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HomeMy WebLinkAboutCP-21-CR-2382-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERT GERARD SULLIVAN CP-21-CR-2382-2004 VERDICT AND OPINION Bayley, J., August 17, 2005:-- Defendant, Robert Gerard Sullivan, is charged with counts of invasion of privacy,1 criminal attempt - invasion of privacy,2 and disorderly conduce A bench trial was conducted on August 9, 2005. We find the following facts. On August 23,2004, Clorisa Blankenship and a friend were at a deli in the food court of the Capital City Mall in Lower Allen Township, Cumberland County. The friend told Blankenship that she saw a man take a picture up her skirt. The man left. Blankenship followed him and asked him whether he had taken such a picture. He did not respond, and walked away. She pursued him and he ran. She called the police on her cellular telephone. After chasing the man outside of the mall for a considerable distance, he was apprehended by a police officer. He was defendant, Robert Sullivan. His cellular telephone/camera was seized. Pursuant to a search warrant, a picture was obtained from the camera which shows the buttocks of Blankenship and her not fully opaque thong underwear. The picture was taken in the food court when defendant bent 1 18 PaC.S. S 7507.1. A misdemeanor in the third degree. 2 18 PaC.S. S 901 (7507.1). A misdemeanor in the third degree. 318 PaC.S. S 5503. A misdemeanor in the third degree. CP-21-CR-2382-2004 down directly behind Blankenship, pointing the camera up her skirt. He did not touch her. INVASION OF PRIVACY Defendant maintains that the Commonwealth has failed to prove beyond a reasonable doubt all of the elements of invasion of privacy. Section 7507.1 (a) of the Crimes Code provides: A person commits the offense of invasion of privacy if he knowingly views, photographs or films another person without that person's knowledge and consent while the person being viewed, photographed or filmed is in a state of full or partial nudity and is in a place where the person would have a reasonable expectation of privacy. . .. (Emphasis added.) Subsection (e) defines "Full or partial nudity," as: Display of all or any part of the human genitals or pubic area or buttocks, or any part of the nipple of the breast of any female person, with less than a fully opaque covering. (Emphasis added.) The Section defines "Place where a person would have a reasonable expectation of privacy," as: A location where a reasonable person would believe that he could disrobe in privacy without being concerned that his undressing was being viewed, photographed or filmed by another. (Emphasis added.) The District Attorney argues that there is proof beyond a reasonable doubt that defendant is guilty of invasion of privacy because underneath the victim's skirt was a place where she had a reasonable expectation of privacy, and the picture showed her partially nude buttocks. -2- CP-21-CR-2382-2004 In Street Road Bar & Grille, Incorporated v. Pennsylvania Liquor Control Board, 876 A.2d 346 (Pa 2005), the Supreme Court of Pennsylvania stated: The object of interpretation and construction of Pennsylvania statutes is to ascertain and effectuate the intention of the General Assembly. See 1 PaC.S. S 1501 et seq. In construing statutory language, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage. . .." 1 PaC.S. S 1903(a). When the words of a statute are clear and free from all ambiguity, that plain language is generally the best indication of legislative intent. The General Assembly does not intend a result that is absurd or unreasonable. See 1 PaC.S.1922(1). On facts similar to the present case, the Court of Appeals of Minnesota in State of Minnesota v. Morris, 644 N.W.2d 114 (2002), upheld the conviction of a defendant for violating the following statute: A person is guilty of a misdemeanor who: (1) surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events through the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and (2) does so with intent to intrude upon or interfere with the privacy of the occupant. (Emphasis added.) The Court stated that, "The area under a skirt. . . is a place or location. It is spatial, not conceptual." The Court concluded that the area underneath the skirt of the victim was a place where a reasonable person had an expectation of privacy. On facts similar to the present case, the Supreme Court of Washington in State -3- CP-21-CR-2382-2004 of Washington v. Glas, 54 P.3d 147 (2002), reversed the conviction of a defendant for violating the following statute: A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films another person, without that person's knowledge and consent, while the person being viewed photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy. (Emphasis added.) The statute defines a place where a person "would have a reasonable expectation of privacy" as either: "[a] place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another;" or "[a] place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance." (Emphasis added.) The Court concluded that the plain language of the statute did not cover intrusions of privacy in public places. Like the Washington statute, and unlike the Minnesota statute, the Pennsylvania invasion of privacy statute defines a "place where a person would have a reasonable expectation of privacy." In Pennsylvania, it is "a location where a reasonable person would believe that he could disrobe in privacy without being concerned that his undressing was being. . . photographed. . . by another." That location is conceptual, not spatial. It simply is not under a woman's skirt. Enacted in 1998, this statute was not written in anticipation of the cellular telephone/camera. Although invasion of privacy sounds like what defendant did, he did not violate Section 7501.1 (a) of the Crimes Code. -4- CP-21-CR-2382-2004 -5- CP-21-CR-2382-2004 DISORDERLY CONDUCT Defendant maintains that the Commonwealth has failed to prove beyond a reasonable doubt all of the elements of a misdemeanor three disorderly conduct. Section 5503(a) of the Crimes Code provides: A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: . . . (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. (Emphasis added.) Subsection (b) provides: An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience. .. otherwise disorderly conduct is a summary offense. (Emphasis added.) Subsection (c) provides: As used in this section the word "public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are. . . places of business. . . or any premises which are open to the public. (Emphasis added. ) In Commonwealth v. Smith, 811 A.2d 578 (Pa. Super. 2002), the defendant, while in a bar, punched a man who had spoken of him derisively to a third person. The Supreme Court reversed his conviction of disorderly conduct graded a misdemeanor of the third degree. The Court stated: Appellant argues that the evidence is insufficient because there was nothing presented to prove that his actions were directed at anyone except the victim. We are constrained to agree. The trial court cites Commonwealth v. Young, 370 Pa.Super. 42, -6- CP-21-CR-2382-2004 535 A.2d 1141 (1988), for the proposition that "one who engages in disorderly behavior in a public place is guilty of disorderly conduct even if that behavior is directed toward a single individual" Id. at 1143. However, that case involves a summary charge, for which the mens rea may be simple recklessness. See 18 PaC.S.A. S 5503(a). As noted above, to prove the misdemeanor version of the offense, the statute requires showing of specific intent "to cause substantial harm to the public or serious public inconvenience." [Commonwealth v. Coon, 695 A.2d 794 (Pa Super. 1997)], at 798 (emphasis original). "A person acts intentionally with respect to a material element of an offense when. . . it is his conscious object to engage in conduct of that nature or to cause such a result." Id. (quoting Commonwealth v. Sanders, 426 PaSuper. 362, 627 A.2d 183, 186 (1993)). Either direct or circumstantial evidence may be used to prove intent. Id. Here nothing of either variety was introduced: the fight, such as it was, began with words and escalated, apparently motivated by the victim's derogatory remarks about Appellant to a third party. Appellant argues that he struck the victim in self defense, a matter accepted by the jury, which acquitted him of simple assault. No proof was introduced to show that wider threat was posed or intended to the other patrons of the bar by Appellant's actions. *** . . . there is simply nothing to show that Appellant's ambitions ranged any further than his adversary's jaw. Indeed, as soon as he struck the victim, he left the bar. Because we find that there is insufficient evidence of the intent required for misdemeanor disorderly conduct to sustain the conviction, we reverse the judgment of sentence in this matter. (Footnote omitted.) (Emphasis added.) In the case sub judice, taking the picture up the victim's skirt created a physically offensive condition that did not serve a legitimate purpose of defendant. In contrast to the defendant punching the victim in Commonwealth v. Smith, supra, taking the picture up the victim's skirt in a shopping mall was designed to create public alarm. We find that it was defendant's intent to cause public alarm which created a physically offensive condition for no legitimate purpose by taking the picture in a busy -7- CP-21-CR-2382-2004 public area. Here, the victim's friend was alarmed when she saw defendant commit the act, as would any other person who may have seen it. The victim's alarm resulted in the chase until defendant was apprehended. The Commonwealth has proven beyond a reasonable doubt that defendant committed disorderly conduct graded a misdemeanor of the third degree.4 For the foregoing reasons, the following verdict is entered. VERDICT AND NOW, this day of August, 2005, I find defendant: (1) NOT GUILTY of attempted invasion of privacy and invasion of privacy. (2) GUILTY of disorderly conducted graded a misdemeanor of the third degree. By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire Assistant District Attorney John A. Abom, Esquire F or Defendant Probation 4 If defendant was not guilty of misdemeanor three disorderly conduct, he was guilty of summary disorderly conduct. See Commonwealth v. Young, 370 Pa. Super. 42 (1998). -8- CP-21-CR-2382-2004 :sal -9- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERT GERARD SULLIVAN CP-21-CR-2382-2004 VERDICT AND NOW, this day of August, 2005, I find defendant: (1) NOT GUILTY of attempted invasion of privacy and invasion of privacy. (2) GUILTY of disorderly conducted graded a misdemeanor of the third degree. By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire Assistant District Attorney John A. Abom, Esquire F or Defendant Probation :sal