Com. v. Berrios, E.
297 A.3d 798
Pa. Super. Ct.2023Background
- At ~10:10 p.m., Elisabell V. Berrios parked on a street opposite Lancaster County jail, climbed onto her car hood, and took a video/phone call from her incarcerated boyfriend while her two daughters (8 and 12) and a friend were present in the vehicle.
- While on the nearly 15‑minute sexually explicit call, Berrios pulled down her shirt and exposed her entire breasts to inmates visible from cell windows; a jail guard observed and recorded the conduct.
- Police responded; Berrios initially denied exposing her breasts and made sarcastic remarks to officers on the scene.
- She was charged with open lewdness (18 Pa.C.S. § 5901), convicted by a jury of that offense, and sentenced to two to twelve months’ incarceration.
- On appeal Berrios argued (1) insufficiency of the evidence (breasts/nipples not "lewd" or not shown), (2) Section 5901 is unconstitutionally vague (and she invoked Free the Nipple decisions), and (3) the court abused sentencing discretion. The Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument (Berrios) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Sufficiency: Is exposing female breasts a "lewd act" under §5901, and was evidence the nipples were exposed sufficient? | Exposing female breasts is not necessarily "lewd"; no PA appellate precedent so the statute targets genitalia; guard testimony did not prove nipple exposure. | Legislature exempted breastfeeding from §5901, implying exposure of the nipple falls within §5901; sexual phone call and inmates' reactions show purposeful public sexual conduct; guard testified she exposed her "entire breast." | Affirmed. The act was sexual and intended to arouse inmates; jurors reasonably found full breast (including nipples) exposed, satisfying §5901. |
| Vagueness (Due Process) | §5901 is too vague to give fair notice; modern mores narrow the statute; relies on Free the Nipple decisions and Connally vagueness principles. | §5901 codifies common law and supplies an ascertainable standard; Heinbaugh precedent rejects vagueness challenges to §5901 where conduct clearly falls within the proscription; Berrios’ own statements show she understood exposure could be unlawful. | Affirmed. As‑applied vagueness challenge fails: statute gives reasonable notice here and Berrios had consciousness of guilt; Equal Protection free‑nipple argument waived because not raised below. |
| Discretionary sentencing review | Court abused discretion by fixating on offense seriousness; sentence excessive. | Sentence fell within standard guideline range (OGS 1, prior record score 2) and court considered sentencing factors. | No substantial question presented; appellate review declined. Sentence affirmed. |
Key Cases Cited
- Commonwealth v. Heinbaugh, 354 A.2d 244 (Pa. 1976) (§5901 codifies common‑law open lewdness; vagueness challenge rejected where conduct clearly proscribed)
- Commonwealth v. Williams, 574 A.2d 1161 (Pa. Super. 1990) (§5901 covers public nudity/sexuality and gross departures from community standards)
- United States v. Mazurie, 419 U.S. 544 (U.S. 1975) (as‑applied vagueness analysis: statute need only give reasonable notice under the circumstances)
- Free the Nipple‑Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019) (Equal Protection challenge to female‑breast exposure rules discussed)
- Connally v. General Construction Co., 269 U.S. 385 (U.S. 1926) (vagueness/notice principles)
- Bolling v. Sharpe, 347 U.S. 497 (U.S. 1954) (distinction between Due Process and Equal Protection analyses)