Philadelphia Criminal Defense Blog

Zak Goldstein 11/27/22 Zak Goldstein 11/27/22

PA Superior Court Defines "Nudity" for Transmission of Sexually Explicit Images by Minor Statute

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of In re: T.Q.B., rejecting a sufficiency challenge by the juvenile defendant who argued that because the images in question did not contain photos of the complainant’s actual nipple but instead showed only the bottom of her breast, they did not qualify under the statute’s definition of nudity. This is a concerning decision because such a broad interpretation of the statute allows for juvenile adjudications even where the person in the image that was transmitted had clothing on.

THE FACTS OF IN RE: T.Q.B.

On October 18, 2020, T.Q.B. went live on Instagram but told the victim, A.D., that the video they were making was private. T.Q.B. convinced A.D. to lift up her shirt and expose her bra and the bottom of her breast, below the nipple. T.Q.B. was 13 at the time of the video, A.D. was 12 years old at the time of the video and suffered from intellectual disabilities . The video was made public and shared for several months despite attempts by A.D.’s mother to remove the video from the internet. The video was also shared amongst peers at their school. Eventually, the police became involved, and they charged T.Q.B. with transmission of sexually explicit images by a minor and cyber harassment of a minor.

The Crimes Charged

The statutes define the crimes as:

§ 6321. Transmission of sexually explicit images by minor.
(a) Summary offense.--Except as provided in section 6312 (relating to sexual abuse of children), a minor commits a summary offense when the minor:
(1) Knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of himself.
(2) Knowingly possesses or knowingly views a sexually explicit image of a minor who is 12 years of age or older.
(b) Misdemeanor of the third degree.--Except as provided in section 6312, a minor commits a misdemeanor of the third degree when the minor knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of another minor who is 12 years of age or older.
(c) Misdemeanor of the second degree.--Except as provided in section 6312, a minor commits a misdemeanor of the second degree when, with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor, the minor:
(1) makes a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor; or
(2) transmits, distributes, publishes or disseminates a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor.
(d) Application of section.--This section shall not apply to the following:
(1) Conduct that involves images that depict sexual intercourse, deviate sexual intercourse or penetration, however slight, of the genitals or anus of a minor, masturbation, sadism, masochism or bestiality.
(2) Conduct that involves a sexually explicit image of a minor if the image was taken, made, used or intended to be used for or in furtherance of a commercial purpose.
(e) Forfeiture.--Any electronic communication device used in violation of this section shall be subject to forfeiture to the Commonwealth, and no property right shall exist in it.
(f) Diversionary program.--The magisterial district judge or any judicial authority with jurisdiction over the violation shall give first consideration to referring a person charged with a violation of subsection (a) to a diversionary program under 42 Pa.C.S. § 1520 (relating to adjudication alternative program) and the Pennsylvania Rules of Criminal Procedure. As part of the diversionary program, the magisterial district judge or any judicial authority with jurisdiction over the violation may order the person to participate in an educational program which includes the legal and nonlegal consequences of sharing sexually explicit images. If the person successfully completes the diversionary program, the person's records of the charge of violating subsection (a) shall be expunged as provided for under Pa.R.C.P. No.320 (relating to expungement upon successful completion of ARD program).
(g) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Disseminate." To cause or make an electronic or actual communication from one person, place or electronic communication device to two or more other persons, places or electronic communication devices.
"Distribute." To deliver or pass out.
"Electronic communication." As defined in section 5702 (relating to definitions).
"Knowingly possesses." The deliberate, purposeful, voluntary possession of a sexually explicit image of another minor who is 12 years of age or older. The term shall not include the accidental or inadvertent possession of such an image.
"Knowingly views." The deliberate, purposeful, voluntary viewing of a sexually explicit image of another minor who is 12 years of age or older. The term shall not include the accidental or inadvertent viewing of such an image.
"Minor." An individual under 18 years of age.
"Nudity." The showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered male genitals in a discernibly turgid state.
"Publish." To issue for distribution.
"Sexually explicit image." A lewd or lascivious visual depiction of a minor's genitals, pubic area, breast or buttocks or nudity, if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such nudity.
"Transmit." To cause or make an electronic communication from one person, place or electronic communication device to only one other person, place or electronic communication device.
"Visual depiction." A representation by picture, including, but not limited to, a photograph, videotape, film or computer image.

(a.1) Cyber harassment of a child.--
(1) A person commits the crime of cyber harassment of a child if, with intent to harass, annoy or alarm, the person engages in a continuing course of conduct of making any of the following by electronic means directly to a child or by publication through an electronic social media service:
(i) seriously disparaging statement or opinion about the child's physical characteristics, sexuality, sexual activity or mental or physical health or condition; or
(ii) threat to inflict harm.
(2) (i) If a juvenile is charged with a violation of paragraph (1), the judicial authority with jurisdiction over the violation shall give first consideration to referring the juvenile charged with the violation to a diversionary program under Pa.R.J.C.P. No. 312 (relating to Informal Adjustment) or No. 370 (relating to Consent Decree). As part of the diversionary program, the judicial authority may order the juvenile to participate in an educational program which includes the legal and nonlegal consequences of cyber harassment.
(ii) If the person successfully completes the diversionary program, the juvenile's records of the charge of violating paragraph (1) shall be expunged as provided for under section 9123 (relating to juvenile records).

The trial court adjudicated the juvenile delinquent of both offenses, and the juvenile appealed.

THE SUPERIOR COURT’S DECISION

First, the appellant challenged the ruling of “nudity” finding for 18 Pa.C.S. § 6321(c), arguing that what the video portrayed was not nudity per the statute and precedent. The crux of the appellant’s argument was that since the nipple was not exposed, this did not constitute nudity. The Superior Court acknowledged the limited precedent on the matter and focused primarily on the statute’s wording and definition. 18 Pa.C.S. § 6321(g) defines nudity as “the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple[.]” The Superior Court determined that because the bottom of the breast was exposed, this is below the top of the nipple and thus met the definition of “nudity” for the purposes of the statute and the juvenile court did not err in its determination.

Second, the appellant challenged the ruling that the video state was “seriously disparaging” and that there was insufficient evidence due to no showing of a physical manifestation of harm to meet 18 Pa.C.S. § 2709(a)(1). The Superior Court utilized the totality of the circumstances to determine that the repeated pressure for A.D. to expose herself, the lying about the video’s privacy, and the refusal to take the video down meant it was to be harassing in nature. The Superior Court reiterated that “[s]eriously disparaging statement or opinion” is that which “is intended to and under the circumstances is reasonably likely to cause substantial emotional distress to a child of the victim’s age and which produces some physical manifestation of the distress.” 18 Pa.C.S. § 2709(a)(1)(f). The Superior Court determined that an actual physical manifestation does not need to be nightmares, depression, or another physical ailment, but that A.D.’s humiliation is enough for physical manifestation. They also stated that it was reasonably likely due to the victim’s age and mental capacity to harm A.D. in conjunction with the extended period of time in which the video was allowed to be publicly viewed and circulated. The Superior Court deemed that the juvenile court did not err in finding that the appellant’s conduct was sufficient to be convicted on 18 Pa.C.S. § 2709(a)(1).

These are very, very broad readings of both statutes, and it is very possible that further appeals could take place as the Superior Court may consider granting en banc argument. The Supreme Court may also consider granting an appeal to review these definitions.

FACING CRIMINAL CHARGES? WE CAN HELP.

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 11/18/22 Zak Goldstein 11/18/22

PA Superior Court: Juvenile May Not Be Prosecuted for Corruption of Minors

Zak Goldstein Criminal Lawyer — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of In re: J.C., holding that a juvenile court does not have the jurisdiction to adjudicate a juvenile defendant delinquent for the offense of corruption of minors. The corruption of minors statute plainly applies only to someone who is over 18 years of age, and so a juvenile defendant may not be charged in juvenile court with a violation of this statute.

The facts of In re: J.C.

A police officer in Monroe County obtained an arrest warrant for J.C., alleging that J.C. had sexually assaulted a female classmate while the two were riding on a school bus. The school district deleted surveillance video of the incident during a software update, but the complainant reported the incident to school officials. The officials then questioned J.C., and J.C. admitted that he had done it. The Commonwealth then charged him in juvenile court with aggravated indecent assault, indecent assault, and open lewdness.

J.C. filed a motion to suppress the statement, arguing that school officials were required to give him Miranda warnings before questioning him. J.C. also moved to dismiss the case due to the school district’s destruction of the video evidence. The trial court denied the motion, and J.C. eventually entered into an admission (juvenile guilty plea) to the charge of corruption of minors. The court accepted the admission, and the Commonwealth agreed to nolle prosse the remaining charges. The court adjudicated J.C. delinquent. J.C. filed timely post-dispositional motions. The court denied the motions, and J.C. appealed. On appeal, J.C. argued both that the court should have granted his motions and that certain portions of his sentence were unconstitutional or illegal.

The Superior Court’s Ruling

J.C. did not actually argue that the admission was illegal because corruption of minors could not apply to him, a minor. The Superior Court, however, has the authority to review cases for jurisdiction sua sponte, and in this case, the Court, on its own, recognized that the trial court did not have jurisdiction to accept the admission.

Corruption of minors is defined as follows:

(1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.

18 Pa.C.S. § 6301(a)(1)(i)

The Court recognized that the statute, by its plain language, seeks to prevent prohibited actions between minors and individuals 18 years or older, otherwise defined as an adult. Here, J.C. was clearly not an adult – he was a minor at the time of the incident. Therefore, he could not be prosecuted for corruption of minors because the statute applies only to someone who is older than 18. There were other offenses he could have been prosecuted for, as he originally was, but it was illegal for the court to accept an admission to a charge which does not apply to juveniles. The court lost jurisdiction when the Commonwealth withdrew the properly filed charges and charged J.C. only with a charge that applies to adults.

Therefore, the Superior Court reversed the disposition and remanded the case back to the juvenile court for further proceedings. It did not rule on whether the Commonwealth could reinstate the original charges. This ruling benefits J.C. in that it vacates his adjudication, but ultimately, it could make things worse for him as the Commonwealth may seek to proceed on the original, more serious sex offenses. Nonetheless, it is clear that a juvenile court may not hear a prosecution against a juvenile defendant for corruption of minors as that statute applies only to adults.

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Zak Goldstein 11/9/22 Zak Goldstein 11/9/22

PA Superior Court: Police May Enter Car To Retrieve Ghost Gun Without Warrant If Gun In Plain View

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Malik Smith, overturning a previously granted motion to suppress relating to the search of a vehicle from which the police found a “ghost gun.” The Superior Court concluded that the trial court should not have suppressed a gun found in a car pursuant to a warrantless search of that car because the police properly entered the car under the “plain view” exception to the warrant requirement.

The Facts of Com v. Malik Smith

The defendant was pulled over in his vehicle for operating the vehicle with excessive tint on the windows in violation of the Motor Vehicle Code. The defendant was the lone occupant of the vehicle and was directed to roll down all the windows. As Officers approached the vehicle, one of the Officers observed a firearm on the rear floorboard. The officers ordered the defendant to exit the car, put him in handcuffs, and put him in the back of the police car. The defendant did not have a license to carry and was eventually charged with various violations of the uniform firearms act (VUFA). Prior to trial, the defendant moved to suppress the gun, arguing that police should have obtained a search warrant prior to the search and that the search was not legal under the plain view exception to the warrant requirement because the police did not know if the defendant had a license to carry. The trial court granted the motion to suppress, and the Commonwealth appealed.

The Superior Court’s Ruling on Appeal

The Superior Court reviewed the legal conclusions de novo, limited by the factual findings of the trial court. In its review, the court determined that the plain view doctrine allowed for the seizure of the firearm without a warrant. The Superior Court prefaced this determination based on a previous case Commonwealth v. Collins, 950 A.2d 1041 (Pa. Super. 2008). In Collins the court set out a three-pronged standard: “(1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object.”

First, the Superior Court determined that the traffic stop was lawful and thus when the officer observed the firearm, it was from a lawful vantage point. The traffic stop for the window tint was justified because window tint violates the Motor Vehicle Code. Therefore, police had the authority to conduct the initial stop and pull the vehicle over.

Second, the court reviewed the second factor of whether it was immediately apparent that the firearm was incriminating - in other words, was it obviously illegal or some kind of contraband. In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), the Pennsylvania Supreme Court ruled that possession of a firearm is not enough to infer criminal activity. When the officer observed the firearm, however, based on his years of experience, he was able to see that it had been modified, and was a “ghost gun.” Using a totality of the circumstances approach, the Superior Court determined that the incriminating nature of the firearm must have been immediately apparent, meeting the second prong. This factor is the most dubious under Hicks, but ghost guns are generally not legal in Pennsylvania, so had the officer not been able to tell that it was a ghost gun, the court might have reached a different conclusion. Finally, the court found probable cause to believe a crime had been committed based on the incriminating appearance of the firearm. Because the officer lacked advance notice and an opportunity to obtain a warrant, the officer had a lawful right to access the firearm and conduct a search.

Having met the three prongs needed to meet the plain view exception, the Superior Court determined that the seizure was lawful and did not violate the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. It therefore reversed the order of the trial court and remanded the case for trial. This case unfortunately represents a step away from the broad privacy rights granted by the Supreme Court in Commonwealth v. Alexander and Commonwealth v. Hicks. In Commonwealth v. Alexander, the Supreme Court held that police should get a search warrant prior to searching a car. In Hicks, the Court held that police may not assume that someone is possessing a gun illegally because many people possess firearms perfectly legally under the Second Amendment. Now, however, the Superior Court has begun to carve out significant exceptions to these two basic principles to the detriment of the defendant in this case and to the rights of citizens everywhere to be free of warrantless searches.

Zak Goldstein 11/7/22 Zak Goldstein 11/7/22

PA Superior Court: Trial Court Erred in Dismissing Case Where Commonwealth Sought to Proceed Without Victim

The Pennsylvania Superior Court has decided the case of Commonwealth v. Fitzgerald, finding both that statements made to emergency personnel are non-testimonial and therefore generally admissible under the confrontation clause. The court also held that the trial court erred in dismissing the case where the Commonwealth indicated that it wanted to proceed and planned to seek to introduce the complainant’s statements to those EMTs and responding officers in the complainant’s absence. The court recognized that in general, the remedy for failing to present a necessary witness at trial is that the trial court should find the defendant not guilty. Further, it is fairly well-established that statements made as part of calling for help in response to an emergency do not implicate the confrontation clauses of the state and federal constitutions. Therefore, the Superior Court reversed the trial court’s order dismissing the case and remanded the matter for a trial.

Commonwealth v. Fitzgerald

In this case, the defendant appeared for a non-jury trial after the Commonwealth had requested two continuances due to its failure to locate the complainant. For this third listing, the Commonwealth indicated that it would move forward without the complainant. The defendant moved to dismiss the charges, arguing that there had been no opportunity to cross-examine the complainant and that introducing the complainant’s out-of-court statements in her absence would violate the confrontation clause. The confrontation clause gives a defendant the right to confront their accusers; this is generally accomplished through cross-examination.

The Commonwealth disagreed, contending that it would not introduce any evidence that would violate the confrontation clause. The trial court allowed the Commonwealth to make an offer of proof, and the Commonwealth announced its intention to enter a 911 call made in an emergency situation, to present photographs from police officer’s body cameras and observations of the scene, and to play a portion of body camera footage that showed the victim interacting with EMS. The Commonwealth suggested that it did not intend to introduce any hearsay statements through police officers.

After hearing this offer of proof, the trial court ruled that the proffered statements would be testimonial. The court therefore dismissed the charges.

The Proffered Evidence

The evidence in question was the following:

The complainant made a 911 call and informed the operator that her boyfriend, the defendant, had assaulted her and threatened her over a period of hours throughout the day. Pittsburgh Police Officer Tyler Newman responded to the 911 call and encountered the complainant, who indicated that the defendant had been physically assaulting and threatening to kill her over multiple hours. Officer Newman observed injuries on the complainant consistent with this story, and photographs of the injuries on her face, neck and collarbone were preserved from the officer’s body camera to be later introduced at the trial. EMS arrived on scene, and Officer Newman’s body camera captured a conversation between the complainant and a paramedic. The video showed that the paramedic questioned her to determine the extent of her injuries. Officer Newman also asked what she had been assaulted with, to which she replied she had been attacked by hand.

The police located the defendant based on the complainant’s description and found that the defendant was heavily intoxicated. They charged him with two counts of simple assault and one count each of terroristic threats and strangulation. The case was scheduled for a preliminary hearing. The complainant appeared for the preliminary hearing, and the defendant waived that hearing. Thus, his attorney never cross-examined the complainant.

The trial court dismissed the case, and the Commonwealth filed a motion to reconsider, attaching the transcript of the 911 call, transcript of the video, and still photographs. The trial court denied the motion to reconsider. The Commonwealth appealed.

The Superior Court’s Decision

First, the Superior Court rejected the defendant’s argument that the appeal should be quashed as interlocutory. As the trial court’s order resulted in the dismissal of the case, the order was a final order, and the Commonwealth therefore had the right to appeal.

Second, the Superior Court rejected the argument that the out-of-court statements were inadmissible due to the confrontation clause. The confrontation clause, as explained in the United States Supreme Court case of Crawford v Washington, prohibits out-of-court testimonial statements. Not all out-of-court statements are testimonial, however. Generally, statements are testimonial when they are intended to establish events for a subsequent criminal prosecution. Statements made in response to an ongoing emergency are often not testimonial.

Here, the complainant escaped from the defendant and went to a neighbor’s apartment. She called 911 in an attempt to obtain assistance from the police, not in order to provide a statement that would be used at a trial. The emergency was still ongoing, and follow-up questions asked by the operator were focused on assessing the threat to police and the victim to help with police response to the emergency. Citing the precedent of Davis v Washington, where a 911 call about an ongoing domestic disturbance was admitted as evidence and the US Supreme Court confirmed that the Confrontation Clause only applied to testimonial statements, the Superior Court concluded that the trial court in this case was mistaken in ruling in favor of the defense. Therefore, the trial court should not have even reached the issue of whether to dismiss the case because the statements themselves were admissible.

Finally, the Superior Court ruled that the trial court’s remedy was improper. The remedy for the Commonwealth seeking to proceed without a particular witness is to find a defendant not guilty following the close of the Commonwealth’s case; it is not to dismiss the case. Therefore, the Superior Court reversed the trial court’s ruling and remanded the case for trial.