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.

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Zak T. Goldstein, Esquire - Criminal Defense Lawyer

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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Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 5/19/22 Zak Goldstein 5/19/22

PA Superior Court: Internet Search for Criminal Defense Lawyer May Not Be Used Against You at Trial

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lang, holding that the trial court properly granted the defendant a new trial where the previous judge, who had been removed from the bench, allowed the Commonwealth to admit evidence that the defendant searched for a criminal defense attorney online before he was charged with any crimes. The result here seems obvious based on the constitutional right to a lawyer in both the Pennsylvania and United States Constitutions, but somehow the original judge had allowed this internet search into evidence.

Commonwealth v. Lang

The defendant, a priest, allegedly sexually abused the complainant when he was a minor at a church in Munhall, Pennsylvania. Specifically, the complainant alleged that the defendant took a naked picture of him and threatened to show the complainant’s friends this picture. The defendant also forced the complainant to masturbate him. The complainant did not report the abuse until 17 years after the alleged abuse occurred. The defendant was subsequently arrested and charged with attempted aggravated indecent assault, three counts of indecent assault, indecent exposure, corruption of minors, sexual abuse of children, and unlawful contact with a minor.

The defendant elected to proceed by way of a bench trial. At the trial, the Commonwealth called the complainant to the stand, and he testified to the above allegations. Additionally, the Commonwealth also admitted into evidence a Pennsylvania Attorney General report that disclosed the results of an investigation into clergy abuse in the Commonwealth of Pennsylvania. This report named several priests who were accused of misconduct, but the defendant was not one of them. However, the Commonwealth also introduced evidence of the defendant’s internet searches where he was searching for “top Pittsburgh criminal attorneys” one day after the release of this report. The defendant also testified at his trial. He specifically denied ever sexually abusing the complainant and claimed he did not even know him. The trial court was not persuaded by the defendant’s testimony and found him guilty of one count of unlawful contact with a minor, indecent exposure, corruption of minors, and three counts of indecent assault.

After his trial, but before his sentencing, the defendant’s case was assigned to a new judge. The defendant was sentenced to a term of 9 months’ to 2 years’ incarceration, followed by 5 years’ probation. The defendant filed a timely post-sentence motion arguing that he was entitled to a new trial based on the erroneous admission of his internet searches under the theory of consciousness of guilt. The post-trial court found that the defendant’s constitutional right to due process was violated by the introduction of the internet search evidence “being presented and being material to the outcome of the case” and that the prejudicial impact of that evidence “outweighed any probative value.” The post-trial then granted the defendant a new trial. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the post-trial court’s order granting the defendant a new trial. The issue before the Superior Court was whether a prosecutor could use a defendant’s search of an attorney in its criminal case against said defendant. Prior to this decision, Pennsylvania Appellate courts had never addressed this issue, and this was an issue of first impression. In making its decision, the Superior Court reviewed prior decisions that were tangentially related to this issue in Pennsylvania and in other jurisdictions. Specifically, the Superior Court analyzed cases where the prosecutor made comments about a defendant’s acquisition of counsel prior to being charged with a crime. In its analysis, the Superior Court found that that appellate courts would overturn convictions when prosecutors would make comments about a defendant’s acquisition of counsel prior to being arrested.

The Superior Court found these decisions persuasive and held that when a prosecutor comments on a defendant’s search for an attorney before charges are filed, the commentary implicates the Sixth Amendment right to counsel. As such, the Superior Court held that the post-trial court properly determined the admission of the defendant’s internet searches for criminal defense attorneys, before he was charged or implicated in any offenses, violated his constitutional right to due process and a fair trial. Further, the introduction of this evidence was not harmless and was prejudicial to the defendant. As such, the defendant will get a new trial and the Commonwealth will not be able to use his internet searches for an attorney in its case against him.

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Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 5/12/22 Zak Goldstein 5/12/22

New Trial Ordered by PA Superior Court for Client Convicted of Sexual Assault

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

Criminal defense lawyer Zak T. Goldstein, Esquire, recently won a new trial for a client who had been convicted of involuntary deviate sexual intercourse in the Philadelphia Court of Common Pleas. In the case of Commonwealth v. G.W., the defendant was convicted following a jury trial on charges of allegedly molesting a girlfriend’s young daughter. The jury found him guilty, and the trial court sentenced him to a state prison sentence of thirty - sixty years’ incarceration. This would have been a life sentence for G.W.

Attorney Goldstein represented G.W. on appeal and was able to successfully convince the Pennsylvania Superior Court to overturn the conviction. At trial, the complainant had made a number of inconsistent statements about the details relating to the allegations - each time she was interviewed by the authorities, she had told markedly different stories about the illegal acts involved, where they allegedly took place, whether other people were home, and whether she had told anyone. It was also very clear that there were significant reasons for her to potentially fabricate the story. The jury, however, convicted in part due to highly improper testimony from one of the Commonwealth’s witnesses.

As a general rule, when a juvenile complainant makes an allegation that they have been the victim of some kind of crime in Philadelphia, the complainant is typically interviewed by forensic interviewers at the Philadelphia Children’s Alliance. The interviewers have some level of training on interviewing children regarding sensitive allegations, and the videos are recorded so that they can be reviewed by law enforcement and potentially used at trial. In this case, the Commonwealth called a supervisor from the Philadelphia Children’s Alliance to testify regarding the process that that agency uses for investigating these types of cases and conducting the interviews. The supervisor then confirmed that the complainant had undergone an interview and that the agency had recorded it. The Commonwealth then played the video-taped interview for the jury.

On cross-examination, the criminal defense attorney questioned the supervisor on whether the complainant had made a number of inconsistent statements both during the interview as well as to police officers and other witnesses. The supervisor confirmed that she had. On re-direct, without qualifying the supervisor as an expert witness, the Commonwealth then asked the supervisor if it was normal for children to have trouble giving consistent statements. Obviously taking the prosecutor’s hint, the supervisor immediately testified that this type of thing happens all of the time, that children have trouble remembering such traumatic events, and that as they become more comfortable, the stories often evolve. In other words, the supervisor suggested that the jurors should not concern themselves with the fact that the statements had changed repeatedly because such a thing is normal and perfectly consistently with a child complainant who is telling the truth.

Fortunately, the trial attorney objected to this improper expert testimony. The PCA supervisor had not been qualified as an expert witness to testify about the typical responses of alleged sexual assault victims, and the defense had not been provided with any notice that the Commonwealth would try to offer this type of testimony to explain away the wildly inconsistent statements which the complainant had made. The trial judge allowed the introduction of the testimony over the defense’s objection. Having been re-assured that it did not need to worry about the inconsistent statements, the jury convicted.

G.W. appealed. Attorney Goldstein argued to the Superior Court that the improper admission of this unqualified expert testimony had unfairly prejudiced the jurors against G.W. and that G.W. should receive a new trial. This testimony was not supported by any research, the supervisors qualifications were not provided to the defense, and the defense had not been given any notice that it would need to prepare to try to rebut this type of testimony. Had the defense been given notice, it could have considered retaining its own experts, doing additional research, and the defense could have prepared to cross examine the supervisor to show that this type of conclusion is not reliable. The Superior Court agreed. The Court recognized that testimony regarding the typical response of a sexual assault victim is clearly expert testimony and that such testimony is not necessarily admissible. Even in cases where this type of testimony may be admissible, the defense is entitled to notice and expert reports so that the defense can properly prepare for trial instead of being ambushed with unfair, unproven expert testimony. Accordingly, the Superior Court ordered that G.W. receive a new trial. The thirty to sixty year sentence has been vacated as a result of Attorney Goldstein’s successful arguments on appeal.

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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 new trials on appeal and in PCRA litigation for clients charged with crimes as serious as sexual assault and first degree murder. Pennsylvania criminal appeals are a complicated and highly technical area of the law, and just because a lawyer has defended clients at trial does not mean that they have the level of expertise and knowledge necessary to making winning arguments in the appellate courts. Our lawyers have that critical skill and experience. We 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.