*1 hоwever, conclusion only proper is that compliance with the order the father would undue constitute hardship. the order of
Accordingly, the court below requiring to make weekly payments of toward $27.50 of his 18 support year old daughter her during col- career is vacated. lege Piper, Appellant.
Commonwealth December Argued J., Before 1971. Wright, P. Spaulding Watkins, Montgomery, Jacobs, Hoffman, JJ. Cercone,
Before Potter, M. James appellant. Attorney, District Wesner, E. Deputy
Grant for Com- Attorney, Van District Hoove, Robert L. him monwealth, appellee.
Opinion 1972: Curiam, 24, Per March the defendant affirmed, of sentence Judgment as at time below such to the court directed appear court she and that called, there may she or the sentence, until she has complied committed at the bеen performed which has not thereof any part made was a appeal supersedeas. time Dissenting Opinion by Hoffman, J.: her convic- attacks this direct appeal, appellant for sodomy, prostitution tions to commit solicitation and assignation. аt case, appellant’s facts in this as established undercover are an trial,
jury appellant approached sodomy him to commit and solicited police state trooper on a warrant conversation, Based this prostitution. for arrest of charg- issued and served appellant was for she was found guilty. her with the crime which ing her to 15 months imprison- The lower court sentenced as to the at the charges, undifferentiated State ment, Home for Women to the (Muncy) pursuant Industrial P. of L. No. 61 P.S. July 1968, , 171, §1, Act 16, Muncy Act). New (The §566
I prosecutiоn solicitation to com- sodomy brought purportedly mit under the Act of 872, P. L. 18 P.S. §502, June This act §4502. that “[wjhoever, unlawfully and maliciously, provides to another with intent commit or sodomy, assaults another to permit and incites and suffer such solicits, to commit with him or sodomy her, guilty . . .” felony. The lower mean court this interpreted language that mere solicitation to commit more, without sodomy, is sufficient to constitute a violation of the Ac- act. the court that “if find cordingly, charged jury you from the evidence that defendant words spoke suggestion proposition urging, Trоoper Goldern, to commit with the her, intention on the part the defendant pursue matter further, by the unlawful act of committing sodomy, Trooper Golden was willing to then participate, should find you defendant count guilty 1, solicitation to commit sodomy.”
This is based charge, my view, uрon misreading of 18 P.S. That statute face its only §4502. punishes assaults with intent to commit sodomy and actual con *3 sensual On at least two other sodomy. how occasions, held ever, lower courts have that 18 P.S. punishes §4502 the mere solicitation to commit sodomy. Commonwealth v. 17 Pa. D. C. 2d 795 Krout, & (1958) ; Common and wealth 72 Pa. D. & C. 459 Schaller, In Schaller relies (Kront on exclusively Schaller), the Court held that 18 P.S. predicated §4502 ofAct P. L. prior July 16, 1917, (formerly 18 §3 P.S. and that both the §833), present and act the Act of 1917 mere solicitations to punished commit sodomy. There are no relevant appellatе court cases with respect to or the Act 1917. §4502 The Act 1917 provides Section 3 thereof that shall and any person unlawfully maliciously as- “[i]f intent to with commit another, sault sodomy as this or if shall any person defined, act wickedly and unlaw- and incite and endeavor solicit tо fully persuade an- and suffer such person to to permit other commit sodo- defined with him or act in this as her, such my, person add- .” (Emphasis of a . . shall be misdemeanor. guilty ed.) and the present the Act of 1917
Distinctions between act are apparent. disjunctive the Act of 1917
First,
provides
if any
“or
sodomy
that
intent
to commit
assaults with
to
.
.
and incite and endeavor
per-
shall
.
solicit
person
to com-
another
and suffer such
permit
suade
to
person
re-
mit
are both
offenses. With
sodomy”
punishable
committed
crime is
spect
present aсt, however,
to
to
and suffer
if
and incites another
permit
one solicits,
or her.
commit
with him
sodomy
such
to
person
ait
Act of 1917 makes
distinction is that the
operative
“endeavor to
to
persuade
permit
to
another
simply
crime
him
. . .
such
to commit
with
sodomy
suffer
act does not
who
punish persons
her.”
present
with
sodomy
others
commit
endeavor
persuade
“incite another
them,
permit
but
who
only persons
him
to commit
and suffer such person
act
Thus,
present
comports
philoso-
her.”
Commonwealth,
191 solicited, by whose ivas to be specific assignment prosti- Thеre no that he was tutes. ivas evidence absolutely in the and fact incited the solicitation by appellant, be as he was respon- would seem to true insofar opposite sible for her arrest. ad
The act’s that the requirement person present the soliсita dressed must “suffer person making [the commit him or her” has sodomy to likewise tion] from the conjunctive distinct meaning requirement the also it. who suffers must person permit means to merely word allow. word “permit” require indicates that there is some “suffer”, however, addressed ment that the must also some undergo in contact with without physical permission. Thus, 124, v. Traction 161 Pa. Co., Dunseath 130 and (1894), Railroad v. Philadelphia Reading Company Pa. the word “suffer” was Long, 257, (1874), understood as that an actual act implying done, albeit permission. Pa. Greer, Shaffer it was held that the “word ‘suffered’ neces it is not sarily implies voluntary confined to the acts of the . . .” grantor.
Accordingly, words “incite” and “suffer” have accepted jurisprudential which militate meaning against act as read present being mere punish solicita- tions.
Of of “incite” course, рresence and “suffer” in act can be ignored present rationalized as was the lower court’s opinion case Schaller, but to do so violates fundamental principles set forth in Construction Statutory Act,1 that “[w]ords shall construed phrases [in according statutеs] and approved common usage. their ...” and that law shall “[e]very construed, possible, to give all its When the provisions. effect words of a law May 28, 1937, III, §33, P. L. Art. The Act 46 P.S. 533. *5 192 is of it the letter ambiguity, free from all
are clear and its of pursing the pretext under not to be disregarded 46 P.S. spirit.” §551. statute here dealing penal аrewe
Further, Doubts concerning construe. strictly we must which be resolved favor statute should scope in Common- As was stated 46 P.S. defendant. §558. Pa. 263 A. 2d (1970), Hosendorf, 219, v. wealth from state- Justice in turn quoted which Frankfurter's States, in Bell Court for the United Supreme ment of our “it is ‘a presupposition 81, 349 U.S. of a doubts the enforcement code penal law to resolve of a This harsher punishment’.” the imposition against “ ‘the instinctive against distaste upon rests principle unless the law maker has prison men languishing 2d should’.” Pa. at 263 A. they 223, said clearly at 441. I hold that the solicitation in
Therefore, would to 18 not P.S. punishable pursuant 4502, case is instant should have been appellant discharged and that to commit sodomy. the count solicitation
II is to commit conviction If the appellant’s The crimes cannot stand. imposed the sentence vaсated, herein assignation merge, of prostitution for sentenced their commission may only appellant Act of one year imprisonment. a maximum L. 18 P.S. 4512. Since the 872, §512, P. June therefore not more than one is year, sentence ma.Yimnm committed Muncy pursuant cannot aрpellant of the New Muncy Act, supra. provisions the express
III to commit sodomy solicitation conviction Even imposed upon sentence valid, were a fifteen-month term of no mini- imprisonment, mum sentence in the imposed, illegal. provision New Act Muncy of a only providing setting maximum sentence but no minimum sentence uncon- stitutional as it a denial of equal constitutes protection *6 to women so sentenced. of
Specifically,
the Act
June
1911, P. L.
§6, as amended, 19 P.S. 1057,
provides
any person
convicted of a crime
in a
punishable by imprisonment
State penitentiary shall be
sentenced
both a maxi
mum
a
and minimum
the minimum
term,
never to ex
ceed one-half of the maximum sentence.
mini
While the
mum sentence
no
imposed has
compelling significance,
it has been construed to be an administrative notice by
the court
to the Parole Department
calling attention
to the legislative
a
policy
when
mini
prisoner’s
mum sentence is about
expire,
Parole Depart
ment should consider the
of
question
whether the pris
oner
to be
ought
paroled. Commonwealth ex rel. Atkins
(63
Board
Pennsylvania
Parоle,
Dauph.
(1952);
of
Commonwealth ex rel. Gray v. Pennsylvania Board of
Parole,
Dauph.
Commonwealth v.
(1952):
Kalck,
Pa.
Although Board Parole may refuse to grant a a parole at the end of prisoner his minimum sentence, the minimum sentence has tremendous practical signifi- сance as it is to an equivalent order to the Board of Parole that review of a prisoner’s status should be of a started as certain time. of
In the absence a stated minimum sentence, how- consideration whether a ever, prisoner should be he may begin dаy paroled incarcerated. On review his hand, parole other status may not begin time a period until substantial has elapsed after would prisoner when have time finished serving his a such sen- minimum sentence, imposed had the Court tence.2 Parole unfettered the Board of is given
Accordingly, to consider and when discretion whether determining fixed maximum to either a whether sentenced sentence or an term indeterminate imprisonment to be paroled. it is whether then is before this Court question to pro- legislature
constitutionally permissiblе not have should Muncy vide that women sentenced men on same minimum sentence, but that sentenced a minimum sentence imposed, crimes shall have types signi- the minimum sentence has tremendous insofar as ficance to the the convicted respect placing per- son parole. men it should be noted that both the instant case can be convicted under the
and women and sentenced statutes which the lower upon prostitution *7 court relied. basis for
No rational between the distinguishing men accorded is treatment women apparent. parole in as stated Commonwealth Daniel, it is true While Such, 2 passage Muncy case after the of the New Act. was the Muncy devised authorities a mechanical formulation At that time serving two-year Muncy a maximum a woman sentence at being parole eight by months befоre considered for must wait year’s waiting period required A was Board of Parole. for State longer a maximum term. A man sen women sentenced those years with a maximum of two minimum term of to a four tenced parole expiration eligible as for at the of four is considered months months, of the same crime a woman convicted and sentenced while Muncy years maximum of Act to the same the New two under eight parole until months from the date of her not considered longer counterpart. sentence, than her months male full four Sеe a Constitutionality study procedures parole contained in of of paper by Act, Stotland, unpublished Esq., Muncy Maxine an 1968 paper Prothonotary copy filed I have of the of which a Superior Court. 430 Pa. “a 243 A. 2d 649-650, per classification sex alone offend the se, would not, Equal Protection of Clause States Constitu- United it is also true and factors tion”, that “considerations justify which would a difference men between and wom- employment, en in matters well as in a number as govern justify imposition other do not matters, or longer greater imрosed sentence of than women is upon men for the commission of crime. the same particular, justifi- any fail to we discern reasonable able difference men deterrents between and women justify being eligible which would a man for a shorter prison maximum sentence than a woman for the com- especially of the mission same crime, there no ma- terial in difference their records and the cir- relevant cumstances.” sentencing only
Since the net effect of
women
to a
stated maximum and men
ato
stated maximum аnd
minimum is to discriminate as
in
between them terms
parole,
language
consideration of their
Daniel
directly applicable
Muncy
to the New
Act. See also
Reed v.
Reed,
U.S.
92 S. Ct.
In-
recognized
the Court in
deed,
Daniel
much
as
when in
commenting
predecessor Muncy
on the
therein de-
Act,
clared
privi-
unconstitutional, it was noted that “[t]he
lege
given
of minimum
sentence
to men under the
may ultimately govern
Act
their release under
parole.”
I conclude, therefore, that act on its face is un- constitutional and should not have been sen- tenced accordance therewith. joins part *8 J., dissenting three of this
Spaulding, opinion affirm respects. and would in all other