Pa. Superior Court overturns 'sex-for-tickets' attempted prostitution conviction

A state appellate court on Tuesday overturned the attempted prostitution conviction of a West Philadelphia woman who made international headlines after her trial in Bucks County, Pa. Common Pleas Court in March 2010 on charges that she offered to sell her body for tickets to a 2009 World Series game between the Philadelphia Phillies and the New York Yankees.

In a memorandum opinion issued by Pennsylvania Superior Court Judge John T. Bender, the appellate panel, in overturning the conviction, ruled that Susan Finkelstein could not be found guilty of attempted prostitution after she was simultaneously acquitted of actual prostitution.

Finkelstein, who was convicted of attempted prostitution following a two-day jury trial at the Bucks County Court of Common Pleas that began on March 23, 2010, had argued in her appeals that a conviction of attempt in the context of prostitution is “legally improper,” and that the commonwealth “failed to demonstrate the necessary substantial step toward commission of the principal offense,” according to the memorandum opinion.

The opinion acknowledged that the case was “unusual” and deviated from a typical prostitution case.

“Finkelstein’s conduct in seeking an exchange of baseball tickets for various forms of intercourse is not commensurate with the unvarnished sale of sex that typically marks prostitution cases, as in most instances, the commercial context of the activity is obvious,” the ruling states.

As for Finkelstein’s claims that she shouldn’t have been found guilty of attempted prostitution if she was acquitted of prostitution, the judges agreed that “the crime of attempt is subsumed in prostitution and that inasmuch as she was acquitted of prostitution, she may not be convicted of attempt,” the ruling states.

“Finkelstein also argues, in the alternative, that even if attempt could be validly charged in this context, the evidence is not sufficient to sustain her conviction,” the ruling states. “We find Finkelstein’s arguments meritorious.”

The case led some to question the use of police resources for an alleged offense that paled in comparison to other crimes affecting city and suburban life.

Finkelstein had been arrested by undercover officers with the Bensalem Township Police Department, who set up a sting operation after they discovered an advertisement Finkelstein placed on the website Craigslist seeking to obtain World Series tickets.

The ad, according to court transcripts, read: “Diehard Phillies fan – gorgeous tall buxom blonde – in desperate need of two World Series tickets. Price negotiable – I’m the creative type! Maybe we can help each other!”

After viewing the add, undercover Bensalem officers contacted Finkelstein and set up a late October 2009 meeting with her at a local mall in Bucks County.

During the meeting, Finkelstein told the undercover officer that she and her husband had an open relationship, and that she was willing to have sex in exchange for the tickets, according to court papers.

Finkelstein was arrested shortly thereafter.

The opinion stated that state courts have ruled that a person “might be said to have attempted prostitution if she took a substantial step toward engaging in sexual activity as a business. In this case, that step consisted of Finkelstein’s offer to engage in sex as a payment for baseball tickets; the record offers no evidence of other conduct.”

The opinion goes on to state that, “because the proof required for attempt was the same as that of the prostitution offense of which she was acquitted, Finkelstein’s conviction of attempt cannot stand.”

Furthermore, the opinion states, “Finkelstein appears as the embodiment of ‘a girl not generally engaged in commercial activity [who] nevertheless consents to have intercourse on a particular occasion in exchange for a promised reward.’ Under these circumstances, we conclude that Susan Finkelstein’s conviction of attempt exceeds the lawful scope of our statutory prohibition of prostitution and cannot be sustained.”

The Bucks County Courier Times newspaper on Tuesday quoted Finkelstein’s attorney, William Brennan, as saying that he was pleased the courts found his client was not engaged in the commercial activity of prostitution.

“I said one time in regards to this case that it’s not illegal to be a slut,” Brennan told the newspaper, reiterating his quote heard around the world when the case first unfolded two years ago. “And that’s kind of what the court is saying.”

The Courier Times also quoted Bucks County Assistant District Attorney Steve Jones, who had been assigned to the case, as saying “this is not the end of the line,” and his office is prepared to appeal the Superior Court decision to the state Supreme Court if necessary.

That statement drew the ire of commenters who posted reactions to the news on the Courier Times website.

One commenter wrote: “It was a waste of taxpayers money and county resources to pursue this case in the first place! A trip down to the station house with a stern warning would of [sic] been sufficient. Let it drop! This woman is not a prostitute!”

Another poster wrote: “I guess Steve Jones, [District Attorney] Dave Heckler and the rest of the fellas at the DA’s office aren’t too busy chasing down all the meth, coke and speed winding up in Bucks, so they got time to hunt this [woman] down. Maybe it’s time to lay off some DAs if this is what they have time to do.”