297 A.3d 798
Pa. Super. Ct.2023Background
- On Sept. 16, 2021, at ~10:10 p.m., Elisabell Berrios parked across from Lancaster County jail with two daughters and a friend; she received a jail tablet call from her incarcerated boyfriend and engaged in a sexually explicit conversation lasting ~14 minutes.
- Berrios climbed onto her car hood, lay against the windshield, pulled down her shirt and exposed “her entire breast(s)” to inmates at the jail side windows while a corrections guard observed and activated body camera footage.
- Guards and police responded; Berrios at first denied exposing her breasts and made equivocal statements to officers on scene; police later charged her with open lewdness (18 Pa.C.S.A. § 5901) and other counts; jury convicted only of open lewdness.
- Trial court sentenced Berrios to 2 to 12 months’ incarceration; post-sentence motions denied; she appealed asserting (1) insufficiency of evidence, (2) § 5901 void for vagueness (and relying on an equal-protection theory), and (3) sentencing abuse of discretion.
- Superior Court affirmed: held exposure of female breasts to arouse inmates fell within § 5901’s “lewd act,” rejected the as-applied vagueness challenge (and deemed the equal-protection theory waived), and declined discretionary-sentencing review because no substantial question was raised.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Berrios) | Held |
|---|---|---|---|
| Sufficiency: whether exposing breasts constitutes a "lewd act" and whether evidence proved nipples exposed | Evidence showed Berrios intentionally exposed entire breasts during a sexually explicit call to an inmate to arouse him and other inmates, satisfying § 5901 | Exposing female breasts is not necessarily "lewd" under § 5901 (statute aimed at genital displays); Commonwealth failed to prove nipples were exposed | Affirmed: the exposure was a public sexual display intended to arouse inmates and the guard’s testimony that she exposed her "entire breast" sufficed to infer nipple exposure; conduct met § 5901 |
| Vagueness / Due Process and Equal Protection | § 5901 codifies common-law open lewdness and gives sufficient notice when applied to the facts; not unconstitutionally vague as-applied | § 5901 is vague as applied to exposing female breasts; also cited Free the Nipple (10th Cir.) and argued an equal-protection problem (sex-based enforcement) | Due-process vagueness claim rejected: statute provided reasonable notice under the circumstances; equal-protection theory was waived because not raised below |
| Discretionary aspects of sentence | Sentence was within the standard guideline range and appropriate given offense gravity and prior record | Trial court abused discretion and fixated on offense seriousness in fashioning sentence | Declined to review discretionary-sentencing claim: appellant did not present a substantial question because sentence fell within the standard guideline range |
Key Cases Cited
- Heinbaugh v. Commonwealth, 354 A.2d 244 (Pa. 1976) (upheld § 5901 as codifying common-law open lewdness and rejected vagueness challenge for a clear violator)
- Commonwealth v. Williams, 574 A.2d 1161 (Pa. Super. 1990) (§ 5901 applies to public nudity or public sexuality and requires gross departure from community standards)
- Rushing v. Commonwealth, 99 A.3d 416 (Pa. 2014) (standard of review for sufficiency challenges)
- Brooker v. Commonwealth, 103 A.3d 325 (Pa. Super. 2014) (statutory constitutionality reviewed de novo)
- United States v. Mazurie, 419 U.S. 544 (U.S. 1975) (as-applied vagueness analysis: whether statute gives fair notice in the circumstances)
- Connally v. General Construction Co., 269 U.S. 385 (U.S. 1926) (vagueness principle on fair notice)
- Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019) (Equal Protection challenge to ordinance prohibiting female toplessness)