Commonwealth v. Good

2 Pa. D. & C.4th 1, 1989 Pa. Dist. & Cnty. Dec. LEXIS 299
CourtPennsylvania Court of Common Pleas, York County
DecidedFebruary 2, 1989
Docketno. 1953 Criminal Action 1988
StatusPublished

This text of 2 Pa. D. & C.4th 1 (Commonwealth v. Good) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Good, 2 Pa. D. & C.4th 1, 1989 Pa. Dist. & Cnty. Dec. LEXIS 299 (Pa. Super. Ct. 1989).

Opinion

MILLER, J.,

This matter is before the court on defendant’s post-verdict motions after her conviction by a jury on November 17, 1988 of corruption of minors. We grant defendant’s motion for a new trial.

On June 23, 1988 defendant was charged by criminal complaint with the offenses of corruption of minors, 18 Pa.C.S. §6301, (count 1) and dissemination to minors, 18 Pa.C.S. §5903(c)(l), (count 2). At trial, the commonwealth was permitted, over objection, to amend the corruption charges. The original information charging corruption of minors stated that defendant did furnish alcoholic beverages to three females under the age of 18. The amended information stated that in addition to the furnishing of the alcoholic beverages, defendant did show sexually explicit photographs to the minors. This alleged act, the showing of the sexually explicit photographs, was also the basis for the dissemination to minors charge, of which defendant was acquitted.

The commonwealth’s evidence at trial consisted essentially of the testimony of one of the victims, who was 12 years old. The other two young victims could not be located by the commonwealth. The victim testified that defendant, who provided after-school care for the children in her home until their parents picked them up after work, gave the victims beer to drink and showed them nude photographs of defendant’s husband in various states of arousal, as well as nude photographs of defendant and other female persons doing “lesby things.” No photographs were offered in evidence.

Defendant first alleges that the court erred in allowing the commonwealth to amend the information. According to Pennsylvania Rule of Criminal Procedure 229:

[3]*3“The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.” Pa.R.Crim.P. 229.

“The purpose of this rule is to insure that a defendant is fully apprised of the charges against him, and to avoid prejudice by prohibiting last-minute additions of alleged criminal acts of which a defendant is uninformed. Commonwealth v. Lawton, 272 Pa. Super. 40, 414 A.2d 658 (1979); Commonwealth v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979), affirmed, 498 Pa. 326, 446 A.2d 583 (1982). The test is whether the amended provision alleges a different set of events, or its elements or defenses are materially different from the elements or defenses to the crime originally charged. Commonwealth v. Stanley, supra” Commonwealth v. Shirey, 333 Pa. Super. 85, 113, 481 A.2d 1314, 1329 (1984).

As the court in Shirey held, we also find that defendant in the instant case was not prejudiced by the allowance of the amendment. The alleged facts and conduct surrounding the incident complained of in the original and amended informations were identical. In view of the second count, any prepara1 tion necessary to defend against the amended information does not appear to have required alteration or addition. We, therefore, find this contention meritless.

What we do find significant and deserving of our attention is the absence of the photographs that were allegedly shown to the minors, an issue not [4]*4raised by defense counsel. The. Pennsylvania Superior Court’s opinion in Commonwealth v. Shirey, 343 Pa. Super. 189, 494 A.2d 420 (1985) (appeal after remand), addresses this subject. In Shirey, defendant was charged with “showing . . . obscene magazines and literature.” Id. at 196, 494 A.2d at 423. The court held that the conviction could not be sustained because the commonwealth failed to produce evidence that the magazines and literature were obscene. The Shirey court found Commonwealth v. Chapman, 186 Pa. Super. 632, 142 A.2d 469 (1958) to be helpful in measuring the sufficiency of evidence necessary for a conviction in a corruption of minors case. The prosecution in the Chapman case entered 40 photographs into evidence and through testimony linked those photographs with the ones shown to the minor.

In the Shirey case as in the instant case, no magazines, literature or photographs were introduced at trial by the commonwealth. The Shirey court stated:

“Significantly, the jury did not have the benefit of viewing the allegedly obscene photographs themselves. We do not believe it is reasonable for the fact finder to draw the inference that a picture is obscene based solely on the fact it showed naked men and women and that one of the covers mentioned the word sex, especially when the materials themselves have not been viewed. As the lower court in Chapman explained, the description by the minors alone was hardly conclusive in proving that they were lewd, lascivious or obscene.” Shirey at 197, 494 A.2d at 424.

Comparing the facts of the instant case with those in both the Shirey and Chapman cases we cannot in good faith find a sufficiency of evidence to sustain a conviction of corruption of minors. Since [5]*5no photographs were introduced, there was no way for the jury to determine whether the alleged pictures were sexually explicit. Statements by one of the three minors is not conclusive.

We are mindful of a most recent Pennsylvania Superior Court opinion, Commonwealth v. Anderson, 379 Pa. Super. 589, 550 A.2d 807 (1988), in which the court overruled Shirey, supra, “to the extent that [it holds] that conviction for a charge of corruption of minors requires proof of anything more than proof of the specific underlying act alleged in the information.” Anderson, supra. Our reliance on Shirey, supra is not disturbed by the Anderson ruling. In fact the Anderson court noted that “Shirey’s analysis of the corruption of minors statute and its application of the statute to the other conduct alleged is well grounded in law.” Anderson, supra. It is in this area that óur dependence on Shirey rests.

Additionally, we have outlined the facts of this case with the following well-established standard of review in mind when the issue of the sufficiency of the evidence is raised.

“[W]hether, viewing the evidence in the light most favorable to the commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt . . . The commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence . . . Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered . . .

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Related

Commonwealth v. Shirey
481 A.2d 1314 (Supreme Court of Pennsylvania, 1984)
Commonwealth v. Lawton
414 A.2d 658 (Superior Court of Pennsylvania, 1979)
Commonwealth v. Anderson
550 A.2d 807 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Griscavage
517 A.2d 1256 (Supreme Court of Pennsylvania, 1986)
Commonwealth v. Harper
403 A.2d 536 (Supreme Court of Pennsylvania, 1979)
Commonwealth v. Stanley
401 A.2d 1166 (Superior Court of Pennsylvania, 1979)
Commonwealth v. Stanley
446 A.2d 583 (Supreme Court of Pennsylvania, 1982)
Commonwealth v. Shirey
494 A.2d 420 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Chapman
142 A.2d 469 (Superior Court of Pennsylvania, 1958)

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Bluebook (online)
2 Pa. D. & C.4th 1, 1989 Pa. Dist. & Cnty. Dec. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-good-pactcomplyork-1989.