Com. v. Savich

• Citation: 716 A.2d 1251
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Michael SAVICH, Appellant.
• Decision Date: 15 June 1998
• Court: Superior Court of Pennsylvania

Page 1251

716 A.2d 1251

COMMONWEALTH of Pennsylvania, Appellee, v. Michael SAVICH, Appellant.

Superior Court of Pennsylvania.

Submitted March 16, 1998.

Filed June 15, 1998.

Timothy J. Lucas, Erie, for appellant.

Garrett A. Taylor, Assistant District Attorney, Erie, for the Commonwealth, appellee.

Before POPOVICH and OLSZEWSKI, JJ., and MONTEMURO ^*, Judge.

POPOVICH, Judge:

This is an appeal from the judgment of sentence in the Court of Common Pleas of Erie County, following appellant's conviction for sexual abuse of children, 18 Pa.C.S.A. § 6312. Herein, appellant raises a novel issue for our consideration, whether 18 Pa.C.S.A. § 6312 is unconstitutionally vague. Appellant also questions whether the trial court erred in denying appellant's motion to suppress physical evidence and inculpatory statements he made to the police, and whether the trial court erred in denying appellant's request for re-sentencing when appellant was not permitted to review his pre-sentence report until 48-hours before sentencing. For the reasons which follow, we affirm.

The facts, as revealed by the record and found by the trial court, are as follows:

On August 1, 1996, at approximately 6:45 P.M., Presque Isle Park Ranger Michael Kershner received a dispatch that a suspicious male was videotaping patrons near the men's and women's (sic) bathhouses at Beach 8. Upon arriving at the scene, Ranger Kershner met Ken Phillips, a concession stand operator who had called in the incident. Mr. Phillips pointed out the suspect, [appellant], and indicated that he had been outside the female changing area for about one hour and forty-five minutes and was videotaping patrons without consent.

Ranger Kershner approached the breezeway area and observed the actions of [appellant] for 2-3 minutes. [Appellant] was observed facing toward the beach with his back toward the changing area, his video camera held in his left hand by a strap, lying on the ground with the lens directed into the changing area. The partition around the changing area is raised about 3-4 inches above the ground. The ground outside of the partition is at an angle. [Appellant] was standing near this angled area where the camera angle would present a view of the patrons inside the changing area from the knee up. Ranger Kershner heard adult female and juvenile voices coming from the changing area. [Appellant] was observed filming and changing camera positions three different times. Ranger Kershner then approached [appellant] and engaged him in general conversation as to the nature of his visit at the park and how long he had been there. [Appellant] stated that he had been there for 45 minutes and was concerned because his family was late in arriving. Ranger Kershner then offered his assistance in locating [appellant's] family but [appellant] declined.

After this brief general conversation, the Ranger informed [appellant] that he received a complaint that [appellant] had been videotaping park patrons without their consent. The [appellant] denied it and became very nervous. [Appellant] requested that the Ranger accompany him to his car so they could talk. [Ranger] Kershner declined, but advised [appellant] that they could move over to a park bench where no patrons were located.

[Appellant] was then asked if the video camera had a playback mode so the contents of the tape could be viewed. [Appellant] was told that he could refuse, but he twice gave his consent to the Ranger to view the tape. At this point the Ranger told him that if the tape showed that he was taping patrons in the nude, without consent, charges could be filed against him. [Appellant] became very nervous and jittery and stated "O.K., you've got me, there is something on there." [Appellant] was then asked a third time and gave his consent to the Ranger to view the tape.

The Ranger then asked [appellant] if he would accompany him to his cruiser for the purpose of returning to the station to view the tape. The Ranger informed [appellant] that he was not under arrest, but asked if he would consent to being placed in handcuffs for safety reasons. After [appellant] agreed, Ranger Kershner transported him to the park station. [Appellant] received his Miranda warnings at 8:20 P.M.

On August 2, 1996, [appellant] was again given his Miranda rights and agreed to give a written statement to the authorities at the Presque Isle administration building.

Trial Court Opinion, 2/28/97, pp. 1-3.

After a bench trial, appellant was convicted of sexual abuse of children, a criminal statute prohibiting the videotaping of children less than 18 years old engaging in "nudity, if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view the depiction." ¹ Appellant contends that § 6312 is void for vagueness. ² As this is a case of first impression for our court, we have found it helpful to examine the jurisprudence of our sister states construing similar statutes. ³ "Our standard of review is limited to a consideration of whether the legislation at issue is clearly, palpably, and plainly in violation of the constitution." Commonwealth v. Miller, 455 Pa.Super. 534, 689 A.2d 238, 241 (1997) (citation omitted), allocatur denied, 548 Pa. 646, 695 A.2d 785 (1997).

Duly enacted legislation carries with it a strong presumption of constitutionality and this presumption will not be overcome unless the legislation clearly, palpably and plainly violates the constitution. Commonwealth v. Swinehart, 541 Pa. 500, 508, 664 A.2d 957, 961 (1995); Commonwealth v. Highhawk, 455 Pa.Super. 186, 687 A.2d 1123, 1128 (Pa.Super.1996). The party seeking to have a legislative enactment declared unconstitutional bears a heavy burden. In re Petition to Recall Reese, 542 Pa. 114, 119, 665 A.2d 1162, 1164 (1995). A law is void on its face, and violative of due process, if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Commonwealth v. Sterling, 344 Pa.Super. 269, 496 A.2d 789, 792 (Pa.Super.1985). The constitutional prohibition against vagueness does not invalidate every statute that could have been drafted with greater precision, but we must consider the essential fairness of the law and the impracticability of drafting the legislation with greater specificity. Id. Due process simply requires the statute be drafted with sufficient definiteness that it is not susceptible to arbitrary and discriminatory enforcement. Commonwealth v. Barud, 545 Pa. 297, 304, 681 A.2d 162, 165 (1996).

Commonwealth v. Cotto, 708 A.2d 806, 810 (Pa.Super.1998).

Under New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), states have a compelling interest and great leeway in protecting children from sexual exploitation. "A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole." Ferber, 458 U.S. at 764, 102 S.Ct. at 3358; accord United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.1987) (child depicted is not required to have assumed a sexually inviting manner), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987); see also United States v. Wolf, 890 F.2d 241, 243 (10th Cir.1989) (child need not be aware that the depiction is being produced).

In his "vagueness" challenge, appellant contends that the statute does not provide reasonable notice that a videotape of nude minors who are not engaged in sexual activity is a depiction of minors engaged in a "prohibited sexual act" in violation of § 6312. Appellant also posits that the language "for purposes of sexual stimulation of the viewer" allows for arbitrary determinations as to which nude exhibitions are prohibited. We disagree.

Although not every non-prurient nude depiction of a minor falls within the purview of the statute, such depictions made "for the purpose of sexual stimulation or gratification" of the viewer do. 42 Pa.C.S.A. § 6312(b); see Ohio v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988) (statute's proscription is not so broad as to outlaw all depictions of minors in a state of nudity but only those depictions created for prurient purposes), cert. denied, 492 U.S. 904, 109 S.Ct. 3212, 106 L.Ed.2d 563 (1989); Colorado v. Batchelor, 800 P.2d 599 (Colo.1990) (language of statute simply does not require that the "real or simulated overt sexual gratification be depicted in the material"). The term "for purposes of sexual stimulation or gratification of the viewer" permits the fact-finder to distinguish between depictions such as those in the present case from nude depictions taken for legitimate scientific, medical or educational activities, which are specifically exempt under § 6312(f). See Washington v. Bohannon, 62 Wash.App. 462, 814 P.2d 694 (1991) (the language "for purposes of sexual stimulation" serves to clarify and narrow the reach of the statute, enabling the court to distinguish between permitted and prohibited photographs under the statute). This term also acts as a limitation to avoid the inhibition of freedom of expression. See Batchelor, 800 P.2d at 602 (language "for the purpose of overt sexual gratification or stimulation of one or more of the persons involved" reduces the possibility that statute criminalizing the depiction of child nudity will be used to prohibit protected speech). For example, the statute does not proscribe photographs taken for family, artistic or any other legitimate purpose because they are not taken for purposes of sexual gratification. See Batchelor, supra.

Neither law enforcement authorities nor the courts have discretion to charge or convict an individual for making videotapes depicting child nudity for any purpose other than sexual gratification or stimulation of the viewer. 18 Pa.C.S.A. § 6312(b) and (f); See Batchelor, 800...