but rather the continued

14

maintainance of the child outside of the custodian's dominion." Additionally the

court stated (indeed as appellee correctly observes, if the statute was only intended

to prohibit the physical taking, there would be no reason for the Joint State

Government Commission to have commented that "removal of the child for a brief

period is not covered by this section.)" (Appendix B, Superior Court opinion,

pages 14-15). The Superior Court later reiterated this point in Commonwealth v.

Tompkins 253 A.3d 301, No. 939 MDA 2020 stating " After the initial taking, the

act of interference continues only if the individual continually maintains the child

outside of the custody of the legal custodian." Citing Stewart 544 A.2d at 1388.

The second element of 18 Pa. C.S.A. § 2904(a) "the continued maitainance of the

child outside of the custodian's dominion" is premised upon the comment by the

Joint State Government Commission that "removal of the child for a brief period is

not covered by this section" (Joint State Government Report, Appendix D, page

106) and is supported by Model Penal Code & Commentaries, part II, section

212.4(1), pages 257-258, (Am. Law Inst. 1980). See: Perrin v. State 66 P.3d 21, 39

(discussion of a protracted period). The commentary to section 212.4(1) explains

that this definition was not intended "to reach every de minimus instance of

unauthorized movement of a child." The commentary then discusses an earlier

draft which undertook to distinguish between significant and insignificant acts of

custodial interference by limiting liability to acts of removal "for so extended a

15

period as would be likely to substantially supplant the custodian's authority over

the child." The council found this language cumbersome and concluded the same

idea is conveyed adaquately by defining the offense as a taking from custody. This

formulation connotes a substantial interference with parental control, as

distinguished from mere physical removal from the custodial premises for a brief

period. Without reading the accompanying commentary, one would be hard-

pressed to deduce this limitation on the scope of liability from the wording of

212.4(1) itself. Model Penal Code & Commentaries, pp.257-258. Petitioner posits

that the Pennsylvania Courts have deprived petitioner of fair due process under the

Fifth and Fourteenth Amendments to the United States Constitution by not

performing a function the courts are required by the legislature to perform, thus

depriving petitioner of an immunity from prosecution which the Pennsylvania

State Legislature clearly intended to be available.

Conclusion

Based on the foregoing facts plead herein petitioner request this honorable court to

order a review of this case.

ll-M-25

Date

Signature

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