COMMONWEALTH оf Pennsylvania, Appellee v. Travis L. KITCHEN, Appellant.
Superior Court of Pennsylvania.
Submitted June 4, 2002. Filed Dec. 18, 2002.
814 A.2d 209
¶ 8 In the instant case, the trial court articulated only one basis for its decision: namely, an apparent belief that telephone calls can never form the basis of a PFA order. We disagree. It is possible for a person to be placed in reasonable fear of imminent bodily injury based on telephone calls, particularly when coupled with the аlleged abuser‘s past history of violence. See, D.H. v. B.O., 734 A.2d 409, 412 (Pa.Super.1999) (assuming that telephone calls may form the basis of a PFA, but reversing the PFA order because the alleged abuser did not make physical threats). Moreover, the court never held the mandatory evidentiary hearing to determine the merits of Appellant‘s petition. Under the circumstances, and in the interest of justice, we remand for the trial court to hold an evidentiary hearing and take evidence frоm Appellant on the allegations set forth in the PFA petition.
¶ 9 Order reversed. Remanded for further proceedings. Jurisdiction relinquished.
Todd K. Hinkley, Asst. Dist. Atty., Towanda, for Com., appellee.
Before: DEL SOLE, P.J., ORIE MELVIN and BROSKY, JJ.
ORIE MELVIN, J.:
¶ 1 Appellant, Travis Kitchen, appeals from the judgment of sentence imposed following his conviction of one count of Sexual Abuse of Children by Photographing Sexual Acts and one count of Possession of Child Pornography.1 On appeal, he argues that the Child Pornography stаtute is unconstitutionally overbroad. He also contends that the two counts for which he was convicted should merge for purposes of sentencing and the trial court abused its discretion in imposing a sentence at the
¶ 2 Appellant was charged with violating one count of
¶ 3 Appellant was tried before a jury on January 25, 1999.2 He was acquitted of the charge involving his sister‘s girlfriend, and he was acquitted of the corruption charge of his former girlfriend. However, he was convicted of
¶ 4 When we first considered this appeal, Appellant was represented by defense counsel Theodore Hinckley, Esquire, who filed a motion for leave to withdraw contemporaneously with the appeal, in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and its progeny. Because the issues raised on appeal were not wholly frivolous, we denied the petition to withdraw and remanded for an advocate‘s brief. Having now received that brief, we turn to the merits of this appeal.
¶ 5 At trial, the victim testified that when she was sixteen years of age she moved into Appellant‘s apartment where the two lived together for about eighteen months. She testified that during those months, Appellant photographed her over sixty times in sexually explicit poses despite the fact she was under the age of eighteen. She admitted that while they were living together she and Appellant had a child, and Appellant continued to take photographs, before, during and after her pregnancy. A number of photographs were introduced into evidence, which the victim retrieved from the WalMart Store where they had been developed. She also testified that she and the Appellant had argued about other sexually explicit photographs which he had taken, kept and refused to return.
¶ 6 Diana Hostettler, a Bradford County Children and Youth Services caseworker, testified that she first became aware of the photographs when she visited the Appellant‘s mobile home regarding placement of the couple‘s child. Ms. Hostettler was there in order to help the victim move out. She suggested that the victim might want to bring photographs from their home with her to preserve them for the future, should the victim‘s son want a picture of his biological parents. In sorting through photo albums and boxes with the victim, Ms. Hostettler came across photographs of the victim in various stages of undress and in sexually explicit poses.
¶ 8 In his advocate‘s brief, counsel has set forth Appellant‘s three issues on appeal:
- Whether the statute criminalizing photographing minors in sexual acts and the possession of child pornography is unconstitutionally overbroad as it relates to the facts of this case, where the defendant and victim reside together and are raising a child?
- Whether the offenses of photographing and possessing child pornography should merge under the circumstances of this case?
- Whether the Court erred in imposing a sentence at the top of the aggravated range of the sentencing guidelines?
Appellant‘s brief at 7.
¶ 9 Appellant first complains that
¶ 10 When reviewing a constitutional challenge of a statute, we bear in mind that the judiciary must accord a strong presumption of constitutionality to the acts of the legislature as a coequal branch of government. Commonwealth v. Balog, 448 Pa.Super. 480, 672 A.2d 319 (1996). To overcome this presumption, the person challenging the constitutionality of a statute shoulders the heavy burden of demonstrating that the statute clearly, palpably and plainly violates the constitution. Id. (citing Commonwealth v. Stock, 346 Pa.Super. 60, 499 A.2d 308, 311–12 (1985)). This is no easy task.
¶ 11 We foсus on Appellant‘s attempts to claim that the statute is overbroad. As we noted in Commonwealth v. Savich, 716 A.2d 1251 (Pa.Super.1998):
The overbreadth doctrine allows a defendant to attack a statute because of its effect on conduct other than the conduct for which defendant is being punished. Mass. v. Oakes, 491 U.S. 576, 586, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) It is the burden of the person whose conduct is legitimately proscribable, and who seeks to invalidate the entire law because of its application to someone else, to ‘demоnstrate from the text of [the law] and from actual fact’ that substantial overbreadth exists. Id. at 590, 109 S.Ct. 2633.
¶ 12 Overbroad statutes authorize the punishment of constitutionally protect-
¶ 13 In the present case, Appellant fails to set forth a constitutionally protected activity, which is being criminalized. He suggests that an adult can take pornographic pictures of a minor, if the minor consents. However, there is no authority to support such a claim. Instead, our legislature recognizes that “the inexperience of youth prevent[s] intelligent judgment in matters of morality.” See Commonwealth v. Collin, 233 Pa.Super. 300, 335 A.2d 383, 386 (1975) (holding that a child‘s consent is “of no moment,” where an adult was charged with corruption of morals of a minor). In fact, our Courts have held that consent is never an issue for proof of a corruption of minors charge, because the statute, protective in purpose, places the guardianship of minors’ morality upon adults. Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807, 809 (1988). Likewise, we find that the child pornography statute is protective in purpоse and the consent of a child victimized by having pornographic pictures taken of him/her is equally “of no moment.” Clearly, no one can legally take pornographic photographs of a child, regardless of whether the child consents.
¶ 14 Appellant also tries to justify taking pornographic pictures of the victim because he had a sexual relationship with her, from which a child was born, suggesting that we should somehow view his conduct as having oсcurred in the privacy of their sexual relationship. However, we reiterate that Appellant failed to present evidence at trial to support a finding that this victim was emancipated by Court Order or was his common law wife. Even if there had been proof that this couple was married, Appellant‘s conduct towards this minor victim would not be excused. Looking again to the corruption of the morals of a minor cases for guidance, we note that a married minor‘s morals can be corrupted by his/her spouse. See Commonwealth v. Stafford, 749 A.2d 489, 499–500 (Pa.Super.2000) (explaining that the legislature had deemed that there are certain activities that a minor may not do, and activities that adults may not participate in with a minor, even if the minor is married to that adult or emancipated.).
¶ 16 Appellant‘s remaining claims concern sentencing errors. Appellant contends the two charges, Photographing Children in violation of
¶ 17 The record reveals that on June 28, 2000, the trial court directed Appellant to file a concise statement of matters complained of on appeal within fourteen days pursuant to
¶ 18 In Commonwealth v. Lord, supra, our Supreme Court found that in order to preserve claims for appellate review, appellants must comply whenever the trial court orders them to file a
¶ 19 Unlike discretionary aspects of sentence, the legality of sentence is never waived and may be the subject of inquiry by an appellate court sua sponte. Commonwealth v. Pastorkovic, 390 Pa.Super. 1, 567 A.2d 1089, 1091 (1989) (citations omitted). See also Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262, 265 (1986) (en banc) (stating, “The question of legality of multiple sentences, based on a claim that the convictions should have merged for sentencing, is not waived by the failure to raise it in the trial court.“).
¶ 20 The Commonwealth argues that even if we declinе to find waiver, the sentences should not merge because there was more than one criminal act to support the convictions in this case. The Commonwealth points out that the evidence at trial demonstrated that there were multiple occasions where he photographed the victim and multiple occasions where he retained other photos. We find this argument persuasive.
The question of when sentences should merge is not аn easy problem.... Analytically, the problem concerns whether a single criminal plan, scheme, transaction or encounter, which may or may not include many criminal acts, may constitute more than one crime, and if it may constitute several crimes, whether each criminal conviction may be punished separately or whether the sentences merge. Commonwealth v. Anderson, 538 Pa. 574, 576-577, 650 A.2d 20, 21 (1994).
¶ 21 Generally, the doctrine of merger is a rule of statutory construction designed to determine whether the legislature intended for the punishment of one offense to encompass that for another offense arising from the same criminal act or transaction. Commonwealth v. Collins, 564 Pa. 144, 147, 764 A.2d 1056, 1057 (2001). Where the legislature has not provided guidance, the courts are left with the determination. Anderson, supra at 577, 650 A.2d at 21. However, where the same facts are not the basis to support the convictions, the merger question is inapplicable. Commonwealth v. Gatling, — Pa. —, 807 A.2d 890 (2002). In the present case, Appellant took a seriеs of pictures of the victim, before, during and after her pregnancy. She testified that Appellant photographed her over sixty times in sexually explicit poses despite the fact she was under the age of eighteen. A number of photographs were admitted into evidence, which the victim retrieved from the WalMart Store where they had been developed before Appellant could possess them. She also testified that she and the Apрellant had argued about other sexually explicit photographs which he had taken, kept and refused to return. He also retained pornographic photographs of her in numerous albums and boxes around their home. This is not a case where only one photograph was taken and retained. The minor was victimized by the taking of the photographs and then victimized again by the fact that Appellant retained them so as to be availablе for viewing for himself and others at a later time. Just as our courts have consistently rejected “wholesale discounts” for multiple offenses, we likewise will not afford Appellant the benefit of viewing his crimes as one continual event, nor will we accept Appellant‘s argument that under the facts of this case, photographing children, in violation
¶ 22 Judgment of sentence affirmed.
¶ 23 DEL SOLE, P.J. joins.
¶ 24 BROSKY, J. files a concurring opinion.
BROSKY, J., concurring.
¶ 1 As I understand it, the 16-year-old female in this case and Appellant were “lovers,” and all the sexual relatiоns that took place between them were consensual. Indeed, the young woman lived with Appellant for 18 months and had a child with him. Casting aside the fact that many in our society would frown upon, if not condemn, a relationship between an adult male and a sixteen-year-old female, the
¶ 2 However, as the majority recognizes, consent has no bearing on the crime in question here, which has a steadfast application to any minor. This fact leads to the seemingly inconsistent reality that Appellant could “legally” engage in consensual sexual intercourse with the mother of his child, but photographing or videotaping the same activity, or the seemingly less offensive act of photographing her in the nude,4 would be illegal.
¶ 3 While undoubtedly the statute relevant to the present case was founded upon the best of intentions and, we trust, promotes those interests in most cases, the facts of the present case surely are not what was at the heart of the statute in question. It appears to me that there are some rather inconsistent and illogical applications of the above laws as written and that the present case highlights them rather dramatically. I thereforе suggest that the time has come for considered review of this particular statute by the legislature so that situations such as this do not obtain the same incongruous result.
¶ 4 Additionally, had the issue been properly preserved, I would find that a substantial question has been presented that the sentence imposed is not appropriate under the sentencing guidelines.6 Indeed, I believe that a strong case has been made for a downward deviation from the standard range of the sentencing guidelines. As pointed out in Commonwealth v. Gause, 442 Pa.Super. 329, 659 A.2d 1014 (1995), the guidelines were passed to create more uniform sentences in Pennsylvania and are based upon the premise that a generic or typical occurrence of any crime is designed to receive a sentence in the standard range. That is, the Sentencing Commission was aware of the inherent egregiousness of each statutory offense and incorporated the apprоpriate level of punishment in the “standard range” of the Sentencing Guidelines for what might be deemed a “standard,” or “typical” version of events that constitute the crime in question. If the facts of particular occurrence of the crime are somehow more, or less, “offensive” or egregious than those contemplated by the Guidelines, that is, a typical occurrence or version of the offense, deviation should occur to make thе “punishment fit the crime.” While the
¶ 5 While the circumstances that might represent a typical or generic violation of the statute in question might be open to some debate, it must be admitted that the facts of the present case fall оn the less egregious end of the conduct spectrum that is encompassed within its definitions. As such, I would permit review of the discretionary aspects of the sentence imposed had this issue been properly preserved on appeal.
¶ 6 For all of these reasons, I am constrained to concur with the result reached by the majority in this unfortunate case.