Motion — Cohen v. Pennsylvania

No. 88-898

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1988

LEE LEWIS COHEN AND

TERRY GEORGE RUGER,

Appellants

Vv.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

ON APPEAL FROM THE

SUPERIOR COURT OF PENNSYLVANIA

MOTION OF APPELLEE TO DISMISS

LeROY S. ZIMMERMAN

Attorney General

Paul M. Yatron

First Deputy Attorney General

Director, Criminal Law Division

Robert A. Graci

Chief Deputy Attorney General

Appeals & Legal Services Section

Andrea F. McKenna

Deputy Attorney General

Appeals & Legal Services Section

Richard W. Sponseller

Deputy Attorney General

(Counsel of Record)

Office of Attorney General

Commonwealth of Pennsylvania

1600 Strawberry Square

Harrisburg, PA 17120

(717) 787-6348

TABLE OF CONTENTS

Table of Authorities. ...sscsces ee

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Jurisdictional Statement............

2. a a. a

Argument..

Conclusion

(1)

Cases

Commonwealth v. Potts

314 Pa.Super. 256,

466 A.2G LiZ7T CAPSS) sc csc cvive

Commonwealth v. Robbins

358 Pa.Super. 225,

516 A.2d 1266 (1986),

appeal denied ___ Pa.

326 A.2G SEO CUPST) « vccacsevcas

Rose v. Locke

423 U.B. 46 (i973) ..cecscvass

Roth v. United States

334 U.B. O76, CASTE} cc sccvccs

United States v. Harriss

S67 U.G. G42 CESSS}. cer ctcens

Statutes

A 90.6.8. @ 0904). <6 bcs eee

£0 90.C.6. § 9008: cvs

1S Pe.c.8. § MS)... 5552

28 0.8.C. & 2987) 06 vce

20 U.8.C. | 1aS7C2) sci ckckukxeeeeas

(ii)

MOTION TO DISMISS

The Commonwealth of Pennsylvania

moves the Court to dismiss the appeal

herein on the grounds that the questions

on which the decision of the appeal

depends are so unsubstantial as not to

need further argument.

State Statute Involved

Appellants raise the question of

whether Pennsylvania's statute prohibit-

ing prostitution (Act of December 6,

S078; (Bibs: 1608, Bo, 334, 93 it: OO

amended by the Act of October 4, 1978,

P.L. 909, No. 173, § 2, #£=xpresently

codified at 18 Pa.C.S. § 59/2) is void

for vagueness as applied to them, owners

and operators of a business which al-

lowed male customers to purchase mas-

turbation performed by nude or near-nude

female employees.

eile

Jurisdictfonal Statement

Cohen and Ruger have improperly in-

voked the jurisdiction of this Court

under 28 U.S.C. § 1257(2).

By Public Law 100-352, signed June

27, 1988, and effective in ninety days,

section 1257 of Title 28, United States

Code was amended so as to delete section

1257(2) and in its place provide that

where the validity of a statute of any

state is drawn in question on the ground

of its being repugnant to the Constitu-

tion of the United States review may be

had in this Court by a writ of cer-

tiorari. 28 U.S.C. § 1257(a).

Cohen and Ruger contend that the

statute which prohibits prostitution in

Pennsylvania is violative of the due

process requirements of the Fourteenth

Amendment.

Public Law 100-352 became effective

on September 26, 1988. The judgment

from which an appeal could be taken to

this Court ‘was the Pennsylvania Supreme

Court's denial of a petition for allow-

ance of appeal. This order was entered

October 5, 1988.

Accordingly, Cohen and Ruger must

proceed under section 1257, Title 28,

United States Code as amended on June

27, 1988, and this action should be

brought before this Court as a petition

for a writ of certiorari to the Penn-

sylvania Supreme Court.

Statement of Facts

Cohen and Ruger were the owners and

operators of the Taj Mahal II, a massage

parlor operating in Dunnstable Township,

Clinton County, Pennsylvania. Among the

services offered by their establishment

_— a full body massage given to male

customers by nude female masseuses.

Male customers were able to purchase a

“hand release,” a euphemistic term for

masturbation of the customer to the

point of ejaculation.

Cohen and Ruger were arrested and

convicted of charges of promoting pros-

titution of another person by owning,

controlling, managing or supervising a

house of prostitution. Following the

denial of post-trial motions, Cohen and

Ruger appealed to the Superior Court of

Pennsylvania arguing, inter alia, that

Pennsylvania's statute prohibiting pros-

titution was unconstitutionally vague as

applied to them in that the definition

of “sexual activity” was a limited de-

finition which did not include masturba-

tion. Pennsylvania's Superior Court

a, a. ee

rejected this argument by relying on a

prior decision based on an identical

issue, but decided after the conviction

of Cohen and Ruger. Cohen and Ruger

sought allowance of appeal from the

Pennsylvania Supreme Court. Allowance

of appeal was denied in an order entered

October 5, 1988.

Argument

A statute will be found void for

vagueness if it “fails to give a person

of ordinary intelligence fair notice

that his contemplated conduct is for-

bidden by the statute.” United States

vy. Harriss, 347 U.S. 612, 617 (1954).

Here, the relevant inquiry is whether

the statute prohibiting prostitution in

Pennsylvania gives the requisite warning

that selling masturbation in the normal

course of business is engaging in or

promoting prostitution. A common sense

reading of the statute suggests that it

does.

Pennsylvania establishes the offense

of prostitution by providing that:

A person is guilty of

prostitution; a misde-

meanor of the third

degree, if he or she:

(1) is an inmate of a

house of prostitution or

otherwise engages in

sexual activity as a

business:

18 Pa.C.S. § 5902. Sexual activity is

defined as “includ{ing) homosexual and

other deviate sexual relations.” 18

Pa.C.S. § 5902(f£).

In construing the requirement that

adequate notice be given of proscribed

activities, the Court has said: “*[TJhe

Constitution does not require impossible

standards; all that is required is that

the language conveys sufficiently de-

ee

ee Oe AS om a 2

finite warning as to the proscribed con-

duct when measured by common understand-

ing and practices.” (emphasis supplied)

Roth v. United States, 354 U.S. 476, 491

(1974).

When the language of Pennsylvania's

statute is viewed in the light of common

understanding and practices, the ques-

tion becomes: if genital massage, to

the point of sexual climax, administered

to nude male customers by nude or near-

nude female employees is not sexual

activity for hire, what is it? The gov-

ernment suggests that to label such

activity as anything other than sexual

activity for hire requires a deliberate

rejection of common sense and _ under-

standing.

Cohen and Ruger argue that the

statute is impermissibly vague as

applied to them in that the statute does

not specifically list masturbation as

falling within the realm of = sexual

activity. Again, logic and common sense

lead to the conclusion that masturba-

tion, whose sole purpose is sexual grat-

ification, is readily and simply under-

stood to be sexual activity. Such a

conclusion is supported by Pennsylva-

nia's adoption of a principle of statu-

tory construction that "words and

phrases shall be construed according to

rules of grammar and according to their

common and approved usage: Act of

December 5, 1972, P.L. 1339, No. 290, §

3, codified at 1 Pa.c.S. § 1903.

In Rose v. Locke, 423 U.S. 48, 49-50

(1975), this Court said that the pro-

hibition against excessive vagueness

"does not invalidate every statute which

a reviewing court believes could have

been drafted with greater precision.

All the Due Process clause requires is

Pe ata hac ay

that the law give sufficient warning

that men may conduct themselves so as to

avoid that which is forbidden."

In 1983, well before appellants'

1986 arrest and conviction, Penn-

sylvania's intermediate appellate court

determined that the statute prohibiting

prostitution was “directed at a defined

evil (commercial exploitation of sexual

eretifticetieos). « «* mmonw OE

Potts, 314 Pa.Super. 256, 273, 460 A.2d

1127, 1136 (1983) (statute's prohibition

against sexual activity for hire encom-

passed defendant's agreement to perform

fellatio for hire). This decision es-

tablished the statute's underlying pur-

pose as the prohibition of the sale of

sexual services and made clear that in

construing the statute, the Pennsylvania

courts would not focus on the means

through which sexual gratification was

ia

achieved, but rather on whether that

gratification was commercially exploited.

Pennsylvania's prohibition against

engaging in sexual activity as a

business clearly reaches the _ sale of

masturbation. This conclusion is easily

arrived at by a common sense under-

standing of what constitutes sexual

activity. Accordingly, this appeal

presents no substantial question for

this Court and should be dismissed.

Finally, this matter should not be

heard because it is now settled in Penn-

Sylvania that “sexual activity”, as used

in the statute prohibiting prostitution

includes masturbation. In Commonwealth

v. Robbins, 358 Pa.Super. 225, 516 A.2d

1266 (1986), appeal denied as Pa. ‘

526 A.2d 538 (1987), Pennsylvania's in-

termediate appellate court considered

the identical question which appellants

herein seek to raise: namely, whether

the prostitution statute prohibits the

commercial exploitation of mastui>a-

tion. The Superior Court applied a

"common sense and understanding

analysis" to the statute and concluded

that "sexual activity," as defined in

the statute included masturbation. In

so doing, the Superior Court’ wrote:

In the mind of a man of

‘common intelligence’ the

term ‘sexual activity'

encompasses masturbation

as a business. .. . It

is difficult to believe

that any man of common in-

telligence would consider

the massaging of the

genitals of an _unclothed

man by a nude or partially

nude female to be anything

other than sexual activity

és When the term

‘sexual activity’ is ex-

amined in the light of the

statute's underlying pur-

pose of prohibiting com-

mercial exploitation of

sexual gratification and

also in light of its

common and approved usage,

there is no doubt’ that

masturbation for hire

falls within the statute's

proscription.

358 Pa.Super. at 230, 516 A.2d 1266,

1268-1269 (1986).

Accordingly, the matter is settled

in Pennsylvania and the resolution of

the matter presented to the Court by

Cohen and Ruger is of importance only to

themselves.

Conclusion

Wherefore, the Commonwealth of Penn-

sylvania respectfully submits that the

question upon which this case depends is

so unsubstantial as not to need further

argument, and respectfully moves’ the

Court to dismiss this appeal.

Respectfully submitted,

LeROY S. ZIMMERMAN

Attorney General

Paul M. Yatron

First Deputy Attorney General

Director, Criminal Law Division

Robert A. Graci

Chief Deputy Attorney General

Appeals & Legal Services Section

Andrea F. McKenna

Deputy Attorney General

Appeals & Legal Services Section

WR ALL W heh

Richard W. Sponseller

Deputy Attorney General RA the

Commonwealth of Pennsylvania

(Counsel of Record)

1600 Strawberry Square

Harrisburg, PA 17120

(717) 787-6348

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