*1 able order and the “decision Pennsylvania, COMMONWEALTH summary to be taken” was appeal is Appellee granted
judgment order which Block victory. simply Block was not complete by this order. aggrieved TIFFANY, Appellant. Keith ¶ appealable I order recognize any prior interlocutory generally subsumes Pennsylvania, However, case. this orders the same Appellee party may losing that the simply means order, as -well challenge the final adverse Tiffany, Appellant. that were any prior non-final orders Keith It losing party. also adverse to the does Pennsylvania. Superior Court of party winning mean that even cross-appeal, under protective
must file a Sept. Submitted waiver, penalty simply because the trial Filed June may point against court have at one ruled granting a party before later winning victory. To hold otherwise complete needlessly already- complicate
would practice.
complex appellate realm
¶ respectfully disagree 4 I also with the
Majority's that a on the position “decision already place before
merits” had taken class, decertify thus
Block moved untimely
making the motion under Pa. 1710(d). pre- court was
R.C.P. The trial
pared to hold a class-action trial on the
question of whether a confidential relation- parties. The
ship existed between the therefore, question, had not
merits Thus, view,
yet my been decided. untimely was not under Pa.R.C.P.
motion
1710(d). reasons, respectfully 5 For these I dis-
sent. *2 prob- Hone, alleging lack ap- suppress, a motion to Doylestown, B.
Kenneth the search warrants. pellant. support cause to able mo- hearing, the Following suppression Diaz, Atty., Doyles- Asst. Karen A. Dist. *3 denied, two-day bench trial and a tion was Com., town, appellee. followed. JOYCE, STEVENS, and BEFORE: ¶ con Appellant was 4 On June POPOVICH, JJ. abuse of 228 of sexual of counts victed STEVENS, BY J.: OPINION instru children, possessing one count of ¶ appeals a Tiffany, Keith 1 Appellant, open lewd one count of ments. of entered in the Court of sentence judgment minors, ness, corruption of counts of two County. of Bucks We of Pleas Common trespass, two of and one count defiant affirm. minors. contact with of unlawful counts ¶ 2004, May police Appel- found 2 On on Octo subsequently He sentenced was time, lant, years was 44 old at who on timely appeal filed and ber in a with three swimming quarry naked com Appellant 2005.9 has November males, Appellant 15 13. ad- ages to file a Pa.R.A.P. a court order plied with nude taking pho- he had been mitted that 1925(b) complained of matters statement group, of seized tographs police on appeal. of arrest, Appellant’s Following the camera. to per- warrants were issued three search ¶ allega five Appellant 5 raises analysis and forensic of a mit the seizure first asserts appeal. He tions of error computer and laptop Appel- disks granted have trial court should that the truck, analysis of the lant’s the forensic grounds motion on suppression scene, the search camera seized at probable supporting cause the affidavit house.1 lacked suf warrants in the search subsequently charged within ficient facts and circumstances children,2 possession with sexual abuse of application. Appel four corners of crime,3 expo- оf instruments of claim 11. review this lant’s brief at We sure,4 minors,5 corruption of defiant tres- principles. following under the minors,7 pass,6 unlawful contact with admissibility It is well settled that trial, Appellant Prior to open lewdness8. motion, solely discretion including an within the pre-trial filed omnibus evidence 6318(a)(2). description leading § of the events 7. 18 Pa.C.S. 1. detailed Appellant’s arrest and the results of the investigation ensuing is contained the trial § 8. 18Pa.C.S. thorough page court’s Pa.R.A.P. Opinion, and need not be restated here. years’ sentenced Opinion 3-9. filed at 12/21/05 imprisonment conviction for sexual for his at Opinion filed abuse of children. 12/21/05 6312(b), (c), (d). § 2. 18 Pa.C.S. 3 to 1. He was sentenced to concurrent 907(a). imprisonment possession on the § months’ 3. conviction, a concur- of crime instrument 4. 18Pa.C.S. imprisonment on the rent 3 to months’ conviction, to 12 and concurrent 3 lewdness 18 Pa.C.S. 6301. imprisonment corruption of on the months’ 3503(b)(1)(H). conviction. Id. 6. 18 Pa.C.S. minors the trial will only information, court and be reversed supplying hearsay if the trial court has abused its discre- probability there is fair that contra- tion. explained: This Court has band or evidence of a crime will be
Our standard
particular
of rеview when
in a
place.
address-
found
ing challenge
ato trial court’s denial
Gray,
Gates,
at
quoting
503 A.2d
of suppression is whether the factual
238-239,
U.S.
S.Ct.
findings
are supported
the record
Ceriani,
411 Pa.Super.
legal
and whether
conclusions
(1991).
1283-1284
See
drawn from these facts are correct.
203(B).10
also Pa.R.Crim.P.
*4
rulings
When
the
a
reviewing
sup-
of
¶ 6 At the time the “Applications for
court,
pression
only
we must consider
Search Warrant and Authorization” in
prosecution
the evidence of the
and so
completed,
here were
Pennsylva-
much of the evidence for the defense
nia Rule of Criminal Procedure 206 re-
as remains uncontradicted when read
quired that:
in
of
the context
the record as a
whole.
supports
Where the record
Each application for a search warrant
findings
the
court,
of the suppression
affidavit(s)
supported by
shall be
written
we are bound
may-
those facts and
signed and sworn to or
before
affirmed
only
reverse
if the legal conclusions
affidavit(s)
issuing authority,
which
drawn
are in
therefrom
error.
shall:
Messersmith,
(1)
department,
state the name and
1078,
(citations
1094 (Pa.Super.2004)
omit-
affiant;
agency, or
оf
address
the
ted).
(2) identify specifically the items or
reviewing
When
a
whether
search war-
seized;
property
be
searched for and
sufficiently
rant was
supported by prob-
(3) name or
particularity
describe with
cause,
employ
“totality
able
we
the
person
searched;
place
or
to be
analysis
circumstances”
Illinois v.
(4)
owner,
identify the
or
occupant,
pos-
Gates,
462 U.S.
103 S.Ct.
76
searched;
place
sessor of the
to be
(1983);
L.Ed.2d 527
(5)
the crime
specify or describe
(1985)
Gray, 509 Pa.
The task of cause to believe issuing magistrate simply practical, property or are evidence or to make identified common contraband, whether, given sense decision the fruit of or are all the unlawfully possessed circumstances set forth in the or are or otherwise affidavit seizure, him, subject including “veracity” before аnd that these and “basis of located knowledge” property items or are Pennsylvania person thority using Rule of com- Criminal Procedure in advanced 203, pertaining requirements to the for the technology. issuing The au- munication warrant, provides per- issuance of a search thority, determining probable whether part tinent as follows: established, may cause has been not consid- (B) upon No search warrant shall issue but er outside the affidavits. evidence probable supported by cause one or more 203(B). Pa.R.Crim.P. issuing affidavits sworn to before the au- the name and and vehicle stated home particular particular affiant; specifically identi- agency of the place described. searched, places fied 1, 2000, Pa.R.Crim.P. amended March areas; al- and the crimes of those owner April effective 2001.11 (18 leged regard § 631212 with Pa.C.S. Here, home, Applications Pa.C.S. Appellant’s 3127,136318,14 6301,15 §§ pertaining Search Warrants (d)POSSESSION OF CHILD PORNOGRA- Rule has amended to rec- since been ognize anticipatory PHY.— search warrants. Pa. knowingly possesses Any person who R.Crim.P. amended October book, magazine, pamphlet, February effective or controls film, slide, videotape, comput- photograph, depiction depicting material er pertaining to sexual abuse of children, age years engaging child under the pertinent part follows: states prohibited act or the simulation sexual section, (a) DEFINITION.—As used commits an offense. of such act "prohibited sexual act” means inter- sexual *5 18 Pa.C.S 6312. (relating in course as defined section 3101 definitions), masturbation, sadism, maso- person "A Pursuant to Section 13. chism, fellatio, bestiality, cunnilingus, lewd person exposure ex- if that cоmmits indecent genitals nudity of the or if such exhibition public poses any place his or her in nudity depicted purpose is for of sexual the any place present where there are or gratification any person stimulation or of in which he or under circumstances might depiction. who view such this knows should know that conduct is she or VIDEOTAPING, (b) PHOTOGRAPHING, offend, or 18 Pa. affront alarm.” DEPICTING ON COMPUTER OR FILM- C.S.A. person Any ING SEXUAL who ACTS.— knowingly permits causes or a under child 6318, pertaining con- to unlawful Section years age engage prohibit- the of 18 minors, perti- with defines the offense in tact the ed sexual act оr in simulation of such part nent as follows: felony degree guilty act is of a the of second person an offense if is inten- commits knows, person if such has reason know tionally with in contact a minor the may photo- or intends that such act be activity prohibit- purpose engaging in of computer graphed, videotaped, depicted on any following, of the and either ed under Any knowingly pho- person who filmed. per- person initiating the or the the contact tographs, videotapes, depicts computer is this being son contacted within Common- age years or films a child under the of 18 wealth: engaging prohibited in a sexual act or in (1) Any the enumerated in of offenses guilty the simulation of such an act of offenses). Chapter (relating to sexual felony degree. of the second (2) Open as in section lewdness defined (c) DISSEMINATION OF PHOTO- lewdness). (relating GRAPHS, VIDEOTAPES, DE- COMPUTER PICTIONS AND FILMS.— (5) abuse of children defined Sexual sells, Any knowingly who dis- (relating of to sexual abuse section 6312 tributes, delivers, disseminates, transfers, children). others, pos- displays or exhibits to or who sale, distribution, purpose sesses for of 6318(a)(l)-(6). dissemination, transfer, display delivery, others, book, any magazinе, exhibition to 6301(a), corrup- pertaining to the film, slide, pamphlet, photograph, video- minors, of states that: tion tape, computer depiction material or other Whoever, years years being age depicting age of of under the of 18 child upwards, by any corrupts act or tends to engaging prohibited or in sexual act corrupt than morals of minor less such an of- the simulation of act commits aids, abets, years age, who entices of fense. com- encourages any such minor in the vehicle). regard with The 1. There was no definition of con- what accompanying probable affidavits of cause stitutes child pornography, specified the items to be searched for and 2. Detective mistakenly believed that seized,18and specifically set forth facts the mere existence aof nude picture and circumstances which formed the constituted child basis pornography under the Code, of the Criminal probable affiant’s conclusion that cause existed to seize the items. Similar- 3. There was no description of of ly, Application the photographs for Search Warrant aside from saying that they pertaining to were nude or Appellant’ naked pictures camera stated the people could affiant; who name and under agency specified age of the (in the items to be searched for and There is no seized reference in the affidavit case, data); probable specifically cause to identified that photographs containing minors camera and compact engaging discs would be sexual acts, acts or simulated sexual searched; the locations identified Appel- lаnt as the disks; owner of 5. At the time camera and war- search specified (18 rants been prepared, had alleged crimes Pa.C.S.A. no one had any alleged §§ viewed photographs. 3503); 5901 and specifically set forth the facts and The interviews affi- circum- contained davit, affidavit, stances or admitted formed the basis the affi- that there revealed was no ant’s sexual activi- conclusion that probable cause exist- occurred, ty that had ed to seize the items.19 *6 Tiffany, 7. a Appellant, Keith is ¶ 8 Appellant does not specifically assert . missionary. how the above requirements have not been then Appellant brief at 14. Instead, met. he claims that: foregoing “the establishes asserts that The deficiencies the four corners of in the search presented facts the limited each search warrant affidavit is [sic] the omissions warrant, well as as highlighted by testimony a lack warrant, clearly affiant show search Martin may McDonough,[20] crime any specific who testified as probable cause Appellant provides follows: Id.21 have occurred.” tp Ap- pertaining page mission of affidavit knowingly оr who 18. The nine accompanied by two assists or encouragés was such pellant’s minor violat- home attachment, ing parole court, eight page his affida- or her as was the page order commits a to his vehicle. degree. misdemeanor of pertaining the first vit that some of the permissible It is 5901, lewdness, 16. Section pertaining AppHca^ons contained was information Authorizations, person directs that “[a] commits a misde- Warrants for Search proba meanor of the degree third if he does to the affidavits in the attachments Pa. 586 Ruey, lewd aсt which he knows is to be ob- ble cause. Commonwealth served others who would be affronted or 802, 230, 244, A.2d alarmed.” 18 Pa.C.S. 5901. associ- affiant McDonough was the 20. Martin 3503, War- Search pertinent part states in For Applications ated with the s if, Appellant knowing regarding commits an offense rant and Authorization so, ishe not licensed privileged to do vehicle and camera. enters or any place remains in as to which allegation against trespass notice contains given. Pa.C.S brief also 3503(b). raised staleness, claim but this record, of the Following our review legal principles for various case citation process, but underlying the search warrant thorough explanation provided supporting his specifically cites to no cases 1925(a) Opinion, Rule we the trial court’s not followed process claim that has failed meet his find that Indeed, argument seems chal- here. mo suppression that his proving burden of sufficiency of evidence to lenge the denied. See erroneously Pa. tion was convictions, not the existence support his 10- Opinion filed R.A.P. 12/21/05 issuing required probable of the cause for 12,22 in question. the warrants NAKED, A original BEING PERSON part suppression and is DEFENDANT of his motion Parker, AND therefore waived. Commonwealth THE AGE OF ACCORD- OVER AFFIDAVIT, (Pa.Super.2004) (citing 847 A.2d 748 n. OF 44 YEARS ING TO THE Ellis, AGE, 293 n. Commonwealth v. 541 Pa. THE OF ANOTHER IN COMPANY (1995) (failure AGE, MALE, n. 2 662 A.2d ALSO AN AGE 19 YEARS OF suppression raise issues motion consti- ADULT, DE- AND TWO CHILDREN appeal); tutes waiver Smith, AFFIDAVIT AS AGE 13 SCRIBED IN THE Pa. AGE 15 YEARS. YEARS AND (1990)). EXIS- NOTED THE THE OFFICER A DIGITAL CAMERA AND TENCE OF Therein, the court indicated as follows: CAM- WITH REGARD TO THE TRIPOD. DETECTIVE MARTIN MCDONOUGH ERA, TODAY DEFENDANT HERE THE AT- OF THE BUCKS COUNTY DISTRICT WAS VOLUNTEERED THAT HE TAKING OFFICE, TORNEY’S DETECTIVE DIVI- NAKED PICTURES OF MI- NUDE OR SION, HAD EXTENSIVE PROFESSIONAL TO AS A NORS RELATED HIS VOCATION EXPERIENCE IN INVESTIGATING ... BRAZIL WHERE HE MISSIONARY IN INCIDENTS OF CHILD PORNOGRAPHY CHIL- OF NAKED UTILIZED PHOTOS AND SEXUAL ABUSE OF CHILDREN. DREN. IN OR ABOUT MAY DETEC- THAT HE ALSO VOLUNTEERED ... REQUESTED TIVE MCDONOUGH WAS COMPUTER OTHER HE POSSESSED TO ASSIST THE PENNRIDGE REGIONAL INCLUDED, AMONG OTH- DISKS THAT POLICE DEPARTMENT IN AN INVESTI- THINGS, PHOTOGRAPHS OR DE- ER GATION REGARDING ONE OR MORE OF *7 OF PICTIONS NAKED CHILDREN. THOSE OFFENSES ... WORKING, WAS A VISIBLE THERE ASSISTANCE, AS A RESULT OF THIS AT LOCATION TOGETHER CAMERA THE THREE SEARCH WARRANTS WERE OB- ALSO WITH A TRIPOD. THE OFFICER WARRANT, CS-1, TAINED: SEARCH MAY FROM THE RECEIVED INFORMATION 20, 2004, FOR THE DEFENDANT'S VEHI- TO THAT HE INTENDED DEFENDANT CLE, SUBURBAN; CS-2, A 1992 GMC OF HIMSELF AS TAKE PHOTOGRAPHS SEARCH WARRANT AND AFFIDAVIT OF WELL, UNCLOTHED. CAMERA, MAY FOR A DIGITAL WERE REASONABLE THERE AND BELONG- ALLEGEDLY POSSESSED GROUNDS, THEREFORE PROBA- AND ING AND BY DEFEN- TO OWNED THE CAUSE, AND FOR THE OFFICER BLE CS-3, DATE, DANT; AND OF THE SAME BELIEVE, TO DETECTIVE MCDONOUGH AND AFFIDAVIT SEARCH WARRANT THE ALL OF SURROUNDING GIVEN FOR THE DEFENDANT’S RESIDENCE. CIRCUMSTANCES, AND THE DEFEN- TO PRIOR OBTAINING THE SEARCH STATEMENTS, THAT THE DE- DANT’S WARRANT, WAS OB- INFORMATION HAD MAY HAVE SIMILAR FENDANT BY TAINED THE AFFIANT THAT PO- A DISK OR A COM- ITEMS STORED ON LICE OFFICER INVESTIGATING AN PUTER. JURISDICTION AREA WITHIN HIS WITHIN IS ALSO A NOTE THERE QUARRY BEEN CAME TO A WHICH HAD THEY OB- WARRANT THAT THE AS WHILE MARKED 'NO TRESPASS’. CAR, THERE, THE DEFENDANT’S SERVED HE A PERSON HE OBSERVED SUPPORTING, UPON BASED AGAIN AS DEFENDANT DESCRIBES THIS SURROUNDING CIRCUM- ALL THE WITH CHILDREN WHO SWIMMING STANCES, BE- CAUSE TO PROBABLE AS NUDE OR WERE DESCRIBED ¶ 10 light, next asserts that when in the -viewed correct facts man, to year order for there be sufficient to Appellant, reveal that a 44 old evidence old, support year year- expo encouraged convictions a 19 a 15 old lewdness, open sure the Common and a with year old swim naked him wealth was that in an public, establish area accessible to the . actually naked, someone was affronted then photographed them with the Ap alarmed. photo- brief at 16-17. admitted of showing intention pellant testimony asserts that graphs intro to others. duced at trial failed to the “neces ¶ 12 findWe that evidence of such alarm,” sary element causing affront support behavior is Appel sufficient to best, argues that the evidence previously, lant’s convictions. As we noted showed a “consensual encounter.” Id. at if person exposurе commits indecent that no provides case statuto “exposes person his or her ry support citation to In allegation. this public place or in place where there addition, he recounts events which led present are circum under light
to his arrest clearly more favor stances in which he or she knows or able to his claim of innocence than to the likely should know conduct is showing Commonwealth’s successful offend, affront or alarm.” 18 Pa.C.S.A. guilt. added).23 Similarly, (emphasis ¶ 11 We do not view the facts such lewdness, pertaining light. It is without when directs “[a] commits a misde addressing a sufficiency the evidence degree meanor of the third if he does claim, we must view the facts in a light lewd act which he knows Commonwealth, favorable as verdict observed others who would be af Andrulewicz, winner. alarmed.” fronted or added).24 Here, (Pa.Super.2006). (emphasis “Lewd” acts involve IN Although Appel- LIEVE THAT ADDITION TO THE DE- lant and the victims arrived. lant did HAVING THESE asserts his victims FENDANT ITEMS IN HOME, they take off their clothes until believed that HIS AT CAMERA HIS AND/OR left, people frequent pres- the other had THAT ONE OF OR MORE ITEMS CON- trespassers quarry certainly ence of at the TRABAND MAY HAVE BEEN STORED remained, may meant that someone have un- OR SECURED IN VEHICLE. HIS by Appellant, seen or that others could arrive See, 31,May NT such, moment. As the location here *8 certainly parameters falls within the of Sec- Court, reviewing This in in a common Thiry, v. tion See Commonwealth (3) all sense manner three Affidavits for the ¶44, 11, Super 2007 PA A.2d 919 Warrants, Search there that was concluded *3, 512362, Pa.Super. 2007 WL 2007 LEXIS supportive probable sufficient facts and 215, 20, 2007) (The (February *8 drive cause within the four corners of the war- through privately lane of owned Mc- thus, issuance, support to and rants their "public Donald's restaurant considered the, application suрpress to evidence was 3127(a)). place” purposes for of Section We 2005, See, 31, May page denied. NT 50. Appellant dispute note that does con- 1925(a) Opinion Pa.R.A.P. filed at 12/21/05 clusion. (capitalization original). 10-12 in 313, Allsup, In 24. Commonwealth v. 481 Pa. recognize quarry 23. While we that in (1978), Pennsylvania A.2d 1309 392 Su- question private property, here was the evi- phrase "likely preme interpreted, Court to presented clearly dence that it was by indicated be observed others who be affronted would frequently by public, that visited and there to indicate or alarmed” thаt lewd conduct people quarry Appel- likely were other at the when must occur where and when "it is to be
511
to
Common
accessible
nudity
public.”
or
nude with minors
an area
“sexuality
Fenton,
863,
wealth v.
photographic
866
evi-
public,
securing
750 A.2d
and
(Pa.Super.2000).
pertains
5901
to
“likely
Section
be
dence of such actions was
to
“1)
nudity or
public
conduct that:
involves
by others who would be affronted
observed
2)
sexuality,
represents
such a
public
and
by
contemplated
alarmed”
is
Section
or
community
accepted
gross departure
such,
no
provides
As
this claim
5901.27
to
to
standards as
rise
the level of criminal
appeal.28
relief
Williams,
liability.” next contends that
Appellant
13
(1990).25
Pa.Super.
574 A.2d
394
to present
failed
suffi
the Commonwealth
is incorrect
that
the Common
Appellant
photographs
cient evidence
the nude
“affront
wealth was
possessed
purpose
were
for
For the
actually
or alarm”
caused.
thus
gratification,
sexual stimulation
3127, it is
for
purposes of Section
sufficient
failing
of the elements of
to establish one
the Commonwealth
show
the offenses defined at
Pa.C.S.
knew or should have known that his con
Appellant’s
Sexual Abuse of Children.
likely
duct
to cause affront
alarm.
above,
brief at 19-20. As we noted
Sec
v. King, Pa.Super.
Commonwealth
6312(d) provides
tion
that:
(emphasis
434 A.2d
added).26
Any
knowingly possesses or
person who
difficulty
finding
no
We have
book, magazine, pamphlet,
controls
met this burden.
the Commonwealth
film,
slide,
videotape
Likewise,
com-
photograph,
find that
we
the Commonwealth
puter depiction
depict-
or other material
presented sufficient evidence to show that
age
swimming
ing
years
his
child under
of 18
Appellant knew
actions
quarry
by persons
Again, we
that because the
observed
who have not consented
27.
note
occurrence,
Appel-
specially
frequently
by
public,
to its
used
who have not
so
certainly
were
positioned
lant
knew that his actions
in such a manner as to
themselves
others,”
it,
by
con-
"likely
be
as is
likely
observed
who
be
be able to observe
are
templated by
5901.
Section
by
affronted
such conduct or to find such
alarming.” Allsup,
Pa.
conduct
Here,
victims,
conjunction
evi-
with his claim that the
In
who
392 A.2d
minors,
support his convic-
dence was insufficient to
have
werе
could not
consented
exposure
tions
lewd-
for indecent
conduct.
ness,
Kitchen,
convictions
(2002);
asserts that those
814 A.2d
Common-
support
un-
provide
conviction
Todd,
cannot
Pa.Super.
wealth
6301(a),
corrup-
pertaining to the
der
(1985).
634-635
above, that Sec-
tion minors. As we noted
tion states that:
Williams,
panel
although
In
of this
Court
appellant’s
declined to find
actions
Whoever,
years
being
age
of the
walking
parking
across a
lot
his underwear
corrupts
upwards, by
act
or tends
lewd,
assuming that when
it had no trouble
corrupt
minor
than
the morals of
less
so,
he
hе did
knew that
would
abets,
aids,
age,
years
or who
entices
residents,
that the resi-
observed
encourages
in the com-
such minor
*9
Williams, 574 A.2d
dents would be offended.
knowingly
or who
mission of
at 1162.
encourages
or
such minor in violat-
assists
court,
parole
ing
or her
or
order of
his
charged
degree.
King,
appellant was
with
In
the
of the first
commits misdemeanor
exposure,
unsuccessfully argued
light
In
of our conclu-
and
sup-
testify
was
to
that
victim’s failure to
that she
was sufficient evidence
the
sion that there
ex-
by
port Appellant’s
con-
convictions for indecent
actually "аffronted or alarmed”
his
lewdness,
posure
we find this claim
duct was a flaw fatal to the Commonwealth’s
be without merit.
King,
to
case.
sonally
photos
each
examined
of the 273
pellant
carry
allegation
failed to
this
for
young
and the
males
brief,
ward to his aрpellate
however.
In
settings, complete-
are shown in various
stead, the brief
on
challenges
sentence
ly
photos depicting young
nude. These
(1)
grounds
that the trial court
based
boys
with
exposed
their
its departure
guidelines
from the
on fac
smiling
provocative
with a
poses
nude
already contemplated
tors that were
defendant near them were
taken
(2)
guidelines,
engaged
speculation,
sole purpose of the sexual stimulation
(3)
(4)
factors,
ignored mitigating
ignored
viewer,
gratification
of the
Keith
findings
Sexual Offenders As
Tiffany. Common sense аnd human ex-
Board,
sessment
failed
“ade
perience
interpreta-
no
dictates
quately
unique
take into consideration the
logical
tion. There is no other
or ration-
facts and
Ap
circumstances
this case.”
al conclusion.
pellant’s
brief
Because these
24-25.
Opinion filed
at 15.
It
well
allegations
Appel
were not included
12/21/05
1925(b) statement,
responsibility
they
within the
of the trial court
lant’s Rule
have
photo-
to make the determination that the
purposes
appeal.
been waived for
Com
Lord,
graphs
were not taken for
Pa.
monweаlth v.
306(1998).
of the
claim
legitimate purposes contemplated by
Because the
that the trial
6312(f),
and we
not disturb
court failed
state the reasons for
will
sen
Savich,
finding.
supported
tencing
the record
Commonwealth,
argument,
prohibition
presented
29. Pertinent to
for bona fide
6312(d)
educational, scientific,
apply
contained in Section
does not
governmental
judi-
controlled,
"any
possessed,
material that is
6312(f).
purpose.” 18
cial
Pa.C.S.
*10
brought
brought
or caused
be
into this
there,”
that
got up
brief,
too has our suit once we
in
it
by
argument
the
N.T.,
it.”
“talked
about
2116;
they had
Common
been waived. Pa.R.A.P.
05/31/2005,
is the extent
at 89. This
Breakiron,
5,n.
v.
566 Pa.
wealth
the
that
testimony relative to
element
(2001).
781 A.2d
98 n. 5
be
likely
affronted
would
someone
¶
reasons,
judg-
forgoing
17 For the
testify that
Mr. Parfitt did not
alarmed.
is affirmed.
ment of sentence
alarmed, nor was
was affronted or
he
¶ 18 Affirmed.
how the other two
any evidence of
there
swimming. To
to the naked
boys reacted
¶
JOYCE, J„
FILES
suits was
contrary, swimming without
AND DISSENTING
CONCURRING
departed, and
plan
group
before
OPINION.
was not the
that this
Mr. Parfitt testified
had
naked.
they
swum
first
time
AND DISSENTING
CONCURRING
testimony
viewing
Clearly, even in
JOYCE,
BY
OPINION
J.:
light
favorable
the Common-
most
¶
agree
thoughtful
1 I
with the
rationale
winner,
this element
wealth as
verdict
Majority relating
conclusions of the
doubt,
beyond a reasonable
proven
not
sufficiency of
the search warrant and the
is insufficient
establish
and the evidence
evidence to sustain
convic-
Thus,
guilty
open
lewdness.30
However,
I
exposure.
tion of
indecent
judgment
of sentence
I
reverse
would
disagree that the Commonwealth met its
conviction.
and vacate that
proving
open
burden of
the crime of
lewd-
¶4 My position
open
on the
lewdness
ness, I
that conviction and
would reverse
with affirm-
incompatible
is not
сonviction
judgment of
In that
vacate the
sentence.
of sentence
ing Appellant’s judgment
I dissent.
regard,
18 Pa.
exposure
conviction.
indecent
¶2
To sustain a conviction for
3127(a) provides:
C.S.A.
lewdness,
prove
the Commonwealth must
a)
person commits
defined.—A
Offense
an accused
beyond reasonable doubt that
exposes
if that
exposure
knows is
“does
lewd act which he
place
public
his or her
who would
be observed
others
present
are
any place
where there
affronted
or alarmed.” 18 Pa.C.S.A.
circumstances
other
under
5901;
Allsup,
481 Pa.
or she knows or should know
which he
(1978).
A.2d
In this
offend, af-
likely to
that this conduct is
case,
evidence
record
devoid
front or alarm.
anyone was
or alarmed.
affronted
Thus,
“places” where the
there are two
at the
can be commit-
exposure
3 There were three individuals
of indecent
crime
one,
Only
ted,
“any place
quarry
Appellant.
“any public place”
with
Steve
persons un-
Parfitt,
present
He
at trial.
stated
where there are
testified
or she
accompanied Appellant
der circumstances
all of those who
that this conduct is
knows or should know
going
that we were
to swim without
“knew
Majority,
by the
Majoriiy
Common-
cases cited
states that
The
Kitchen,
(Pa.Super.2002)
anyone
wealth was not
Todd,
Pa.Super.
offended,
and Commonwealth
alarmed or affronted because
(1985), do not
opinion,
A.2d
634-635
Majority
victims were minors.
hand,
even the same
exception
deal with issue
n.
I do
find such
stated
broadly
so to
read so
and cannot be
nor can I locate
in 18 Pa.C.S.A.
statutory
of the crime.
usurp a
element
proposition. The
stands for that
case which
*11
offend,
likely to
affront or alarm.” See
Walt,
De
(Pa.Super.2000) (treating places the two as
alternative elements the crime and find-
ing porch back yard was not a
public place); see also
Andrulewicz, 911 (Pa.Super.2006) A.2d 162
(indecent exposure committed when the exposed genitals
defendant his in presence home).
of minors while in his
¶ instance, 5 In exposed public place, privately
owned frequented by tract land that was public neighboring swimming as the
hole. Since in a public
place, opposed place to “any where
there are present cir- under
cumstances which he or she knows or
should know this conduct is
offend, alarm,” affront or the Common-
wealth offended,
someone was affronted
alarmed proof to sustain its burden exposure. join 6 Accordingly, I in part and dis- in part.
sent Pennsylvania,
COMMONWEALTH of
Appellee MARTZ, Appellant.
Dereck
Superior Pennsylvania. Court
Submitted Jan.
Filed June