Commonwealth v. DeWalt

752 A.2d 915, 2000 Pa. Super. 149, 2000 Pa. Super. LEXIS 666
CourtSuperior Court of Pennsylvania
DecidedMay 15, 2000
StatusPublished
Cited by29 cases

This text of 752 A.2d 915 (Commonwealth v. DeWalt) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. DeWalt, 752 A.2d 915, 2000 Pa. Super. 149, 2000 Pa. Super. LEXIS 666 (Pa. Ct. App. 2000).

Opinions

TODD, J.:

¶ 1 Wanda Faye Dewalt appeals the judgment of sentence entered June 3, 1999, by the Snyder County Court of Common Pleas Criminal Division. DeWalt was convicted by a jury of one count of Indecent Exposure, 18 Pa.C.S.A. § 3127(a), and one count of Corruption of Minors, 18 Pa. C.S.A. § 6301(a)(1). Immediately following trial, defense counsel moved to set aside the verdict as against the weight and sufficiency of the evidence. On May 12, 1999, the trial court entered its Order denying the motion. Prior to sentencing on June 3,1999, defense counsel moved for judgment of acquittal. The trial court denied the motion and sentenced DeWalt to three months to two years on the corruption of minors conviction to be served concurrently with a sentence of five years probation on the indecent exposure conviction.

¶ 2 The evidence at trial revealed that DeWalt, while outside on her own back porch in the company of two other adult individuals, lifted her shirt to expose her bra while briefly dancing in a sort of striptease. She then pulled down her jeans along with which came her underwear. Three minor boys, ages 11, 12 and 13, looked on while standing atop a roof next door. The boys testified that DeWalt observed them watching her from the roof. Two of the boys (one of whom, the 12-year-old, was designated by the Commonwealth as the victim) testified that they saw only DeWalt’s bra and underwear, while the thirteen-year-old witness testified that he saw appellant’s “private area,” also described by him as her “pubic area”. Although this boy testified that he saw appellant’s “private area” and her “pubic [917]*917area,” he did not testify that he saw De-Walt’s genitals.

¶3 On appeal, DeWalt argues the evidence was insufficient to prove the charge of indecent exposure. In determining the sufficiency of the evidence, we must accept as true all the evidence of the Commonwealth and all reasonable inferences arising therefrom upon which the trier of fact properly could have reached its verdict. Such evidence must be sufficient in law to prove beyond a reasonable doubt that Appellant was guilty of the crime of which she stands convicted. Commonwealth v. Riley, 643 A.2d 1090, 1091 (Pa.Super.1994). Under the statute:

[a] person commits indecent exposure if that person exposes his or her genitals in any public place or 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.A. § 3127(a).

¶ 4 DeWalt argues that the Commonwealth did not demonstrate at trial any of the elements of indecent exposure, i.e., that any of the witnesses saw her genitals, that she exposed herself in public or in the presence of others, or that she knew her actions would offend, affront or alarm.

¶ 5 We will first address the statutory element pertaining to the requisite public nature of the actions in question. Appellant argues that even if this Court were to determine that she had exposed her “genitalia” as required under 18 Pa.C.S.A. § 3127(a), which she claims the evidence was insufficient to establish, she did not do so in a “public place” or a place where others are present under circumstances in which she knew or should know that this conduct is likely to offend, affront or alarm, as required by the statute. Indeed, although the boys testified that DeWalt looked in them direction before her brief dance, the Court notes that she was in the company of two other adult individuals in the privacy of her own porch in her own backyard while the boys were perched on the roof of a shed in a neighboring yard some distance away and were peering over into DeWalt’s yard:

Q Okay. And you guys were on the roof?
A Yes.
Q In your yard?
A Yes.
Q So you had to kind of look over into Ms. DeWalt’s?
A Yes.

(Trial Transcript, 5/12/99, 39.)

¶ 6 We agree with Appellant that the evidence adduced at trial was insufficient to establish that her actions took place in a public place or a place where others are present under circumstances in which she knew or should have known that her conduct was likely to offend, affront or alarm as required by the statute.

¶ 7 DeWalt further argues that the arresting officer’s testimony impermissibly augmented the victim’s testimony because the officer used the word “vagina” when no eyewitness had used that word. Upon thorough review of the record in this case, we find several of DeWalt’s arguments to have merit and we reverse.

¶ 8 The thirteen-year-old Commonwealth witness was the only one who testified that he saw Appellant’s “private” or “pubic area”. He was not listed as the victim in this case. The twelve-year-old “victim” failed to testify that he had witnessed the requisite elements to warrant a conviction of indecent exposure at all. The twelve-year-old and eleven-year-old testified that they saw DeWalt’s bra when she lifted her shirt. The record is undisputed that DeWalt pulled her shirt up and back down one time. These two boys then testified that they saw only her underwear and buttocks when she pulled her jeans and underpants down, as she was not facing them. They each testified that they covered their eyes before appellant turned around.

[918]*918¶ 9 The only Commonwealth witness who actually testified that any of the minors saw Appellant’s genitalia was the arresting officer who was not present during the incident, but who inferred from his interviews with the young witnesses that at least one of them saw DeWalt’s “vagina”. DeWalt contends that his use of the word “vagina”, when none of the boys actually used the word in their testimony, was merely an assumption substituted in place of the thirteen-year-old’s reference to “pubic” or “private area”. Indeed, the officer testified, “[m]ost of us consider [the pubic region] the same, one and the same [as the vagina]”. (Trial Transcript, 5/12/99, at 78).

¶ 10 DeWalt argues that the arresting officer’s conclusion was an impermissible augmentation of the thirteen-year-old’s testimony. She maintains that the thirteen-year-old did not mean that he saw her genitals because he never indicated that he had, and he did not use the word “vagina” in his description to the jury. We agree. The trial court specifically instructed the jury that the medical definition of “genitals” from Stedman’s Medical Dictionary, 25th Edition (1990) is: “organs relating to reproduction or generation such as the vulva in the female and the penis and scrotum in the male.” DeWalt argues, and we agree, that the arresting officer’s testimony, based solely on inferences he drew from interviews with the witnesses, was improperly used to enhance the testimony of a child witness. Commonwealth v. Smith, 586 A.2d 957, 962 (Pa.Super.1991).

¶ 11 A comparison of the eyewitness testimony with that of the arresting officer reveals that the officer’s testimony was crucial to the Commonwealth’s case. None of the eyewitnesses testified that they saw DeWalt’s “genitals” - vagina, labia or vulva. In fact, the boys’ testimony reveals that appellant was standing with her feet together or

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Bluebook (online)
752 A.2d 915, 2000 Pa. Super. 149, 2000 Pa. Super. LEXIS 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dewalt-pasuperct-2000.