Com. v. Kitchen

• Decision Date: 18 December 2002
• Citation: 814 A.2d 209
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Travis L. KITCHEN, Appellant.
• Court: Pennsylvania Superior Court

814 A.2d 209

COMMONWEALTH of Pennsylvania, Appellee v. Travis L. KITCHEN, Appellant.

Superior Court of Pennsylvania.

Submitted June 4, 2002.

Filed December 18, 2002.

Theodore E. Hinckley, Towanda, for appellant.

Todd K. Hinkley, Asst. Dist. Atty., Towanda, for Com., appellee.

Before: DEL SOLE, P.J., ORIE MELVIN and BROSKY, JJ.

ORIE MELVIN, J.:

¶ 1 Appellant, Travis Kitchen, appeals from the judgment of sentence imposed following his conviction of one count of Sexual Abuse of Children by Photographing Sexual Acts and one count of Possession of Child Pornography.¹ On appeal, he argues that the Child Pornography statute is unconstitutionally overbroad. He also contends that the two counts for which he was convicted should merge for purposes of sentencing and the trial court abused its discretion in imposing a sentence at the top of the aggravated range of the sentencing guidelines. We affirm.

¶ 2 Appellant was charged with violating one count of § 6312(b) for taking sexually explicit photographs of his sixteen-year-old paramour, one count of § 6312(d) for possessing them and one count of corruption of a minor. These charges were consolidated for trial with another incident in which the Appellant was charged with a single count of 18 Pa.C.S.A. § 6312(b) for photographing another minor, his sister's roommate, who was also partially nude in a sexually suggestive pose.

¶ 3 Appellant was tried before a jury on January 25, 1999.² He was acquitted of the charge involving his sister's girlfriend, and he was acquitted of the corruption charge of his former girlfriend. However, he was convicted of § 6312(b) and (d) involving his former girlfriend. Appellant was subsequently sentenced on February 28, 2000 to a period of incarceration of two (2) to five (5) years for photographing the minor victim and a consecutive period of incarceration of two (2) to five (5) years for possessing the photographs. Appellant's motion for arrest of judgment was denied, as was his motion to modify sentence.³ Appellant then filed his notice of appeal.

¶ 4 When we first considered this appeal, Appellant was represented by defense counsel Theodore Hinckley, Esquire, who filed a motion for leave to withdraw contemporaneously with the appeal, in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and its progeny. Because the issues raised on appeal were not wholly frivolous, we denied the petition to withdraw and remanded for an advocate's brief. Having now received that brief, we turn to the merits of this appeal.

¶ 5 At trial, the victim testified that when she was sixteen years of age she moved into Appellant's apartment where the two lived together for about eighteen months. She testified that during those months, Appellant photographed her over sixty times in sexually explicit poses despite the fact she was under the age of eighteen. She admitted that while they were living together she and Appellant had a child, and Appellant continued to take photographs, before, during and after her pregnancy. A number of photographs were introduced into evidence, which the victim retrieved from the WalMart Store where they had been developed. She also testified that she and the Appellant had argued about other sexually explicit photographs which he had taken, kept and refused to return.

¶ 6 Diana Hostettler, a Bradford County Children and Youth Services caseworker, testified that she first became aware of the photographs when she visited the Appellant's mobile home regarding placement of the couple's child. Ms. Hostettler was there in order to help the victim move out. She suggested that the victim might want to bring photographs from their home with her to preserve them for the future, should the victim's son want a picture of his biological parents. In sorting through photo albums and boxes with the victim, Ms. Hostettler came across photographs of the victim in various stages of undress and in sexually explicit poses. ¶ 7 When confronted, Appellant did not deny taking some of these photographs. Instead, he focused his defense on his claim that the pictures were taken with the victim's consent. He testified that he did not feel it should be against the law to photograph the mother of his child. Finally, he argued that others were just as culpable as he was because they too possessed some of the photographs.

¶ 8 In his advocate's brief, counsel has set forth Appellant's three issues on appeal:

I. Whether the statute criminalizing photographing minors in sexual acts and the possession of child pornography is unconstitutionally overbroad as it relates to the facts of this case, where the defendant and victim reside together and are raising a child?

II. Whether the offenses of photographing and possessing child pornography should merge under the circumstances of this case?

III. Whether the Court erred in imposing a sentence at the top of the aggravated range of the sentencing guidelines?

Appellant's brief at 7.

¶ 9 Appellant first complains that 18 Pa. C.S.A. §§ 6312(b) and (d), concerning Sexual Abuse of Children, are unconstitutionally overbroad statutes. At trial, he attempted to argue that the victim in this case was emancipated by Court Order and was his common law wife. Unfortunately for him, the evidence at trial did not support his claim. However, Appellant has now abandoned that claim and instead relies on the fact that he and the victim lived together for eighteen months and had a child, suggesting that she was a willing participant. Appellant's claim is that, "since a minor may consent to sexual intercourse with an adult at the age of sixteen, prosecution of the adult for photographing or possessing sexually graphic images of the minor is impermissible. Rather, the application of this law to any minor under the age of eighteen is overbroad as it criminalizes consensual activity even where the minor is living as an adult within the relationship." Appellant's brief at 10.

¶ 10 When reviewing a constitutional challenge of a statute, we bear in mind that the judiciary must accord a strong presumption of constitutionality to the acts of the legislature as a coequal branch of government. Commonwealth v. Balog, 448 Pa.Super. 480, 672 A.2d 319 (1996). To overcome this presumption, the person challenging the constitutionality of a statute shoulders the heavy burden of demonstrating that the statute clearly, palpably and plainly violates the constitution. Id. (citing Commonwealth v. Stock, 346 Pa.Super. 60, 499 A.2d 308, 311-12 (1985)). This is no easy task.

¶ 11 We focus on Appellant's attempts to claim that the statute is overbroad. As we noted in Commonwealth v. Savich, 716 A.2d 1251 (Pa.Super.1998):

The overbreadth doctrine allows a defendant to attack a statute because of its effect on conduct other than the conduct for which defendant is being punished. Mass. v. Oakes, 491 U.S. 576, 586, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) It is the burden of the person whose conduct is legitimately proscribable, and who seeks to invalidate the entire law because of its application to someone else, to `demonstrate from the text of [the law] and from actual fact' that substantial overbreadth exists. Id. at 590, 109 S.Ct. 2633.

Savich at 1255.

¶ 12 Overbroad statutes authorize the punishment of constitutionally protected conduct; where the language of the statute is not vague but literally encompasses a variety of protected activities, it cannot be read literally. Commonwealth v. Stenhach, 356 Pa.Super. 5, 514 A.2d 114, 124 (1986). In Stenhach, this Court declared the statutes against tampering with physical evidence, 18 Pa.C.S.A. § 4910, and hindering prosecution, 18 Pa.C.S.A. § 5101, were constitutionally overbroad when applied to criminal defense lawyers who had an ethical duty of constitutional dimension not to turn over incriminating evidence to the prosecution. Another example of constitutional overbreadth is the provision of the driving under the influence statute formerly found in the Vehicle Code at 75 Pa.C.S.A. § 3731(a)(5) which provided in relevant part that a person shall not drive if the amount of alcohol by weight in the blood of a person (BAC) is.10% or greater at the time of a chemical test obtained within three hours after the person drove. This statute was declared unconstitutionally overbroad because it punished constitutionally protected activity as well as illegal activity. Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996). In Barud, our Supreme Court reasoned that if a person is operating a motor vehicle with a BAC below .10%, which is legal, they might still be convicted under the statute if their BAC reaches .10% or greater within three hours after driving. Because the statute as written at the time authorized the punishment of constitutionally protected conduct, it was struck down as constitutionally overbroad.

¶ 13 In the present case, Appellant fails to set forth a constitutionally protected activity, which is being criminalized. He suggests that an adult can take pornographic pictures of a minor, if the minor consents. However, there is no authority to support such a claim. Instead, our legislature recognizes that "the inexperience of youth prevent[s] intelligent judgment in matters of morality." See Commonwealth v. Collin, 233 Pa.Super. 300, 335 A.2d 383, 386 (1975) (holding that a child's consent is "of no moment," where an adult was charged with corruption of morals of a minor). In fact, our Courts have held that consent is never an issue for proof of a corruption of minors charge, because the statute, protective in purpose, places the guardianship of minors' morality upon adults. Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807, 809 (1988). Likewise, we find that the child pornography statute is protective in purpose and the consent of a child victimized by having pornographic pictures taken of him/her is equally "of no moment." Clearly, no one can...