Com. v. Benson, W., Jr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE FRANKLIN BENSON, JR. :
:
Appellant : No. 468 MDA 2022
Appeal from the Judgment of Sentence Entered October 11, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000829-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 09, 2023
Appellant, Wayne Franklin Benson, Jr., appeals from the judgment of
sentence of 16 to 32 months of incarceration and a consecutive three-year
period of probation imposed following his convictions for a series of crimes all
arising out of his surreptitious photographing of his underage stepdaughter
while she used the bathroom. After careful review, we discharge Appellant’s
conviction for obscenity, affirm all other challenged convictions, and remand
for resentencing as our decision disrupts the sentencing scheme.
The victim, G.B., lived with her mother, brother, and Appellant, who was
her stepfather. Appellant and G.B.’s mother married in 2008, when G.B. was
approximately three years old. At some unspecified time on the evening of
June 23, 2020, G.B. went to use the bathroom located across from her
bedroom. G.B., who was then 14 years old, was wearing pink shorts and a
gray top. She pulled her pants and underwear down, partially exposing her
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vagina. While using the toilet, G.B. saw flashes of light coming from the linen
closet. G.B. saw that the closet door was open and discovered a phone, which
she recognized as Appellant’s. G.B. opened the phone’s camera application
and saw several photographs of her using the toilet. She then deleted the
pictures. As G.B. offered the only evidence regarding the photographs, we
quote her description of the events:
Q. Okay, do you recall what you were wearing?
A. Yes. I was wearing pajamas; pink shorts and a gray top.
Q. So when you went into the bathroom that night, did you have
to pull down your pants?
A. Yes.
Q. Did you remove anything else?
A. I removed my underwear.
Q. Okay, and then you proceeded to use the toilet?
A. Yes.
Q. Okay. When you removed your underwear and your pants,
what part of your body, if at all, was exposed?
A. My shirt covered most of it, but some of my vagina was
showing.
Q. Okay. When you went to the bathroom[,] did you notice
anything in the – across from the toilet?
A. I noticed flashing.
***
Q. And when you picked up the phone did you see anything on the
phone?
A. Yes.
Q. What did you see?
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A. I saw about nine pictures of me going to the bathroom.
Q. Okay. What did you do at that point?
A. I went back to my room.
Q. Did you do anything to the phone before you went back to your
room?
A. Yes, I deleted the pictures.
N.T., 6/23/21, at 31-33.
G.B. immediately informed her maternal grandparents, who visited the
home shortly thereafter. Appellant acquiesced to G.B.’s grandfather’s demand
that Appellant turn over his cellphone. The phone was subsequently turned
over to the Pennsylvania State Police.
Corporal Christopher Hill extracted the phone’s data and performed a
forensic search but could not recover the images deleted by G.B. Corporal Hill
determined that Appellant’s phone activated the camera application seventeen
times on June 23, 2020, with the last occurring at 10:00 p.m. Corporal Hill
recovered an image taken on the day of the incident, showing Appellant touch
his watch. Corporal Hill testified that an Apple iWatch can access the phone’s
camera application, and the image’s metadata showed that the image was
taken via Appellant’s iWatch.
The Commonwealth also called Corporal Tyler Morse, who interviewed
Appellant while he and another trooper transported Appellant from a mental
health facility to a Pennsylvania State Police barracks.1 While riding in the
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1Appellant had been involuntary committed due to admissions that he had
attempted suicide.
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backseat with Appellant, Corporal Morse issued Miranda2 warnings, and
Appellant agreed to speak. Appellant admitted that he placed his phone in
the linen closet and used his iWatch to take pictures of G.B. while she used
the bathroom. He stated that “this was the only time he ever tried to
photograph the victim when she did not have clothing on.” N.T., 6/23/21, at
81. The police vehicle recorded the conversation and an audio recording of
Appellant’s statements was played to the jury.
The Commonwealth charged Appellant with six total counts, one of
which was withdrawn. The jury convicted Appellant of the remaining five
counts.3
On October 11, 2021, the trial court sentenced Appellant to an
aggregate term of 16 to 32 months of incarceration followed by three years
of probation. Appellant filed a timely post-sentence motion on October 20,
2021. The trial court did not issue an order during the 120-day period, which
expired on February 17, 2022. Pa.R.Crim.P. 720(B)(3)(a). Thus, the motion
should have been denied by operation of law on that date, as the docket does
not reflect that the court issued an order granting the permitted one-time
extension of thirty days. Pa.R.Crim.P. 720(B)(3)(b-c). Appellant filed a
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 Count one: 18 Pa.C.S. § 6312(b)(2) (photographing a minor performing a
sexual act); count two: 18 Pa.C.S. § 6312(d) (possession of child
pornography); count three: 18 Pa.C.S. § 7512 (criminal use of communication
facility); count four: 18 Pa.C.S. § 5903(a)(3)(ii) (creating obscene material);
count five: 18 Pa.C.S. § 7507.1(a)(1) (invasion of privacy).
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protective notice of appeal on March 17, 2021, and on April 1, 2022, the trial
judge signed an order purporting to deny the post-sentence motions.
Appellant thereafter filed a notice of appeal from that order.4
Appellant filed a concise statement of matters complained of on appeal,
and the trial court issued its opinion in response. The Commonwealth filed a
letter stating it would not file a brief and chose to rest on the trial court
opinion. Appellant raises the following issues for our review.
I. Whether the evidence was insufficient as a matter of law to
sustain [Appellant]’s two convictions for sexual abuse of children
where the child was not engaged in any conduct constituting a
prohibited sexual act or simulation where the evidence revealed
only that the child was using the toilet and where no actual images
were ever introduced into evidence?
II. Whether the evidence was insufficient as a matter of law to
establish that [Appellant] used a communication facility in the
commission of a felony, since the evidence in those felony counts
(counts [one] and [two]) were insufficient to support those
convictions?
III. Whether the evidence was insufficient as a matter of law to
demonstrate beyond a reasonable doubt that the alleged
photographs constituted obscene material as defined by the
statute where the evidence revealed only that the child was briefly
using the toilet and there was no evidence that her genitals were
ever visible as she was seated and no actual images were
introduced at trial?
IV. Whether [Appellant] was denied his due process rights to a
fair trial under both the United States and Pennsylvania
constitutions where the Commonwealth improperly commented
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4We have deemed the failure to enter an order denying the post-sentence
motion by operation of law as an administrative breakdown that excuses the
untimely filing of the notice of appeal. See Commonwealth v. Patterson,
940 A.2d 493, 499 (Pa. Super. 2007). We therefore decline to quash the
appeal.
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multiple times on his right to remain silent after Miranda
warnings were provided?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
The first issue challenges the sufficiency of the evidence to convict
Appellant of counts one and two, which were graded as felonies. The second
issue turns on the first, as count three criminalizes the use of a communication
facility, which is defined to include a phone, to commit another felony. 75
Pa.C.S. § 7512. Thus, Appellant’s second issue fails if the evidence was
sufficient at counts one and/or two. See Appellant’s Brief at 20 (“Here, the
basis for this … charge, as set forth by the trial court in its instructions, was
the commission of the felony crimes in [c]ounts [one] and [two.]”).
Our standard of review is well-settled. Whether the evidence was
sufficient to sustain the charge presents a question of law, and our standard
of review is de novo, and our scope of review is plenary. Commonwealth v.
Walls, 144 A.3d 926 (Pa. Super. 2016). We must determine:
[W]hether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict-winner, [is] sufficient to establish all
elements of the offense beyond a reasonable doubt. We may not
weigh the evidence or substitute our judgment for that of the fact-
finder. Additionally, the evidence at trial need not preclude every
possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant’s guilt 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. When
evaluating the credibility and weight of the evidence, the fact-
finder is free to believe all, part or none of the evidence. For
purposes of our review under these principles, we must review the
entire record and consider all of the evidence introduced.
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Commonwealth v. McCoy, 199 A.3d 411, 414–15 (Pa. Super. 2018)
(quoting Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.
2014)).
Appellant asserts that the Commonwealth failed to present sufficient
evidence concerning how the photographs depicted G.B.’s genitalia, thereby
precluding his convictions for violating the following two separate subsections
of Section 6312:
(b) Photographing, videotaping, depicting on computer or
filming sexual acts.--
....
(2) Any person who knowingly photographs, videotapes,
depicts on computer or films a child under the age of 18
years engaging in a prohibited sexual act or in the
simulation of such an act commits an offense.
....
(d) Child pornography.--Any person who intentionally views or
knowingly possesses or controls any book, magazine, pamphlet,
slide, photograph, film, videotape, computer depiction or other
material depicting a child under the age of 18 years engaging in a
prohibited sexual act or in the simulation of such act commits
an offense.
18 Pa.C.S. § 6312(b)(2), (d) (emphasis added).
Thus, the sole element at issue here is whether the Commonwealth
presented sufficient evidence to satisfy the definition of “prohibited sexual
act.” That phrase is defined by subsection (g) as follows: “Sexual intercourse
as defined in section 3101 (relating to definitions), masturbation, sadism,
masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or
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nudity if such nudity is depicted for the purpose of sexual stimulation or
gratification of any person who might view such depiction.” 18 Pa.C.S. §
6312(g).
The first seven possibilities (sexual intercourse as separately defined,
masturbation, sadism, masochism, bestiality, fellatio, or cunnilingus) are
clearly not at issue. Appellant limits his attack to the language “lewd
exhibition of the genitals.” Appellant submits that “mere child nudity is not
enough – because the phrase ‘exhibition of the genitals’ is qualified by the
word ‘lewd.’” Appellant’s Brief at 14. Thus, the Commonwealth was required
to show that the pictures captured a lewd exhibition of G.B.’s genitals in order
to sustain its convictions. Appellant points out that the evidence on what the
photographs depicted was limited to G.B.’s testimony that some of her vagina
was showing. Relatedly, because G.B. deleted the photographs, it is
impossible to review what they depicted. Id. Based on G.B.’s testimony, the
pictures, at most, “showed her in the act of ‘going to the bathroom.’ However,
this much is unavoidable: the fact that G.B. may have even slightly appeared
nude and her pubic area was briefly visible at times does not mean that the
photos depicted her engaging in a prohibited sexual act[.]” Id. at 14-15.
Appellant’s argument ignores the separate language concerning nudity.
The natural interpretation of “or” is that it serves to offset each separate
prohibited sexual act. See generally In re Paulmier, 937 A.2d 364, 373
(Pa. 2007) (“The word ‘or’ is defined as a conjunction ‘used to connect words,
phrases, or clauses representing alternatives. In other words, ‘or’ is
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disjunctive. It means one or the other of two or more alternatives.”) (citation
omitted). Here, the disjunctive “or” offsets “lewd exhibition of the genitals”
from “nudity if such nudity is depicted for the purpose of sexual stimulation
or gratification of any person who might view such depiction.” Thus, the
Commonwealth presented sufficient evidence to convict Appellant of counts
one, two, and three if the material qualified as either a “lewd exhibition of the
genitals” or nudity as defined. For the following reasons, we decline to
conclude that the Commonwealth presented sufficient evidence that the
photographs constituted a lewd exhibition of G.B.’s genitals for purposes of
this statute. We thus credit that aspect of Appellant’s argument. However,
as our review is de novo, we find that the Commonwealth presented sufficient
evidence that the depictions satisfied the nudity definition and therefore affirm
the convictions at counts one, two, and three.
We briefly discuss some broad principles concerning the criminalization
of child pornography, as these concepts are relevant to Appellant’s conviction
for obscenity. As a general matter, depictions of pornography are protected
speech; it is only when the material is deemed “obscene” that a State may
criminalize it.5 “We have long held that obscene speech—sexually explicit
material that violates fundamental notions of decency—is not protected by the
First Amendment. But to protect explicit material that has social value, we
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5 We speak here, of course, only of statutes criminalizing pornography; the
surreptitious recording or photographing of a person using the bathroom is
also criminalized by other statutes, such as Appellant’s unchallenged
conviction for invasion of privacy.
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have limited the scope of the obscenity exception, and have overturned
convictions for the distribution of sexually graphic but nonobscene material.
See Miller v. California, 413 U.S. 15, 23–24 (1973).” United States v.
Williams, 553 U.S. 285, 288 (2008) (citation omitted). The Miller Court
defined obscene material as “works which, taken as a whole, appeal to the
prurient interest in sex, which portray sexual conduct in a patently offensive
way, and which, taken as a whole, do not have serious literary, artistic,
political, or scientific value.” Miller, 413 U.S. at 24. Different First
Amendment principles apply to sexual material where children are concerned.
In New York v. Ferber, 458 U.S. 747 (1982), the United States Supreme
Court held that material showing children engaged in sexual conduct could be
criminalized even if that material was not obscene under the Miller standards.
“As a general rule, pornography can be banned only if obscene, but under
Ferber, pornography showing minors can be proscribed whether or not the
images are obscene under the definition set forth in Miller[.]” Ashcroft v.
Free Speech Coal., 535 U.S. 234, 240 (2002).
It warrants mentioning that Ferber stated that there are “limits on the
category of child pornography which, like obscenity, is unprotected by the First
Amendment.” Ferber, 458 U.S. at 764. A statute must adequately define
the conduct to be prohibited, and “[t]he category of ‘sexual conduct’
proscribed must also be suitably limited and described.” Id. The specific law
at issue in Ferber was upheld because it
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incorporates a definition of sexual conduct that comports with the
above-stated principles. The forbidden acts to be depicted are
listed with sufficient precision and represent the kind of conduct
that, if it were the theme of a work, could render it legally
obscene: “actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sado-masochistic
abuse, or lewd exhibition of the genitals.” The term “lewd
exhibition of the genitals” is not unknown in this area and, indeed,
was given in Miller as an example of a permissible regulation.
Ferber, 458 U.S. at 765 (citation omitted).
The Section 6312(g) definition of prohibited sexual conduct largely
tracks this approved list of “forbidden acts” that may be criminalized. And
most of the items specified within Section 6312(g) are self-evidently sexual
conduct that could be legally obscene. For example, fellatio or cunnilingus are
straightforwardly sexual and require no explication. Determining what
qualifies as a “lewd exhibition of the genitals,” in contrast, is more difficult.
See, e.g., United States v. Villard, 885 F.2d 117, 121 (3d Cir. 1989)
(“Congress did not expressly define ‘lascivious exhibition of the genitals or
pubic area,’ one of the five types of prohibited ‘sexually explicit conduct’ listed
in 18 U.S.C. § 2256(2). Whatever the exact parameters of ‘lascivious
exhibition,’ we find it less readily discernable than the other, more concrete
types of sexually explicit conduct listed in [S]ection 2256(2).”).6 Many courts
have adopted the multi-factor test set forth by United States v. Dost, 636
F. Supp. 828 (S.D. Cal. 1986), a case involving a child pornography
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6 For our purposes, the two terms are synonymous. “A subsequent
amendment, the Child Protection Act of 1984, replaced ‘lewd’ with the word
‘lascivious,’ but the two words have nearly identical meanings.” United
States v. Knox, 32 F.3d 733, 748 (3d Cir. 1994).
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prosecution. Recognizing that “Congress intended that the standard be lower
than that for obscenity, in line with the Ferber holding,” the Dost Court
established a non-exclusive multi-factor test. Id. at 832.
Here, we agree that the lack of detail regarding what the photographs
showed makes it difficult, if not impossible, to determine whether they were
lewd or lascivious, even putting aside the lack of a precedential definition of
the phrase. “[W]hat constitutes a forbidden lascivious exhibition ‘is not
concrete,’ and for this reason it is necessary to determine the potentially
lascivious nature ‘with respect to the actual depictions themselves.’” United
States v. Holmes, 814 F.3d 1246, 1251 (11th Cir. 2016). There, the
defendant “was charged with surreptitiously videotaping his teenage
stepdaughter performing her daily bathroom routine over a period of
approximately five months, and being in possession of videos and depictions
of her in the nude.” Id. at 1247. The Holmes Court determined that the
material constituted a lascivious exhibition of the genitals based on the
defendant’s actions in creating the pictures. The panel acknowledged that the
depictions might be “otherwise innocent” if made by the child, as its
precedents have “defined ‘lascivious exhibition’ as one that ‘excites sexual
desires or is salacious.’” Id. at 1251 (citation omitted). However, “a
lascivious exhibition may be created by an individual who surreptitiously
videos or photographs a minor and later captures or edits a depiction, even
when the original depiction is one of an innocent child acting innocently.” Id.
at 1252. The defendant placed cameras “in the bathroom where his
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stepdaughter was most likely to be videoed while nude,” and he “extensive[ly]
focus[ed] on videoing and capturing images of her pubic area,” and “his
editing of the videos at issue … was sufficient to create a lascivious exhibition
of the genitals or pubic area.” Id.
We are unprepared to say whether the depiction of G.B. using the toilet
would qualify as a lewd exhibition. First, the parties have not directed us to
any Pennsylvania case addressing the definition of “lewd” in this statutory
context, and we have not uncovered any. Second, even if we were inclined
to ascertain what the phrase “lewd exhibition of the genitals” means, Appellant
is surely correct that a “lewd exhibition” must mean more than a nude
depiction. Otherwise, the “nudity” addition is superfluous. The “General
Assembly intends the entire statute to be effective and certain.” 1 Pa.C.S. §
1922(2). Accepting arguendo that a multi-factor test is appropriate, we
simply have nothing to assess as the photographs were deleted.
Our conclusion in this regard does not vindicate Appellant, however, as
he ignores the nudity language.7 The definition of “prohibited sexual act”
includes “nudity if such nudity is depicted for the purpose of sexual stimulation
or gratification of any person who might view such depiction.” See 18 Pa.C.S.
§ 6312(g). In Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. 1998),
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7 We note that the trial court instructed the jury that, for purposes of this
case, “a prohibited sexual act means lewd exhibition of the genitals and/or
nudity, if the nudity is depicted for the purpose of ... sexual stimulation or
gratification of any person who might view” the material. N.T., 6/23/21, at
155.
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we explained that, when the theory of the case involves the production of the
material, it is proper to focus on the intent of the producer:
It is the intent of the photographer with which we are
concerned in this case. The standard employed is a
subjective one, pertaining to the actor’s state of mind and
is therefore uniquely within the control of the potential
offender. Such a standard provides an intrinsic element of
notice, as the actor is also in a uniquely suitable position to
know whether his purpose will coincide with that proscribed
by the statute.
[Missouri v. Helgoth, 691 S.W.2d 281, 283 (Mo. 1985)].
Persuaded by Helgoth’s reasoning, we find that the videotaping
of nude children for the purpose of one’s own sexual gratification
or stimulation is a prohibited act under 18 Pa.C.S.[] § 6312(a)
(“prohibited sexual act” means “nudity if such nudity is depicted
for the purpose of sexual stimulation or gratification of any person
who might view such depiction”).
Id. at 1256. Cf. Holmes, supra (adopting same intent test with respect to
lewd exhibition under federal child pornography statute).
As in Savich, this case involves Appellant as the creator of the material,
and Appellant does not argue that the Commonwealth failed to present
sufficient evidence to conclude that his intent in photographing G.B. was for
his own sexual gratification. Along these same lines, we add that our Supreme
Court in Commonwealth v. Davidson, 938 A.2d 198, 213 (Pa. 2007),
examined a void-for-vagueness challenge to Section 6312 and its prohibition
of “nudity” in the context of possessing the materials. The Court explained
that when it comes to nude images, “[a]ll that the Commonwealth must prove
in a situation where a defendant is found in possession of nude images of
children not engaged in any other prohibited sexual act under Section
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6312(a), is that the nudity in the image is depicted for sexual stimulation or
gratification.” Id. Appellant concedes that the depictions constituted some
level of nudity, and he does not argue any other element of the crimes. We
therefore determine that there was sufficient evidence to sustain the
convictions at counts one and two on these grounds. Consequently,
Appellant’s associated challenge to count three fails as well.
That said, our foregoing analysis demonstrates that Appellant has
presented a compelling argument that the Commonwealth failed to produce
sufficient evidence to uphold his conviction for obscenity, which he raises in
his third issue. At count four, the Commonwealth charged Appellant with the
following violation:
(a) Offenses defined.--No person, knowing the obscene
character of the materials or performances involved, shall:
…
(3) … (ii) design, copy, draw, photograph, print, utter,
publish or in any manner manufacture or prepare any
obscene materials in which a minor is depicted….
18 Pa.C.S § 5903(a)(3)(ii).
As indicated by the statutory language, the material must be “obscene,”
and the statute adopts the aforementioned Miller standard. Material is
obscene if:
(1) the average person applying contemporary community
standards would find that the subject matter taken as a whole
appeals to the prurient interest;
(2) the subject matter depicts or describes in a patently offensive
way, sexual conduct of a type described in this section; and
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(3) the subject matter, taken as a whole, lacks serious literary,
artistic, political, educational or scientific value.
18 Pa.C.S § 5903(b). “Sexual conduct” is separately defined as follows:
Patently offensive representations or descriptions of ultimate
sexual acts, normal or perverted, actual or simulated, including
sexual intercourse, anal or oral sodomy and sexual bestiality; and
patently offensive representations or descriptions of
masturbation, excretory functions, sadomasochistic abuse and
lewd exhibition of the genitals.
Id.
Because this statute incorporates the Miller obscenity test, Section
5903 does not refer to the child pornography exception established by Ferber.
Thus, the acts criminalized here are the production of obscene material within
the meaning of the Miller standard. Accordingly, our previous discussion
regarding the uncertainty of what “lewd” means applies with even stronger
force here because the statute criminalizes the production of obscene
material, not material subject to the child pornography exception.
We agree with Appellant that the Commonwealth failed to establish
sufficient evidence of lewd exhibition of G.B.’s genitals. The evidence, when
taken in the light most favorable to the fact-finder, warrants the inference that
the photographs depicted nudity. Nudity is not enough under the obscenity
statute. Commonwealth v. Lebo, 795 A.2d 987 (Pa. Super. 2002). In
Lebo, this Court discharged obscenity convictions. The appellant owned a
photography studio and hired young women as models for photos he hoped
to sell in calendars and magazines. Id. at 989. The police learned that some
of the models may have been underage, and pursuant to a search warrant,
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seized hundreds of photographs. The Lebo Court divided the material “into
three categories: those where the model is clothed; those where the model is
partially clothed, usually with the breasts exposed; and those where the model
is completely nude.” Id. at 992. None of the photographs depicted a lewd
exhibition of the genitals, as “the few nude photographs are simply standing
nudes.” Id. “The models are not posed in overtly sexual or lewd poses, their
legs are together, and their genitals are not visible.” Id. As the
Commonwealth in the case sub judice relies on the trial court opinion’s
treatment of this issue, we quote the trial court’s analysis of Lebo:
While there are no allegations that the photographs of the victim
depicted her in ultimate sexual acts or other representations
defined by the statute, the victim testified that her vagina was
visible when she was photographed as she sat down to use the
toilet. This fact distinguishes the present case from that of
[Lebo], wherein the [a]ppellant’s conviction for obscene and
other sexual materials was reversed because the nude models
were “not posed in overtly sexual or lewd poses, their legs [were]
together, and their genitals [were] not visible.” The photos taken
of the minor victim in a private moment where her vagina would
necessarily be exposed met the definition of obscenity as
contained in the statute and said photos lacked any serious
literary, artistic, political, educational, or scientific value.
Trial Court Opinion, 6/2/22, at 5.
We respectfully disagree. The Lebo Court’s reference to the absence of
visible genitalia was, in our view, little more than an acknowledgement that
the material was not even plausibly lewd. The display of genitals is surely a
necessary condition given the phrase itself requires a depiction of genitals but
it is not a sufficient one. Moreover, the Lebo Court’s discussion of specific
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qualities of the photographs, for example the manner in which the models
were posed, supports Appellant’s contention that the absence of the actual
photographs and the lack of testimony regarding the depictions makes this
task virtually impossible. G.B.’s testimony establishes that the pictures
showed little more than G.B. using the toilet in a normal manner, which is a
setting not typically associated with sexual activity. We do not doubt that
certain arrangements or editing can transform an “innocent” nude depiction
into a lewd one. See, e.g., United States v. Horn, 187 F.3d 781, 790 (8th
Cir. 1999) (holding that depiction of nude children playing on a jungle gym
was lascivious because the appellant “freeze-framed at moments when their
pubic areas are most exposed, as, for instance, when they are doing
cartwheels; and these areas are at the center of the image and form the focus
of the depiction”). However, the evidence presented to the jury did not enable
a rational inference that the pictures qualified as a lewd exhibition as required
by Miller. The only firm description that we have of the photographs is that
they depicted parts of G.B.’s vagina/pubic area and showed her going to the
bathroom. Perhaps the result would be different if Appellant, for example,
zoomed in on the visible portion of G.B.’s genitals, but there is no evidence of
that here. We therefore discharge Appellant’s conviction at this count. As the
trial court sentenced Appellant at this count, our discharge disrupts the
sentencing scheme, and we must remand for resentencing.
Appellant’s final claim concerns two purported references to Appellant’s
right to remain silent. As previously stated, Appellant was given Miranda
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warnings and did not file a motion to suppress the statements. Appellant
elected to testify and was asked on cross-examination if he understood that
he did not have to answer the trooper’s questions. Appellant claims, with little
elaboration, that a question clarifying that he chose to give up his right to
remain silent violated his right to remain silent. Appellant also does not
account for the fact that he chose to testify. See Commonwealth v. Molina,
104 A.3d 430, 447 (Pa. 2014) (explaining that “the prosecution may impeach
the testifying defendant with his prior statements, actions, or silence,
regardless of whether the statements, actions, or silence occurred prior to or
after the reading of Miranda rights or the defendant’s arrest, if the defendant
waives his right against self-incrimination by testifying”). The second
reference came during closing argument, when the prosecutor argued that an
innocent person would not give incriminating statements.8
Appellant failed to preserve these claims, as he acknowledges that
counsel failed to object. Appellant’s Brief at 27 (“At no time did trial counsel
object to this questioning on the basis that it violated [Appellant]’s Fifth
Amendment right to remain silent.”); id. at 28 (referencing closing argument;
“Once again, no objection was ever made by trial counsel.”). Because these
claims were not preserved, we decline to address them. Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”).
____________________________________________
8Appellant explained that he did not recall making the admissions, as he was
medicated from his involuntary commitment.
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J-S39019-22
Appellant is discharged at count four. All other convictions affirmed.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/09/2023
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