Philadelphia Criminal Defense Blog

Zak Goldstein 9/2/21 Zak Goldstein 9/2/21

PA Superior Court: Exposing Genitals in Public Place Sufficient for Indecent Exposure Conviction Even If No One Around

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rudolf, holding that there is sufficient evidence to convict a defendant of indecent exposure when there is evidence that a defendant exposed his or her genitals in a public place. This decision seems somewhat surprising as the statute seems to require that there at least be a risk that someone else would encounter the person before criminal liability should attach.

Commonwealth v. Rudolf

A Lower Windsor Township Police officer was on patrol in a marked police car. At approximately 4:00 AM, he drove past an area with a large parking lot, boat launch, park, and a children’s playground. The officer saw the defendant standing by himself in the playground wearing a bright yellow sleeveless shirt and no pants. He was able to see the defendant’s genitalia. The officer then got out of his vehicle and began to move his spotlight toward the defendant. The defendant noticed the officer and then ran behind a tree. The officer then began to yell at the defendant. Eventually, after an unknown period of time, the defendant sat down at a picnic table and appeared to be putting on shorts.

The officer then began speaking with the defendant. The defendant told the officer that he was in the park to work out, but the officer did not observe any fitness equipment nearby. However, the officer did notice that the defendant had a giant bottle of lotion with him. The officer then told the defendant to leave the area. However, about a half an hour later the same officer saw the defendant about 600 yards away. The officer again told the defendant to leave the area. Later on, the defendant was arrested and charged with open lewdness and indecent exposure.

The defendant elected to proceed by jury trial. At trial, the above facts were placed into the record. The defendant testified on his behalf at trial. He testified that he drove to the playground to work out. Specifically, he would use “the monkey bars for pull-ups,…sit-ups, and leg raises, and that kind of stuff.” As he began to change his shorts, he noticed a light coming rom a car about a half a mile away. Because he was in a “compromising situation” he hid behind a bush. The defendant also stated that he was not naked the second time he saw the officer, but instead was wearing “pretty skimpy” running shorts. Additionally, the defense called a private detective who photographed the views of the playground at 4:00 AM and testified that it was incredibly dark and difficult to capture anything on film.

At the conclusion of the trial, the jury returned a verdict of guilty for the charges of open lewdness and indecent exposure. The case proceeded immediately to sentencing where the trial court imposed 12 months’ probation for the charge of open lewdness and a concurrent sentence of 24 months’ probation for indecent exposure. The defendant did not file any post-sentence motions. The defendant’s attorney then withdrew from the case. The defendant then filed a pro se notice of appeal. The defendant later hired an attorney to represent him on appeal. The defendant raised two issues on appeal. For purposes of this blog, only the issue of whether the evidence was sufficient to support his conviction for indecent exposure will be addressed.

What is Indecent Exposure?

18 Pa. C.S.A. § 3127 is the statute that governs the crime of indecent exposure. It states:

(a) Offense defined.--A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.
(b) Grading.--If the person knows or should have known that any of the persons present are less than 16 years of age, indecent exposure under subsection (a) is a misdemeanor of the first degree. Otherwise, indecent exposure under subsection (a) is a misdemeanor of the second degree.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the defendant’s conviction for indecent exposure. On appeal, the defendant argued that the Commonwealth failed to meet its burden because it did not establish that other persons were present or that he knew or should have known that his conduct was “likely to offend, affront, or alarm.” Specifically, the defendant argued that because where he was changing was “incredibly dark” and there was no one present other than the police officer that he had “no reason to believe that such conduct would likely to offend, affront, or alarm anyone.”

The Superior Court was not persuaded by this argument. The Superior Court reviewed 18 Pa. C.S.A. § 3127 and found that once the Commonwealth has shown that the act occurs in a public place, then it is not required to show that other people were present or that the actor knew or should have known that their conduct was likely to offend, affront, or alarm. In the instant case, it was undisputed that the defendant was in a public playground. Therefore, because the defendant’s actions took place in a public setting, the Commonwealth did not have to prove that he knew or should have known that his conduct was likely to offend, affront, or alarm. The defendant also did not get relief on his other claim. Consequently, the defendant’s convictions will stand and he will be forced to serve his probation sentence.

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Zak Goldstein 8/12/21 Zak Goldstein 8/12/21

PA Supreme Court: Commonwealth Must Prove Defendant Committed a Sexual Offense for Felony Corruption of Minors Conviction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Baker-Myers, holding that to be convicted of the charge of corruption of minors (as a felony of the third degree), the Commonwealth must prove beyond a reasonable doubt that the defendant committed a sexual offense, as defined by Chapter 31. However, it is not necessary for the Commonwealth to actually charge or secure a conviction for the predicate Chapter 31 offense. Further, if a defendant is charged with a sexual offense and is acquitted of the charge, he or she can still be found guilty of felony corruption of minors. However, as in this defendant’s case, if the trial court specifically instructs the jury that it must find the defendant guilty of the predicate offenses that were actually charged, and the jury acquits the defendant of those charges, then a defendant cannot be found guilty of felony corruption of minors.

Commonwealth v. Baker-Myers

The defendant, who was 20 years old at the time, called the 17-year-old complainant nearly a dozen times. The complainant, who had been friends with the defendant for several years, but had not seen him in weeks, missed his calls because she was sleeping. When she texted him back, the defendant stated that he needed to talk with her in person. The two exchanged several messages before the defendant called the victim twice and told her that he was outside of her house. The complainant greeted him at the end of her driveway before agreeing to take a ride with him on his dirt bike.

The defendant then drove them to some baseball fields located a few blocks from the victim’s house. Once there, the defendant instructed the complainant to leave her phone, explaining he wanted their conversation to “be private and no one to listen to it.” The complainant complied and then they continued to drive to another location along some railroad tracks. The complainant and the defendant proceeded to talk for approximately twenty minutes.

At some point during the conversation, the complainant alleged that the defendant “started to get really touchy.” The complainant responded by telling the defendant that she did not feel that way about him and that she was seeing someone else. Undeterred, the defendant began to touch the complainant’s breasts before undoing part of her bathing suit top from behind. While the complainant attempted to retie the part the defendant had undone, he undid the other part, and removed it entirely. He then tossed it into a nearby bush. Eventually, the defendant picked up the complainant and began to undress her. He then digitally penetrated her and then had vaginal intercourse with her. During this time, the complainant repeatedly told the defendant to stop to which he responded that she “probably liked him.” Afterwards, both the defendant and the complainant got dressed and returned to the baseball fields to collect their phones. The defendant then took the complainant home.

The Criminal Charges

The defendant was subsequently arrested and charged with rape, sexual assault, aggravated indecent assault, indecent assault, and felony corruption of minors. It should be noted that the crime of corruption of minors has multiple subsections, one that is graded as a felony, while the other is graded as a misdemeanor. The case then proceeded to a two-day jury trial. At the conclusion of the evidence, the trial court charged the jury on the sexual offenses and the corruption of minors charge. In regards to the jury instructions for the corruption of minors charge, the judge gave a clarifying instruction: “whoever being of the age of 18 and upwards by any course of conduct in violation of Chapter 31, relating to the other sexual offenses being rape, sexual assault, indecent , corrupts or tends to corrupt the morals of any minor of less than 18 years of age…commits a felony of the third degree.”

During the jury’s deliberations, they returned with questions concerning the corruption of minors charge. The court stated “I don’t think it’s the age that is the sticking point here. I think it is the course of conduct in violation…relating to sexual offenses.” Ultimately, the jury returned a verdict of guilty for the corruption of minors charge and not guilty for the sex offenses. The defendant was subsequently sentenced to one to two years’ incarceration and a consecutive three years’ probation tail. Additionally, he had to register as a sex offender for fifteen years. The defendant then filed a timely appeal. On appeal, the defendant argued that the evidence was not sufficient to convict him on the felony corruption of minors charge because he was acquitted of the underlying sexual offenses.

The Superior Court’s Decision

In a divided opinion, the Superior Court remanded the defendant’s case for re-sentencing. The majority concluded that the Commonwealth failed to prove an essential element of the felony corruption of minors charge because he had been acquitted of the actual sexual offenses. However, the Superior Court did find that there was sufficient evidence to convict the defendant of the misdemeanor corruption of minors charge. The Commonwealth then filed a petition for allowance of appeal to the Pennsylvania Supreme Court. On appeal, the Commonwealth asked the Pennsylvania Supreme Court to determine whether the law requires that a defendant be found guilty of a sex offense to sustain a conviction for felony corruption of minors. The Pennsylvania Supreme Court agreed to hear the case.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court affirmed the Superior Court’s decision. In making its decision, the Pennsylvania Supreme Court reviewed the corruption of minors statute. Based on this review, the Court held that “the Superior Court properly determined the language ‘in violation of Chapter 31’ is an essential element of a felony corruption of minors offense. Notably , the Pennsylvania Supreme Court found that the Commonwealth is not required to formally charge or secure a conviction for a predicate Chapter 31 offense to convict a defendant of the felony corruption of minors offense.

However, this was not the end of the court’s analysis. In the defendant’s case, the judge specifically instructed the jury that it was required to find that the defendant committed one of the predicate offenses to convict him of pertaining to the corruption of minors charge. As such, because the jury acquitted the defendant on the sex offenses, the Pennsylvania Supreme Court held that the defendant’s conviction for the felony corruption of minors charge could not stand because of the instructions that were given to the jury. Therefore, the defendant will get a new sentencing hearing and his conviction for the felony corruption of minors charge will be vacated.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 5/26/21 Zak Goldstein 5/26/21

PA Supreme Court: Rape Shield Law Bars Evidence of Complainant's Prostitution Conviction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rogers, holding that a defendant may not introduce evidence of a complainant’s prior conviction for prostitution to corroborate his testimony that he did not sexually assault the complainant, but rather merely engaged in paid sexual encounter. This decision addresses Pennsylvania’s Rape Shield Law, which is a powerful law that restricts a defendant’s ability to cross-examine complainants and introduce evidence to show that the challenged sex act may have been consensual. The law shields otherwise relevant evidence from the juries and often makes it difficult to defend against rape allegations even from those who have made false allegations before.

Commonwealth v. Rogers

The defendant physically and sexually assaulted five women over the course of a ten-month period in Philadelphia. The defendant was charged with dozens of crimes, including rape, robbery, and involuntary deviate sexual intercourse. The charges were consolidated for trial. In a pretrial motion in limine, the defendant sought permission to introduce evidence that two of his victims had a history of convictions for prostitution in the general area where the incidents occurred. The defendant wanted to use these convictions to show that his encounters, with these particular women, were consensual acts of prostitution.

In his filings, the defendant acknowledged that the existence of the Rape Shield Law (which generally prohibits the introduction of a complainant’s past sexual history), but argued that the Rape Shield Law did not prohibit the introduction of this evidence. The trial court denied the defendant’s motion because “none of the convictions related to encounters with [the defendant].” The defendant then elected to proceed with a waiver trial. The complainants testified in detail about their assaults and how he also stole personal property from them. The defendant also testified. He testified that he had sexual relations with all the victims, but that all of them were consensual. For two of the victims, he stated that these were sex-for-money transactions. At the conclusion of the trial, the trial court found him guilty of the aforementioned charges.

A sexually-violent predator hearing was subsequently held and the trial court determined that he qualified as such. At his sentencing hearing, the defendant was sentenced to a term of 55-170 years’ incarceration. The defendant then filed a post-sentence motion which was denied. The defendant then filed an appeal. On appeal, the defendant challenged his sentence, the weight of the evidence, and the denial of his motion in limine.

The Superior Court’s Decision

A three-judge panel of the Superior Court affirmed the defendant’s sentence. The Superior Court also denied the defendant’s appeal regarding his Rape Shield Law motion. Undeterred, the defendant filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the defendant’s appeal. For purposes of this blog, only the issue concerning the defendant’s motion in limine will be addressed.

What is the Rape Shield Law?

The Rape Shield Law prohibits the introduction of an alleged victims “past sexual conduct, past sexual victimization, allegations of past sexual victimization, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct.” The purpose of the Rape Shield Law is to prevent a trial from shifting its focus from whether the defendant committed the crimes he is accused of “to the virtue and chastity of the victim.” Nonetheless, it cannot be applied in a manner that violates the defendant’s constitutional right to a fair trial, including his right to present evidence and cross-examine witnesses.

As such, courts have sought to balance the defendant’s right to a fair trial, including his right to confront his accuser, against the state’s interests embodied in the Rape Shield Law. Consequently, courts have found the Rape Shield Law unconstitutional as applied in circumstances where the defendant seeks to introduce evidence for reasons unrelated to impugning the complainant’s character and when the probative value of that evidence outweighs the danger of unfair prejudice. Each case is very fact specific and courts across the country have decided analogous issues differently. For example, an appellate court in Massachusetts has held that a defendant can introduce evidence of a complainant’s prior prostitution convictions in some cases. However, the last Pennsylvania case to address this issue held that the Rape Shield Law barred the introduction of this type of evidence.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court denied the defendant’s appeal. In its decision, the Supreme Court held that the Rape Shield Law typically only allows the introduction of a complainant’s prior sexual encounters to “demonstrate factual premises other than consent” i.e. that someone else committed the crime, the complainant was biased towards the defendant, or that the complainant had a motive to fabricate the charges. Consequently, the Pennsylvania Supreme Court found that “there is little doubt that the proofs offered by [the defendant] were statutorily precluded.” The Pennsylvania Supreme Court held that the evidence the defendant sought to introduce was the very type of evidence that the Rape Shield Law is designed to preclude. Finally, the Pennsylvania Supreme Court said that the lower court’s ruling did nothing to prohibit the defendant from establishing a consent defense. As such, the defendant will not get relief on this claim. However, he was successful on his other claim and his case was remanded back to the Superior Court to see if he is entitled to relief there.

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Zak Goldstein 5/24/21 Zak Goldstein 5/24/21

PA Superior Court: Defense Counsel Ineffective for Failing to Call Impeachment Witness in Rape Case

Criminal Defense Lawyer Zak Goldstein - Philadelphia, PA

The Pennsylvania Superior Court has decided the case of Commonwealth v. Orner, holding that trial counsel was ineffective for failing to call a witness in a rape case. The defense witness would have testified that the complainant admitted to the witness that she fabricated the claims against the defendant and that the sexual acts between them were consensual. This case really is not surprising given the crucial nature of this type of testimony, but it is a reminder that defense attorneys need to be diligent in investigating their cases and presenting witnesses that are helpful to their defense at trial.

Commonwealth v. Orner

The complainant was celebrating New Years with her boyfriend and their neighbor, the defendant. All three were drinking heavily at the complainant’s house. At approximately 9:00 PM, the complainant reported going to bed while the defendant and her boyfriend left the complainant’s residence to continue drinking at the VFW. The defendant was unable to enter the VFW and parted ways with the boyfriend.

The defendant then returned to the complainant’s residence. The defendant was subsequently questioned by the police where he denied any sexual contact had occurred between him and the complainant. He did eventually concede that he touched the complainant’s vagina when he was confronted with a search warrant for a DNA test. The defendant denied raping the complainant and would later testify that he and the complainant had been engaged in a flirtatious affair and had been “messing around” for about a year. Upon reaching the residence, the defendant claimed that he performed oral sex on the complainant for two minutes, but stopped when she asked him to and left. The defendant asserted that all sexual contact between him and the complainant was consensual.

At trial, the complainant denied that she and the defendant were engaged in a romantic affair. She testified that she had been awoken to the defendant performing oral sex on her. She also testified that the defendant penetrated her with his penis and that the defendant fled the scene after she woke up. After the defendant left, the complainant called her boyfriend, and then she called 911. Officers responded about ten minutes later, and her boyfriend was still present at the house. The boyfriend testified that he was in an insane rage after hearing the allegations, but he did concede that he had previously sent a text message claiming that the defendant and the complainant had been engaged in affair two years prior to the allegations.

The defendant was eventually arrested and charged with numerous crimes including rape, involuntary deviate sexual intercourse, sexual assault, and indecent assault. His first two trials ended in mistrials. During the third trial, defense counsel announced that he had failed to serve subpoenas on a married couple who would have been able to corroborate the defendant’s claims about his relationship with the complainant. A deputy sheriff was able to locate the husband, but the deputy could not locate the wife. The husband testified at trial and stated that the complainant had publicly expressed a desire to have sex with the defendant and had told his wife about her relationship with the defendant on the same day as he had supposedly raped the complainant. At the end of the trial, the defendant was found guilty of the aforementioned charges. The trial court sentenced the defendant to six to fourteen years’ incarceration. The defendant then filed a timely appeal. However, he withdrew his appeal.

The defendant filed a Post-Conviction Relief Act (“PCRA”) petition alleging that the trial counsel was ineffective for failing to call the wife to testify at his trial. The Court held an evidentiary hearing where both the trial attorney and the wife were called to testify. At this hearing, the wife testified that the defendant and the complainant had intended to rendezvous at the complainant’s residence while her boyfriend was drinking at the VFW. According to the wife, the defendant and the complainant were engaged in consensual sex, but they were interrupted when the boyfriend returned home. The defendant then fled the scene when the boyfriend arrived. The wife also testified that the complainant had given the defendant a key to her home and that she had confessed to her that she lied about the defendant raping her. Finally, the wife testified that had she been subpoenaed by the trial attorney she would have testified at the defendant’s trial.

The PCRA court granted the defendant’s petition and awarded him a new trial on the basis that trial counsel was ineffective for failing to call the wife at trial. Specifically, the PCRA court concluded that the wife’s testimony was “crucial because it would have greatly supported [the defendant’s] defense” that the complainant consented to the sexual acts in question that night and had a motive to fabricate the rape charges. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the PCRA court’s decision. The Superior Court noted that the Commonwealth’s case against the defendant depended entirely upon the credibility of the complainant. If the wife had testified at trial, her testimony would have directly undermined the complainant’s credibility. The Superior Court ruled that the wife’s testimony was “unquestionably beneficial” to the defendant’s trial defense. Consequently, trial counsel’s failure to subpoena the wife deprived the defendant of crucial support for his proffered defense. Therefore, the defendant’s conviction is vacated, and he will get a new trial.

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