Com. v. Rudolf, G. ( 2021 )

J-A16020-21
2021 PA Super 175COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERMAR RUDOLF :
:
Appellant : No. 1016 MDA 2020
Appeal from the Judgment of Sentence Entered July 7, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005045-2019
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY McCAFFERY, J.: Filed: August 30, 2021
Germar Rudolf (Appellant) appeals from the judgment of sentence
entered in the York County Court of Common Pleas following his jury
convictions of indecent exposure and open lewdness.1 Appellant claims the
evidence was insufficient to support a conviction of indecent exposure, and
that the trial court abused its discretion in admitting evidence of his prior
involvement with law enforcement. We hold, inter alia, that the statutory
definition of indecent exposure requires the actor to be either: (1) in any public
place, regardless of whether others are present; or alternatively (2) “in any
place” where there are persons present “under circumstances in which [the
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3127(a), 5901.
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actor] knows or should know that [their] conduct is likely to offend, affront or
alarm.” See 18 Pa.C.S. § 3127(a). We affirm.
The Commonwealth presented the following evidence at trial. Lower
Windsor Township Police Officer Benjamin Wind was on patrol in a marked
police car on July 2, 2019, around 4:00 a.m. N.T., 7/6/20, at 56-57. He
arrived at the area of Long Level Road and Fishing Creek in Lower Windsor,
an area with a large parking lot, boat launch, park, and children’s playground.
Id. Officer Wind saw Appellant standing in the playground, wearing a bright
yellow sleeveless shirt and no pants. Id. at 61, 63. He could see Appellant’s
genitalia. Id. at 62. Officer Wind did not see anyone other than Appellant.
Id. at 74. He stopped his vehicle and began to move his spotlight toward
Appellant. Id. at 61. Before the officer “actually got the spotlight on him,”
however, Appellant ran behind a tree. Id. at 61-63. Officer Wind “yell[ed]
at” Appellant, stating at trial that it “took a while to get him to come over to
me.” Id. at 65. Appellant sat down at a picnic table and appeared to be
putting on shorts. Id.
Appellant told Officer Wind he was there to work out, but Officer Wind
did not observe any fitness equipment in the playground area. N.T. 6/7/20,
at 65. The officer, however, noticed Appellant had a bottle of lotion or baby
oil. Id. at 66. Officer Wind told Appellant to leave the area, but he witnessed
Appellant about a half an hour later “just up the street,” approximately 600
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yards away. Id. at 66-67. Officer Wind again asked Appellant to leave the
area.
Officer Wind charged Appellant with open lewdness and indecent
exposure. The case proceeded to a jury trial commencing July 6, 2020.
Officer Wind testified as summarized above.
Appellant testified in his defense to the following. He had driven to Long
Level Road around 4:00 a.m. and prepared for a morning workout. N.T.,
7/6/20, at 103. Appellant proceeded down to the playground and was about
to change out of his dress shorts and into exercise shorts. Id. at 105.
Appellant used the playground equipment to work out: “the monkey bars for
pull-ups, . . . sit-ups, and leg raises, and that kind of stuff.” Id. at 103-04.
As he began to change his shorts, he noticed a light coming from a car about
half a mile away. Id. Being in a “comprising situation,” he hid behind a bush,
“waiting for the car to pass.” Id. at 105. However, the car did not leave and
instead entered the parking lot. Id. at 105. Appellant “decided to quickly get
back to the playground . . . and get into his workout shorts.” Id. at 106.
Appellant put his shorts on and turned to go to the river when a light struck
him from the back. Id. at 108. At this point, he was wearing “pretty skimpy”
running shorts. Id. at 110-11. As Appellant continued to walk down to the
river, he heard Officer Wind call to him to “stop hiding naked behind the tree.”
Id. at 113.
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Appellant approached Officer Wind, who asked why he was “running
around naked.” N.T., 7/6/20, at 114. Appellant replied that he was not naked,
and Officer Wind asked for Appellant’s identification. Id. at 114-15. Appellant
returned to his vehicle to retrieve his identification. Id.
On direct examination, Appellant’s counsel asked whether Appellant
used the bottle of baby oil for his workout. N.T., 7/6/20, at 116. Appellant’s
uninterrupted response spanned four pages of testimony and went beyond the
issue of the baby oil. Id. at 117-20. Appellant explained he used the baby
oil to soothe his calluses after a workout, and testified about his ensuing
exchange with Officer Wind as follows. Officer Wind recognized Appellant’s
German accent and asked if he was “the guy we had a case with several years
ago[.]” Id. at 118. Appellant replied that he was, but “that was [a]
completely different case.” Id. Officer Wind then told Appellant he would
charge him with open lewdness and illegal trespassing. Id. Appellant also
claimed that Officer Wind said, “Judge Fishel will not be happy to see you
again. Wasn’t there an order out you’re not allowed to be here?” Id.
Appellant replied that he was not aware of such an order. Id. Officer Wind
instructed Appellant to leave the area and to not come back. Id. at 119.
Following Appellant’s direct examination, the Commonwealth argued at
sidebar that in testifying about this prior incident, Appellant “opened the door”
for the Commonwealth to cross-examine him about it and to call Officer Wind
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to testify about the exchange as well.2 N.T., 7/6/20, at 20-121. When the
trial court asked defense counsel for any opposing argument, he responded
as follows:
[Appellant’s counsel]: . . . I told him not to say anything
about this. I knew what would happen.
THE COURT: Okay. So you’re conceding that’s the law.
[Appellant’s counsel:] I don’t know what to say, Your Honor.
THE COURT: Yeah, I think he opened the door[.]
Id. at 122-23. The court agreed Appellant opened the door and thus
permitted the cross-examination of Appellant and further testimony by Officer
Wind. Id. at 123.
On cross-examination, Appellant stated that in 2014, he worked out in
the same area, then went for a swim in the river naked. N.T., 7/6/20 at 126.
When he “came back,” however, his bicycle and clothes had “disappeared.”
Id. “[A]s he approached the site, two police officers” appeared and directed
him to come out of the river. Id. Appellant did not want to, and asked them
to “get [his] pants from his bicycle and throw it in the river so” he could put
them on. Id.
____________________________________________
2 At sidebar, Commonwealth and defense counsel explained Appellant’s prior
incident resulted in a summary offense charge of disorderly conduct. N.T.,
7/6/20, at 122. However, in Appellant’s ensuing cross-examination, he
merely testified about the underlying acts, and did not mention any formal
charges.
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The Commonwealth recalled Officer Wind as a witness in rebuttal, and
he testified he remembered this exchange with Appellant on July 2, 2019,
about the prior incident. N.T., 7/6/20, at 128. Officer Wind further testified
he was aware of the previous incident involving indecent exposure, and that
in preparing the charges for this case, he spoke with the officer who filed
charges in the prior incident and read the report. Id. at 129.
Finally, we note Appellant also called George Morrison, a private
detective, as a witness. N.T., 7/6/20, at 87. Morrison photographed the
various views of the playground area around 4:00 in the morning, testifying
that it was incredibly dark and difficult to capture anything on film. Id. at 89-
99.
On July 7, 2020, the jury returned a verdict of guilty for both charges of
open lewdness and indecent exposure. The case proceeded immediately to
sentencing, and the trial court imposed 12 months’ probation for the charge
of open lewdness and a concurrent term of 24 months’ probation for indecent
exposure. N.T., 7/7/20, at 177. Appellant did not file any post-sentence
motions.
On July 20, 2020, Appellant’s trial counsel filed a motion to withdraw.
On August 7th, the trial court granted leave to withdraw.
Meanwhile, on August 4, 2020, Appellant filed a pro se notice of appeal.
On August 7th, the trial court directed Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. On August 12th, current
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counsel, Daniel Bush, Esquire, entered his appearance as Appellant’s counsel
of record. The following day, Appellant filed a motion for an extension of time
to file a Rule 1925(b) statement, which was granted. Appellant then filed a
timely Rule 1925(b) statement.
On appeal, Appellant raises the following issues for our review:
A. Whether the evidence was sufficient to support the conviction
for indecent exposure, where the evidence presented by the
Commonwealth did not establish any act done by Appellant under
circumstances in which another person was likely to be offended
or alarmed, and where the only person who observed Appellant
was the citing police officer?
B. Whether the trial court abused its discretion by allowing the
Commonwealth to present evidence regarding Appellant’s prior
involvement with law enforcement in a prior circumstance, after
the trial court erroneously determined the Appellant had “opened
the door” to allowing such cross-examination?
Appellant’s Brief at 5.
In his first issue, Appellant claims the evidence was insufficient to
support a conviction of indecent exposure. We first set forth the Pennsylvania
Crimes Code statutory definition of indecent exposure:
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.
18 Pa.C.S. § 3127(a).
On appeal, Appellant now claims that the Commonwealth could not meet
its burden of proof because it did not establish that other persons were present
or that he knew or should have known his conduct was “likely to offend, affront
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or alarm.” Appellant’s Brief at 16, quoting 18 Pa.C.S § 3127(a). Appellant
maintains that the area where he was changing was “incredibly dark” with
“very little ambient light.” Appellant’s Brief at 16. Appellant further avers the
only person who observed him was Officer Wind. Id. Appellant thus argues
that “[a] reasonable person,” changing their clothes at 4:00 a.m. in a dark
area where no other persons were present, would have “no reason to believe
that such conduct would be likely to offend, affront, or alarm anyone.” Id. at
17. No relief is due.
Our standard for a review of the sufficiency of evidence is well-settled:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (citation
omitted).
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We further consider the following principles underlying statutory
interpretation:
The purpose of statutory interpretation is to ascertain the General
Assembly’s intent and to give it effect. 1 Pa.C.S. § 1921(a). In
discerning that intent, courts first look to the language of the
statute itself. If the language of the statute clearly and
unambiguously sets forth the legislative intent, it is the duty of
the court to apply that intent and not look beyond the statutory
language to ascertain its meaning. See 1 Pa.C.S. § 1921(b) . . . .
Courts may apply the rules of statutory construction only when
the statutory language is not explicit or is ambiguous. 1 Pa.C.S.
§ 1921(c).
Frempong v. Richardson, 209 A.3d 1001, 1009 (Pa. Super. 2019). “Our
state appellate courts have consistently held that when ‘applying [the] normal
rules of statutory construction, [the] presence of disjunctive word ‘or’ in [a]
statute indicates that elements of statute are met when any particular element
is satisfied, regardless of whether other elements are also met.’” Id. at 1010(citation omitted).
As stated above, indecent exposure is defined in our Crimes Code as
follows:
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.
18 Pa.C.S. § 3127(a) (emphasis added).
We interpret the plain meaning of the statute, including the disjunctive
term “or,” to require the act to occur: (1) “in any public place” — regardless
of whether other persons are present; or (2) “in any place where there are
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[others] present . . . under circumstances in which [the actor] knows or should
know that this conduct is likely to offend, affront or alarm.” See 18 Pa.C.S.
§ 3127(a); Frempong, 209 A.3d at 1009. In other words, once the
Commonwealth has shown the act was committed in a public place, then it is
not further required to show: (1) there were other persons present; or (2)
that the actor actor knew or should have known their conduct was likely to
offend, affront, or alarm. See id.Here, it was not disputed that Appellant was in a public playground,
which was next to or near a large parking lot, boat launch, and park. See
N.T., 7/6/20, at 56-57. Having satisfied the element of a “public place,” the
Commonwealth was not further required to show, as Appellant argues on
appeal, that he knew or should have known his conduct was likely to offend,
affront, or alarm.3 See Appellant’s Brief at 15. For the foregoing reasons, we
do not disturb Appellant’s conviction of indecent exposure.
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3 On appeal, Appellant advances this interpretation of the indecent exposure
statute — that an actor must expose their genitals:
(1) “in any public place . . . under circumstances in which he or
she knows or should know that this conduct is likely to offend,
affront or alarm”; or (2) “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.”
Appellant’s Brief at 15. In other words, Appellant would attach the phrase,
“under circumstances in which he or she knows or should know that this
conduct is likely to offend, affront or alarm,” to both the element of “any public
place” and “any place where there are present other persons.”
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Furthermore, even if Appellant were to challenge the sufficiency of
evidence under the second prong — that the conduct was committed “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” — no relief would be due. See 18 Pa.C.S. § 3127(a). Appellant
acknowledges that another person was present — “the citing police officer,”
Officer Wind. Appellant’s Brief at 15. Appellant cites no authority, nor even
presents any explanation, why Officer Wind cannot be a “person[ ]” present
under the indecent exposure statute. See id. Instead, we note, “it is
sufficient for the Commonwealth to show that Appellant knew or should have
known that his conduct is likely to cause affront or alarm.” Commonwealth
v. Tiffany, 926 A.2d 503, 511 (Pa. Super. 2007).
Here, the trial court cited Appellant’s own testimony “that he ran when
Officer Wind approached because he did not ‘like being exposed in that intense
light,’” as well as Officer Wind’s testimony that Appellant began to run even
before Officer Wind put the spotlight on him. Trial Ct. Op., 10/13/20, at 8.
The court also considered the fact that Appellant “stood next to a public
children’s playground with [a] clear unobstructed view from the road,” and
concluded “there was ample evidence for the jury to conclude [Appellant]
knew or should have known that his conduct was likely to cause affront or
alarm.” Id. at 10. We agree, after viewing all the evidence in the light most
favorable to the Commonwealth, that the evidence supports a finding that
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Appellant knew or should have known his actions would likely cause affront or
alarm. See 18 Pa.C.S. § 3127(a); Tiffany, 926 A.2d at 511.
In his second issue, Appellant claims that the trial court abused its
discretion in allowing the Commonwealth to present evidence of his prior
involvement with law enforcement. Appellant challenges the trial court’s
finding that he had “opened the door.” Appellant’s Brief at 21. Appellant
maintains he “created no false impression that needed to be refuted,” insisting
he “merely recounted” Officer Wind’s questions and his own “truthful and
accurate” answers to these questions. Id. Furthermore, Appellant avers the
trial court abused its discretion in allowing the rebuttal testimony from Officer
Wind, as it “merely act[ed] as proof of bad character” and thus resulted in
“actual and severe prejudice.” Id. at 24. Appellant concludes the
Commonwealth “did not demonstrate that the prior bad acts evidence served
a non-character purpose,” the prior act “had nothing to do with [his] conduct
on July 2, 2019,” and the “prejudicial effect far outweighed its probative
value.” Id.
We note the Commonwealth argues that Appellant conceded this
evidentiary claim at trial, and as a result, the claim is waived.
Commonwealth’s Brief at 16. The Commonwealth notes that defense counsel
did not object to its request to recall Officer Wind to testify, and in fact
conceded that Appellant had opened the door. Id. at 16-17, citing N.T.,
7/6/20, at 122-23 (“That’s why I told him not to say anything about this. I
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knew what would happen.”). In a reply brief, Appellant denies he conceded
the evidentiary challenge, and argues both he and the Commonwealth “jointly
requested to approach for a sidebar.” Appellant’s Reply Brief at 7. However,
we note the notes of testimony indicate the Commonwealth alone requested
a sidebar. See N.T., 7/6/20, at 120 (Commonwealth stating, “Your Honor,
I’m not sure how you want to do this. But may we approach?”).
It is settled that an appellant’s failure to raise a contemporaneous
objection to evidence at trial waives that claim on appeal. Commonwealth.
v. Ramos, 231 A.3d 955, 957 (Pa. Super. 2020). Our review of the trial notes
of testimony supports the Commonwealth’s suggestion that Appellant has
waived this issue. Appellant volunteered the information about the prior
incident during his own direct examination, and defense counsel did not
redirect or terminate Appellant’s narrative testimony. See N.T., 7/6/20, at
118. When asked for any argument against the Commonwealth’s contention
that Appellant opened the door, defense counsel instead appeared to agree:
“That’s why I told him not to say anything about this. I knew what would
happen.” Id. at 122-23. Furthermore, when asked specifically whether he
conceded the Commonwealth’s evidentiary argument, counsel replied, “I don’t
know what to say, Your Honor.” Id. at 123. While we agree with Appellant
this was a “non-committal response,” which indicated “that Defense Counsel
believed he was in a difficult position,” see Appellant’s Reply Brief at 8, when
reviewed in the context of all the foregoing, we conclude Appellant did not
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affirmatively object to the Commonwealth’s argument nor, importantly,
present any legal discussion why the evidence should be precluded. See N.T.,
7/6/20, at 122-23. Accordingly, we agree with the Commonwealth this
evidentiary issue is waived for appeal. See Ramos, 231 A.3d at 957.
As we conclude no relief is due, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/30/2021
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