PENNSYLVANIA
Topic Outline
I. OFFENSES DEFINED
A. Child Pornography
1. Photographing, Videotaping, Depicting on Computer, or Filming Sexual
Acts
a. Elements
b. The Defendant’s Mental State
c. “Prohibited Sexual Act” Defined
2. Dissemination of Photographs, Videotapes, Computer Depictions, and
Films
a. Elements
b. “Transfer” Defined
3. Possession of Child Pornography
B. Corruption of Minors
1. Elements
2. Proof of Corruption
3. Consent
C. Displaying Obscene and Other Sexual Materials and Performances
1. Elements
2. The Defendant’s Mental State
3. “Explicit Sexual Materials” Defined
4. “Harmful to Minors” Defined
D. Endangering the Welfare of a Child
E. Indecent Assault
1. Elements
2. “Indecent Contact” Defined
3. Aggravated Indecent Assault
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Pennsylvania
F. Involuntary Deviate Sexual Intercourse
1. Elements
2. “Deviate Sexual Intercourse” Defined
G. Indecent Exposure
H. Rape
1. Elements
2. “Sexual Intercourse” Defined
3. “Forcible Compulsion” Defined
a. Determination of Force
b. Force and Children
4. Statutory Rape
II. MANDATORY REPORTING: WHO MUST REPORT?
III. SEARCH AND SEIZURE OF ELECTRONIC EVIDENCE
A. Search Warrants
1. Probable Cause
a. Definitions
i. “Probable Cause”
ii. “Reasonable Search” Defined
b. Totality of the Circumstances Test
c. Contents of the Affidavit
d. Informants
i. Reliability
ii. Trustworthiness
e. False Information: The Defendant’s Burden
f. Task of the Issuing Magistrate
g. Particularity Requirement
2. Scope of Search
a. Generally
b. Plain-View Doctrine
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Pennsylvania
3. Staleness
a. Generally
b. Factors to Consider
B. Anticipatory Warrants
1. Probable Cause
2. Constitutionality
C. Types of Searches
1. Employer Searches
2. Private Searches
3. School Searches
4. University-Campus Searches
5. Warrantless Searches
a. Of a Home
b. Exceptions
i. Exigent Circumstances
(a) Burden
(b) Factors to Consider
ii. Consent
(a) Burden
(b) Voluntariness
D. Temporary Detainment
E. Computer-Technician/Repairperson Discoveries
F. Photo-Development Discoveries
G. Criminal Forfeiture
H. Disciplinary Hearings for Federal and State Officers
I. Probation and Parolee Rights
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Pennsylvania
IV. JURISDICTION AND NEXUS
A. Jurisdictional Nexus
B. Internet Nexus
C. State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction
1. State Jurisdiction
2. Federal Jurisdiction
3. Concurrent Jurisdiction
D. Interstate Possession of Child Pornography
V. DISCOVERY AND EVIDENCE
A. Timely Review of Evidence
B. Defense Requests for Copies of Child Pornography
C. Relevance of Evidence
D. Date of Crime
1. Generally
2. Child Victims
E. Introduction of E-mails and Instant Messages into Evidence
1. Wiretapping and Electronic Surveillance Control Act
a. “Intercept” Defined
b. Consent
i. Generally
ii. Internet Conversations
2. Hearsay/Authentication Issues
3. Technical Aspects of Electronic Evidence Regarding Admissibility
F. Introduction of Text-Only Evidence: Expectation of Privacy
1. The Internet Analogized to Other Media
2. Chatroom Conversations
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Pennsylvania
G. Evidence Obtained from Internet Service Providers
1. Electronic Communications Privacy Act
2. Cable Act
3. Patriot Act
a. National Trap and Trace Authority
b. State-Court-Judge Jurisdictional Limits
H. Rape-Shield Law: Evidence of Victim’s Sexual Conduct
I. Prior Bad Acts
1. Inadmissible
a. Generally
b. Impeachment of the Defendant
i. Generally
ii. Exceptions
2. Admissible
a. Common Plan or Scheme
b. Establishing Identity of the Accused: Considering Remoteness
c. Prior Sexual Crimes
i. Against the Same Victim
ii. Against Persons Other than the Instant Victim
d. Hearsay Exceptions
i. Excited Utterance
(a) Generally
(b) Spontaneity
(i) Generally
(ii) Child Declarant
ii. Evidence of Complaint
iii. Tender Years
(a) Generally
(b) Reliability
(c) Notification of Adverse Party
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Pennsylvania
J. Prejudicial Effect v. Probative Value
1. Generally
2. Evidence of Prior Crimes
K. Witness Testimony
1. Child Witnesses: Competence
a. Generally
b. Burden
c. Judicial Inquiry into the Child’s Competence
2. Expert Testimony
a. Admissibility
b. Inadmissible
i. Credibility
ii. Veracity
iii. Common Knowledge
iv. Child Sexual Abuse
v. Sexual Assault
L. Sexual-Assault-Counselor Privilege
1. Generally
2. “Confidential Communication” Defined
3. Waiver of Privilege
VI. AGE OF CHILD VICTIM
A. Proving a Child’s Age
B. The Defendant’s Knowledge of a Child’s Age
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Pennsylvania
VII. MULTIPLE COUNTS
A. What Constitutes an Item of Child Pornography?
B. Lesser-Included Offenses
C. Double Jeopardy
1. Generally
2. Application
3. Concurrent Sentences
VIII. DEFENSES
A. Age
1. Victim
2. Defendant
B. Consent
1. Corruption of Minors
2. Child Pornography
C. Diminished Capacity
1. Addiction to the Internet
2. Insanity
D. Entrapment
E. First Amendment
1. Obscenity
2. Materials Not Suitable for Children
F. Fourth Amendment
1. Generally
2. Application
a. Sexual Offenses Generally
b. Chatroom Conversations
c. Producing Child Pornography
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Pennsylvania
G. Impossibility
1. Factual
2. Legal
H. Manufacturing Jurisdiction
I. Outrageous Conduct
J. Researcher
K. Sexual Orientation
L. Sixth Amendment
IX. SENTENCING ISSUES
A. Guidelines
1. Sentencing Code
2. Other Considerations
a. Generally
b. Rehabilitation
i. Generally
ii. Sex-Offender Treatment
B. Punishment of Multiple Similar Acts
1. Generally
2. Application
C. Concurrent and Consecutive Sentences
D. Enhancement
1. Age of Victim
2. Distribution
3. Number of Images
4. Pattern of Activity for Sexual Exploitation
5. Sadistic, Masochistic, or Violent Material
6. Use of Computers
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Pennsylvania
X. SUPERVISED RELEASE
A. Parole
B. Megan’s Law
1. Registration
2. Sexually Violent Predators
a. Definition
b. Assessment of Offender
c. Hearing
i. Burden
ii. Findings
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Pennsylvania
PENNSYLVANIA
Case List by Court
A case with ++ indicates that although the subject matter is not child exploitation,
the principle presented may still apply.
I. United States Supreme Court
• Franks v. Delaware,++ 438 U.S. 154 (1978)
II. Supreme Court of Pennsylvania
• Commonwealth v. Balodis, 747 A.2d 341 (Pa. 2000)
• Commonwealth v. Cass,++ 709 A.2d 350 (Pa. 1998)
• Commonwealth v. Cleckley,++ 738 A.2d 427 (Pa. 1999)
• Commonwealth v. Davis, 674 A.2d 214 (Pa. 1996)
• Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975)
• Commonwealth v. Gatling, 807 A.2d 890 (Pa. 2002)
• Commonwealth v. Gillespie,++ 821 A. 2d 1221 (Pa. 2003)
• Commonwealth v. Glass,++ 754 A.2d 655 (Pa. 2000)
• Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989)
• Commonwealth v. Jones, 565 A.2d 732 (Pa. 1989)
• Commonwealth v. Kelley, 801 A.2d 551 (Pa. 2002)
• Commonwealth v. Ludwig, 594 A.2d 281 (Pa. 1991)
• Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000)
• Commonwealth v. Roland,++ 637 A.2d 269 (Pa. 1994)
• Commonwealth v. Seiders, 614 A.2d 689 (Pa. 1992)
• Commonwealth v. Shively, 424 A.2d 1257 (Pa. 1981)
• Commonwealth v. Waltson,++ 724 A.2d 289 (Pa. 1998)
III. Superior Court of Pennsylvania
• Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919 (Pa. Super. Ct. 1984)
• Commonwealth v. Adams, 442 A.2d 277 (Pa. Super. Ct. 1982)
• Commonwealth v. Askew, 666 A.2d 1062 (Pa. Super. Ct. 1995)
• Commonwealth v. Ault, 323 A.2d 33 (Pa. Super. Ct. 1974)
• Commonwealth v. Barba,++ 460 A.2d 1103 (Pa. Super. Ct. 1983)
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
• Commonwealth v. Campion, 672 A.2d 1328 (Pa. Super. Ct. 1996)
• Commonwealth v. Champagne, 306 A.2d 914 (Pa. Super. Ct. 1973)
• Commonwealth v. Crossley, 711 A.2d 1025 (Pa. Super. Ct. 1998)
• Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. Ct. 2002)
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Pennsylvania
• Commonwealth v. David,++ 445 A.2d 757 (Pa. Super. Ct. 1982)
• Commonwealth v. Dennis,++ 618 A.2d 972 (Pa. Super. Ct. 1992)
• Commonwealth v. Fanelli, 547 A.2d 1201 (Pa. Super. Ct. 1988)
• Commonwealth v. Flaherty,++ 583 A.2d 1175 (Pa. Super. Ct. 1990)
• Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990)
• Commonwealth v. Frazier, 500 A.2d 158 (Pa. Super. Ct. 1985)
• Commonwealth v. Gaerttner, 649 A.2d 139 (Pa. Super. Ct. 1994)
• Commonwealth v. Gautieri, 636 A.2d 1153 (Pa. Super. Ct. 1994)
• Commonwealth v. Green, 434 A.2d 137 (Pa. Super. Ct. 1981)
• Commonwealth v. Hernandez, 615 A.2d 1337 (Pa. Super. Ct. 1992)
• Commonwealth v. Jette, 818 A.2d 533 (Pa. Super. Ct. 2003)
• Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super. Ct. 1997)
• Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. Ct. 2002)
• Commonwealth v. Kjersgaard, 419 A.2d 502 (Pa. Super. Ct. 1980)
• Commonwealth v. Knowles, 637 A.2d 331 (Pa. Super. Ct. 1994)
• Commonwealth v. Kohler, 811 A.2d 1046 (Pa. Super. Ct. 2002)
• Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. Ct. 2002)
• Commonwealth v. Lebo, 795 A.2d 987 (Pa. Super. Ct. 2002)
• Commonwealth v. Lee, 638 A.2d 1006 (Pa. Super. Ct. 1994)
• Commonwealth v. McClucas, 516 A.2d 68 (Pa. Super. Ct. 1986)
• Commonwealth v. McCue, 487 A.2d 880 (Pa. Super. Ct. 1985)
• Commonwealth v. Miller, 787 A.2d 1036 (Pa. Super. Ct. 2001)
• Commonwealth v. Moran, 823 A.2d 923 (Pa. Super. Ct. 2003)
• Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super. Ct. 1980)
• Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. Ct. 1989)
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001)
• Commonwealth v. R.P.S., 737 A.2d 747 (Pa. Super. Ct. 1999)
• Commonwealth v. Rouse, 218 A.2d 100 (Pa. Super. Ct. 1966)
• Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. Ct. 1990)
• Commonwealth v. Ryan,++ 446 A.2d 277 (Pa. Super. Ct. 1982)
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
• Commonwealth v. Sears, 616 A.2d 10 (Pa. Super. Ct. 1992)
• Commonwealth v. Stewart,++ 495 A.2d 584 (Pa. Super. Ct. 1985)
• Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. Ct. 1987)
• Commonwealth v. Vidmosko, 574 A.2d 96 (Pa. Super. Ct. 1990)
• Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. Ct. 1992)
• Commonwealth v. Watson, 627 A.2d 785 (Pa. Super. Ct. 1993)
• Commonwealth v. Westcott, 523 A.2d 1140 (Pa. Super. Ct. 1987)
• Commonwealth v. Wojtczak, 492 A.2d 1133 (Pa. Super. Ct. 1985)
• Commonwealth v. Yon, 341 A.2d 169 (Pa. Super. Ct. 1975)
• Commonwealth v. Zellner, 407 A.2d 436, 439 (Pa. Super. Ct. 1979)
• In re B.A.M., 806 A.2d 893 (Pa. Super. Ct. 2002)
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Pennsylvania
IV. Commonwealth Court of Pennsylvania
• Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904 (Pa. Commw. Ct. 2003)
• Heckman v. Pa. Bd. of Probation & Parole, 744 A.2d 371 (Pa. Commonw. Ct. 2000)
V. Common Pleas Court of Pennsylvania
A. Bucks County
• Commonwealth v. Bannigan, 60 Pa. D & C.4th 55 (Bucks County C.P. 2001)
B. Chester County
• Commonwealth v. Ridgeway, 44 Pa. D. & C.4th 51 (Chester County C.P.
1999)
C. Monroe County
• Commonwealth v. Shattuck,++ 14 Pa. D. &C.4th 549 (Monroe County C.P.
1992)
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Pennsylvania
PENNSYLVANIA
Topic Outline with Cases
A case with ++ indicates that although the subject matter is not child exploitation,
the principle presented may still apply.
I. OFFENSES DEFINED
A. Child Pornography
1. Photographing, Videotaping, Depicting on Computer, or Filming
Sexual Acts
a. Elements
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
b. The Defendant’s Mental State
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
c. “Prohibited Sexual Act” Defined
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
2. Dissemination of Photographs, Videotapes, Computer Depictions, and
Films
a. Elements
• Commonwealth v. McCue, 487 A.2d 880 (Pa. Super. Ct. 1985)
• Commonwealth v. Miller, 787 A.2d 1036 (Pa. Super. Ct. 2001)
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
b. “Transfer” Defined
• Commonwealth v. McCue, 487 A.2d 880 (Pa. Super. Ct. 1985)
3. Possession of Child Pornography
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
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Pennsylvania
B. Corruption of Minors
1. Elements
• Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. Ct. 1989)
2. Proof of Corruption
• Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. Ct. 1989)
• Commonwealth v. Zellner, 407 A.2d 436, 439 (Pa. Super. Ct. 1979)
3. Consent
• Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. Ct. 2002)
C. Displaying Obscene and Other Sexual Materials and Performances
1. Elements
• Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919 (Pa. Super. Ct.
1984)
2. The Defendant’s Mental State
• Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919 (Pa. Super. Ct.
1984)
3. “Explicit Sexual Materials” Defined
• Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919 (Pa. Super. Ct.
1984)
4. “Harmful to Minors” Defined
• Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919 (Pa. Super. Ct.
1984)
D. Endangering the Welfare of a Child
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
E. Indecent Assault
1. Elements
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
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Pennsylvania
2. “Indecent Contact” Defined
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
3. Aggravated Indecent Assault
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
F. Involuntary Deviate Sexual Intercourse
1. Elements
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
• Commonwealth v. Gautieri, 636 A.2d 1153 (Pa. Super. Ct. 1994)
• Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989)
2. “Deviate Sexual Intercourse” Defined
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
• Commonwealth v. Gautieri, 636 A.2d 1153 (Pa. Super. Ct. 1994)
• Commonwealth v. Kelley, 801 A.2d 551 (Pa. 2002)
• Commonwealth v. Westcott, 523 A.2d 1140 (Pa. Super. Ct. 1987)
G. Indecent Exposure
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
H. Rape
1. Elements
• Commonwealth v. Lee, 638 A.2d 1006 (Pa. Super. Ct. 1994)
2. “Sexual Intercourse” Defined
• Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989)
3. “Forcible Compulsion” Defined
• Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990)
• Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. Ct. 1990)
a. Determination of Force
• Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990)
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Pennsylvania
• Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. Ct. 1990)
b. Force and Children
• Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990)
• Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. Ct. 1990)
4. Statutory Rape
• In re B.A.M., 806 A.2d 893 (Pa. Super. Ct. 2002)
II. MANDATORY REPORTING: WHO MUST REPORT?
• Commonwealth v. Askew, 666 A.2d 1062 (Pa. Super. Ct. 1995)
III. SEARCH AND SEIZURE OF ELECTRONIC EVIDENCE
A. Search Warrants
1. Probable Cause
• Commonwealth v. Waltson,++ 724 A.2d 289 (Pa. 1998)
a. Definitions
i. “Probable Cause”
• Commonwealth v. Barba,++ 460 A.2d 1103 (Pa. Super.
Ct. 1983)
• Commonwealth v. Ryan,++ 446 A.2d 277 (Pa. Super. Ct.
1982)
ii. “Reasonable Search” Defined
• Commonwealth v. Barba,++ 460 A.2d 1103 (Pa. Super.
Ct. 1983)
b. Totality of the Circumstances Test
• Commonwealth v. Dennis,++ 618 A.2d 972 (Pa. Super. Ct.
1992)
• Commonwealth v. Flaherty,++ 583 A.2d 1175 (Pa. Super. Ct.
1990)
• Commonwealth v. Waltson,++ 724 A.2d 289 (Pa. 1998)
• Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549 (Monroe
County C.P. 1992)
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Pennsylvania
c. Contents of the Affidavit
• Commonwealth v. Barba,++ 460 A.2d 1103 (Pa. Super. Ct.
1983)
• Commonwealth v. Flaherty,++ 583 A.2d 1175 (Pa. Super. Ct.
1990)
d. Informants
i. Reliability
• Commonwealth v. Barba,++ 460 A.2d 1103 (Pa. Super.
Ct. 1983)
ii. Trustworthiness
• Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549
(Monroe County C.P. 1992)
e. False Information: The Defendant’s Burden
• Franks v. Delaware,++ 438 U.S. 154 (1978)
f. Task of the Issuing Magistrate
• Commonwealth v. Dennis,++ 618 A.2d 972 (Pa. Super. Ct.
1992)
• Commonwealth v. Flaherty,++ 583 A.2d 1175 (Pa. Super. Ct.
1990)
• Commonwealth v. Glass,++ 754 A.2d 655 (Pa. 2000)
• Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549 (Monroe
County C.P. 1992)
g. Particularity Requirement
• Commonwealth v. Barba,++ 460 A.2d 1103 (Pa. Super. Ct.
1983)
2. Scope of Search
a. Generally
• Commonwealth v. Waltson,++ 724 A.2d 289 (Pa. 1998)
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Pennsylvania
b. Plain-View Doctrine
• Commonwealth v. Stewart,++ 495 A.2d 584 (Pa. Super. Ct.
1985)
3. Staleness
a. Generally
• Commonwealth v. Dennis,++ 618 A.2d 972 (Pa. Super. Ct.
1992)
• Commonwealth v. Ryan,++ 446 A.2d 277 (Pa. Super. Ct. 1982)
b. Factors to Consider
• Commonwealth v. David,++ 445 A.2d 757 (Pa. Super. Ct. 1982)
• Commonwealth v. Ryan,++ 446 A.2d 277 (Pa. Super. Ct. 1982)
• Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549 (Monroe
County C.P. 1992)
B. Anticipatory Warrants
• Commonwealth v. Glass,++ 754 A.2d 655 (Pa. 2000)
1. Probable Cause
• Commonwealth v. Glass,++ 754 A.2d 655 (Pa. 2000)
2. Constitutionality
• Commonwealth v. Glass,++ 754 A.2d 655 (Pa. 2000)
C. Types of Searches
1. Employer Searches
No state cases reported.
2. Private Searches
• Commonwealth v. Ridgeway, 44 Pa. D. & C.4th 51 (Chester County
C.P. 1999)
3. School Searches
• Commonwealth v. Cass,++ 709 A.2d 350 (Pa. 1998)
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Pennsylvania
4. University-Campus Searches
See infra “School Searches,” Part III.C.
5. Warrantless Searches
a. Of a Home
• Commonwealth v. Roland,++ 637 A.2d 269 (Pa. 1994)
b. Exceptions
i. Exigent Circumstances
(a) Burden
• Commonwealth v. Roland,++ 637 A.2d 269 (Pa.
1994)
(b) Factors to Consider
• Commonwealth v. Roland,++ 637 A.2d 269 (Pa.
1994)
ii. Consent
• Commonwealth v. Cleckley,++ 738 A.2d 427 (Pa. 1999)
• Commonwealth v. Gillespie,++ 821 A.2d 1221 (Pa.
2003)
(a) Burden
• Commonwealth v. Cleckley,++ 738 A.2d 427 (Pa.
1999)
(b) Voluntariness
• Commonwealth v. Cleckley,++ 738 A.2d 427 (Pa.
1999)
• Commonwealth v. Gillespie,++ 821 A. 2d 1221
(Pa. 2003)
D. Temporary Detainment
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
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Pennsylvania
E. Computer-Technician/Repairperson Discoveries
No state cases reported.
F. Photo-Development Discoveries
No state cases reported.
G. Criminal Forfeiture
No state cases reported.
H. Disciplinary Hearings for Federal and State Officers
No state cases reported.
I. Probation and Parolee Rights
No state cases reported.
IV. JURISDICTION AND NEXUS
A. Jurisdictional Nexus
No state cases reported.
B. Internet Nexus
• Commonwealth v. Kohler, 811 A.2d 1046 (Pa. Super. Ct. 2002)
C. State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction
1. State Jurisdiction
No state cases reported.
2. Federal Jurisdiction
No state cases reported.
3. Concurrent Jurisdiction
No state cases reported.
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Pennsylvania
D. Interstate Possession of Child Pornography
No state cases reported.
V. DISCOVERY AND EVIDENCE
A. Timely Review of Evidence
No state cases reported.
B. Defense Requests for Copies of Child Pornography
No state cases reported.
C. Relevance of Evidence
• Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000)
D. Date of Crime
1. Generally
• Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975)
• Commonwealth v. Jette, 818 A.2d 533 (Pa. Super. Ct. 2003)
• Commonwealth v. McClucas, 516 A.2d 68 (Pa. Super. Ct. 1986)
• Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super. Ct. 1980)
• Commonwealth v. Rouse, 218 A.2d 100 (Pa. Super. Ct. 1966)
• Commonwealth v. Yon, 341 A.2d 169 (Pa. Super. Ct. 1975)
2. Child Victims
• Commonwealth v. Fanelli, 547 A.2d 1201 (Pa. Super. Ct. 1988)
• Commonwealth v. Jette, 818 A.2d 533 (Pa. Super. Ct. 2003)
• Commonwealth v. Vidmosko, 574 A.2d 96 (Pa. Super. Ct. 1990)
E. Introduction of E-mails and Instant Messages into Evidence
1. Wiretapping and Electronic Surveillance Control Act
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001)
• Commonwealth v. Sears, 616 A.2d 10 (Pa. Super. Ct. 1992)
a. “Intercept” Defined
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct.
2001)
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Pennsylvania
• Commonwealth v. Sears, 616 A.2d 10 (Pa. Super. Ct. 1992)
b. Consent
i. Generally
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super.
Ct. 2001)
• Commonwealth v. Sears, 616 A.2d 10 (Pa. Super. Ct.
1992)
ii. Internet Conversations
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super.
Ct. 2001)
2. Hearsay/Authentication Issues
No state cases reported.
3. Technical Aspects of Electronic Evidence Regarding Admissibility
No state cases reported.
F. Introduction of Text-Only Evidence: Expectation of Privacy
1. The Internet Analogized to Other Media
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001)
2. Chatroom Conversations
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001)
G. Evidence Obtained from Internet Service Providers
1. Electronic Communications Privacy Act
No state cases reported.
2. Cable Act
No state cases reported.
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Pennsylvania
3. Patriot Act
a. National Trap and Trace Authority
No state cases reported.
b. State-Court-Judge Jurisdictional Limits
No state cases reported.
H. Rape-Shield Law: Evidence of Victim’s Sexual Conduct
• Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. Ct. 1992)
I. Prior Bad Acts
1. Inadmissible
a. Generally
• Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990)
• Commonwealth v. Green, 434 A.2d 137 (Pa. Super. Ct. 1981)
• Commonwealth v. Kjersgaard, 419 A.2d 502 (Pa. Super. Ct.
1980)
• Commonwealth v. Knowles, 637 A.2d 331 (Pa. Super. Ct.
1994)
b. Impeachment of the Defendant
i. Generally
• Commonwealth v. Wojtczak, 492 A.2d 1133 (Pa. Super.
Ct. 1985)
ii. Exceptions
• Commonwealth v. Wojtczak, 492 A.2d 1133 (Pa. Super.
Ct. 1985)
2. Admissible
• Commonwealth v. Green, 434 A.2d 137 (Pa. Super. Ct. 1981)
• Commonwealth v. Kjersgaard, 419 A.2d 502 (Pa. Super. Ct. 1980)
• Commonwealth v. Seiders, 614 A.2d 689 (Pa. 1992)
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a. Common Plan or Scheme
• Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990)
• Commonwealth v. Green, 434 A.2d 137 (Pa. Super. Ct. 1981)
• Commonwealth v. Shively, 424 A.2d 1257 (Pa. 1981)
b. Establishing Identity of the Accused: Considering Remoteness
• Commonwealth v. Shively, 424 A.2d 1257 (Pa. 1981)
c. Prior Sexual Crimes
i. Against the Same Victim
• Commonwealth v. Knowles, 637 A.2d 331 (Pa. Super.
Ct. 1994)
ii. Against Persons Other than the Instant Victim
• Commonwealth v. Green, 434 A.2d 137 (Pa. Super. Ct.
1981)
• Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super.
Ct. 1980)
• Commonwealth v. Seiders, 614 A.2d 689 (Pa. 1992)
d. Hearsay Exceptions
i. Excited Utterance
(a) Generally
• Commonwealth v. Stohr, 522 A.2d 589 (Pa.
Super. Ct. 1987)
• Commonwealth v. Watson, 627 A.2d 785 (Pa.
Super. Ct. 1993)
(b) Spontaneity
(i) Generally
• Commonwealth v. Stohr, 522 A.2d 589
(Pa. Super. Ct. 1987)
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(ii) Child Declarant
• Commonwealth v. Stohr, 522 A.2d 589
(Pa. Super. Ct. 1987)
ii. Evidence of Complaint
• Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. Ct.
1987)
iii. Tender Years
(a) Generally
• Commonwealth v. Bishop, 742 A.2d 178 (Pa.
Super. Ct. 1999)
• Commonwealth v. Crossley, 711 A.2d 1025 (Pa.
Super. Ct. 1998)
(b) Reliability
• Commonwealth v. Crossley, 711 A.2d 1025 (Pa.
Super. Ct. 1998)
(c) Notification of Adverse Party
• Commonwealth v. Bishop, 742 A.2d 178 (Pa.
Super. Ct. 1999)
• Commonwealth v. Crossley, 711 A.2d 1025 (Pa.
Super. Ct. 1998)
J. Prejudicial Effect v. Probative Value
1. Generally
• Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. Ct. 1992)
2. Evidence of Prior Crimes
• Commonwealth v. Kjersgaard, 419 A.2d 502 (Pa. Super. Ct. 1980)
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K. Witness Testimony
1. Child Witnesses: Competence
a. Generally
• Commonwealth v. Ault, 323 A.2d 33 (Pa. Super. Ct. 1974)
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
• Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. Ct. 2002)
• Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. Ct. 1989)
• Commonwealth v. R.P.S., 737 A.2d 747 (Pa. Super. Ct. 1999)
• Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. Ct. 1987)
b. Burden
• Commonwealth v. Ault, 323 A.2d 33 (Pa. Super. Ct. 1974)
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
• Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. Ct. 2002)
• Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. Ct. 1989)
• Commonwealth v. R.P.S., 737 A.2d 747 (Pa. Super. Ct. 1999)
• Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. Ct. 1987)
c. Judicial Inquiry into the Child’s Competence
• Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
• Commonwealth v. Champagne, 306 A.2d 914 (Pa. Super. Ct.
1973)
• Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. Ct. 2002)
• Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. Ct. 1989)
• Commonwealth v. R.P.S., 737 A.2d 747 (Pa. Super. Ct. 1999)
• Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. Ct. 1987)
2. Expert Testimony
a. Admissibility
• Commonwealth v. Balodis, 747 A.2d 341 (Pa. 2000)
• Commonwealth v. Hernandez, 615 A.2d 1337 (Pa. Super. Ct.
1992)
• Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super. Ct. 1997)
• Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000)
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b. Inadmissible
i. Credibility
• Commonwealth v. Hernandez, 615 A.2d 1337 (Pa.
Super. Ct. 1992)
• Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super.
Ct. 1997)
ii. Veracity
• Commonwealth v. Balodis, 747 A.2d 341 (Pa. 2000)
iii. Common Knowledge
• Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super.
Ct. 1997)
• Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000)
iv. Child Sexual Abuse
• Commonwealth v. Hernandez, 615 A.2d 1337 (Pa.
Super. Ct. 1992)
v. Sexual Assault
• Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super.
Ct. 1997)
L. Sexual-Assault-Counselor Privilege
1. Generally
• Commonwealth v. Askew, 666 A.2d 1062 (Pa. Super. Ct. 1995)
• Commonwealth v. Davis, 674 A.2d 214 (Pa. 1996)
2. “Confidential Communication” Defined
• Commonwealth v. Askew, 666 A.2d 1062 (Pa. Super. Ct. 1995)
3. Waiver of Privilege
• Commonwealth v. Davis, 674 A.2d 214 (Pa. 1996)
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VII. AGE OF CHILD VICTIM
A. Proving a Child’s Age
• Commonwealth v. Zellner, 407 A.2d 436 (Pa. Super. Ct. 1979)
B. The Defendant’s Knowledge of a Child’s Age
• Commonwealth v. Lebo, 795 A.2d 987 (Pa. Super. Ct. 2002)
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
VII. MULTIPLECOUNTS
A. What Constitutes an Item of Child Pornography?
No state cases reported.
B. Lesser-Included Offenses
• Commonwealth v. Gatling, 807 A.2d 890 (Pa. 2002)
• Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989)
C. Double Jeopardy
1. Generally
• Commonwealth v. Adams, 442 A.2d 277 (Pa. Super. Ct. 1982)
2. Application
• Commonwealth v. Adams, 442 A.2d 277 (Pa. Super. Ct. 1982)
• Commonwealth v. Gatling, 807 A.2d 890 (Pa. 2002)
3. Concurrent Sentences
• Commonwealth v. Lee, 638 A.2d 1006 (Pa. Super. Ct. 1994)
VIII. DEFENSES
A. Age
1. Victim
• Commonwealth v. Lebo, 795 A.2d 987 (Pa. Super. Ct. 2002)
• Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
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2. Defendant
No state cases reported.
B. Consent
1. Corruption of Minors
• Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. Ct. 2002)
2. Child Pornography
• Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. Ct. 2002)
C. Diminished Capacity
1. Addiction to the Internet
No state cases reported.
2. Insanity
No state cases reported.
D. Entrapment
• Commonwealth v. Lebo, 795 A.2d 987 (Pa. Super. Ct. 2002)
E. First Amendment
1. Obscenity
• Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919 (Pa. Super. Ct.
1984)
2. Materials Not Suitable for Children
• Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919 (Pa. Super. Ct.
1984)
F. Fourth Amendment
1. Generally
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001)
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2. Application
a. Sexual Offenses Generally
• Commonwealth v. Gautieri, 636 A.2d 1153 (Pa. Super. Ct.
1994)
b. Chatroom Conversations
• Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001)
c. Producing Child Pornography
• Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. Ct. 2002)
G. Impossibility
1. Factual
No state cases reported.
2. Legal
No state cases reported.
H. Manufacturing Jurisdiction
No state cases reported.
I. Outrageous Conduct
No state cases reported.
J. Researcher
No state cases reported.
K. Sexual Orientation
No state cases reported.
L. Sixth Amendment
• Commonwealth v. Campion, 672 A.2d 1328 (Pa. Super. Ct. 1996)
• Commonwealth v. Ludwig, 594 A.2d 281 (Pa. 1991)
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• Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. Ct. 1992)
IX. SENTENCING ISSUES
A. Guidelines
1. Sentencing Code
• Commonwealth v. Frazier, 500 A.2d 158 (Pa. Super. Ct. 1985)
2. Other Considerations
a. Generally
• Commonwealth v. Frazier, 500 A.2d 158 (Pa. Super. Ct. 1985)
• Commonwealth v. Jones, 565 A.2d 732 (Pa. 1989)
b. Rehabilitation
i. Generally
• Commonwealth v. Frazier, 500 A.2d 158 (Pa. Super.
Ct. 1985)
ii. Sex-Offender Treatment
• Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904
(Pa. Commw. Ct. 2003)
B. Punishment of Multiple Similar Acts
1. Generally
• Commonwealth v. Gatling, 807 A.2d 890 (Pa. 2002)
2. Application
• Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. Ct. 2002)
C. Concurrent and Consecutive Sentences
• Commonwealth v. Moran, 823 A.2d 923 (Pa. Super. Ct. 2003)
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D. Enhancement
1. Age of Victim
No state cases reported.
2. Distribution
No state cases reported.
3. Number of Images
No state cases reported.
4. Pattern of Activity for Sexual Exploitation
• Commonwealth v. Gaerttner, 649 A.2d 139 (Pa. Super. Ct. 1994)
5. Sadistic, Masochistic, or Violent Material
No state cases reported.
6. Use of Computers
No state cases reported.
X. SUPERVISED RELEASE
A. Parole
• Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904 (Pa. Commw. Ct.
2003)
• Heckman v. Pa. Bd. of Probation & Parole, 744 A.2d 371 (Pa. Commonw. Ct.
2000)
B. Megan’s Law
1. Registration
• Commonwealth v. Bannigan, 60 Pa. D & C.4th 55 (Bucks County C.P.
2001)
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2. Sexually Violent Predators
a. Definition
• Commonwealth v. Bannigan, 60 Pa. D & C.4th 55 (Bucks
County C.P. 2001)
• Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. Ct. 2002)
b. Assessment of Offender
• Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. Ct. 2002)
c. Hearing
i. Burden
• Commonwealth v. Bannigan, 60 Pa. D & C.4th 55
(Bucks County C.P. 2001)
• Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. Ct.
2002)
ii. Findings
• Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. Ct.
2002)
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PENNSYLVANIA
Case Highlights
A case with ++ indicates that although the subject matter is not child exploitation,
the principle presented may still apply.
Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919 (Pa. Super. Ct. 1984)
As a clearly drawn display provision, impacting only incidentally on a store owner’s right
to display and sell explicit literature harmful to minors and an adult’s ability to purchase
the same, the obscenity statute is a valid exercise of legislative authority.
Commonwealth v. Adams, 442 A.2d 277 (Pa. Super. Ct. 1982)
Although rape and involuntary deviate sexual intercourse may constitute the same crime
for the purposes of the double-jeopardy clause, when the defendant’s actions constitute
separate injuries to the peace and dignity of the Commonwealth, each separate act may be
punished separately.
Commonwealth v. Askew, 666 A.2d 1062 (Pa. Super. Ct. 1995)
Since the victim did not provide the Commonwealth with any confidential information
contained in her counseling records and the rape counselor did not testify at trial on
behalf of the Commonwealth, the victim did not waive the statutory privilege and the
defendant was properly denied permission to discover the victim’s records.
Commonwealth v. Ault, 323 A.2d 33 (Pa. Super. Ct. 1974)
The trial judge found that a child victim showed an excellent ability to communicate,
capacity to have observed the incident, and the ability to differentiate between right and
wrong; therefore, the trial judge did not abuse his discretion in allowing the child to
testify.
Commonwealth v. Balodis, 747 A.2d 341 (Pa. 2000)
Lower courts improperly admitted expert testimony that it is not unusual for children to
delay in reporting incidents of sexual abuse. Testimony that goes to the veracity of a
particular class of people is inadmissible because it serves to bolster the victim’s
credibility in the eyes of the jury.
Commonwealth v. Bannigan, 60 Pa. D & C.4th 55 (Bucks County C.P. 2001)
The Bucks County Court of Common Pleas found the sexually violent predator
provisions of Pennsylvania’s Megan’s Law to have violated the defendant’s right to due
process by subjecting him to a determination of his status as a sexually violent predator
by a standard of proof (clear and convincing evidence) that is less than beyond a
reasonable doubt; however, the registration requirements of Megan’s Law are essentially
remedial and non-punitive and, therefore, constitutional.
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Commonwealth v. Barba,++ 460 A.2d 1103 (Pa. Super. Ct. 1983)
A named informant described goods stolen during a recent burglary and gave the date and
location of the crime, saying that he had seen the stolen goods delivered to the defendant
by the burglar, whom he identified. An independent police inquiry confirmed the
occurrence of the burglary and disclosed a theft of goods corresponding to those
described by the informant. This was sufficient to support a finding of probable cause.
Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. Ct. 1999)
From the earliest point following the assault, the victim told her mother and thereafter
repeated the story to her father and the investigating police officers. These statements
were properly admitted under the Tender Years Act.
Commonwealth v. Campion, 672 A.2d 1328 (Pa. Super. Ct. 1996)
The appellate court declared the child victim to be legally unavailable to testify, based on
expert testimony that she would be severely, significantly, permanently, and irreparably
emotionally and psychologically harmed if forced to testify against appellant, her
stepfather, for a fifth time. Consequently, since the child’s testimony from the prior
criminal proceedings, including one preliminary hearing and two trials, was available,
and the testimony possessed the guarantees of opportunity to cross-examine and
reliability, it was admissible.
Commonwealth v. Cass,++ 709 A.2d 350 (Pa. 1998)
Public school students have a limited expectation of privacy while in the school
environment; therefore, students are subject to a search by school officials when the
decision to search is reasonable given all the circumstances present at the inception of the
search and the search itself is reasonably limited in its scope to the objective that
prompted the search.
Commonwealth v. Champagne, 306 A.2d 914 (Pa. Super. Ct. 1973)
In finding a minor child competent to testify, there must be (1) such capacity to
communicate, including both an ability to understand questions and to gram and express
intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity
of remembering what it is the victim is called to testify about, and (3) a consciousness of
the duty to speak the truth. The trial judge was correct in concluding that the minor child
was competent to testify. Even though some of the child’s answers appeared somewhat
unresponsive, these appear primarily on cross-examination, when the child was
understandably nervous and tense. In light of the circumstances of the crime (sodomy)
and the age and inexperience of the child, some confusion is to be anticipated; however,
because, on the whole, the child’s answers demonstrated the capacity to observe,
remember, and communicate in an effective and clear fashion, the evidence was
sufficient to sustain the conviction.
Commonwealth v. Cleckley,++ 738 A.2d 427 (Pa. 1999)
The defendant’s knowledge of his right to refuse consent to search is a factor when
determining the validity of consent; however, it is not a determinative factor since other
evidence is oftentimes adequate to prove the voluntariness of the consent.
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Commonwealth v. Crossley, 711 A.2d 1025 (Pa. Super. Ct. 1998)
Because the Commonwealth failed to notify the defendant in accordance with the Tender
Years Act, the child victim’s statement should not have been admitted into evidence.
Consequently, the defendant is entitled to a new trial.
Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. Ct. 2002)
Although the child displayed the fairly commonplace inability among young children to
stay focused on any one topic for an extended period of time, the appellate court was
convinced that she was aware of, and able to, describe the physical acts her father had
performed on her and also knew the difference between the truth and a lie; therefore, she
was deemed competent to testify.
Commonwealth v. David,++ 445 A.2d 757 (Pa. Super. Ct. 1982)
The evidence of gambling is transient in nature. Moreover, the items sought could have
been used for completely innocuous purposes as well as for illegal ones. Because there
was no showing of continuing illegal activity to support the warrant, the evidence seized
should have been suppressed and it was error not to do so.
Commonwealth v. Davis, 674 A.2d 214 (Pa. 1996)
A juvenile sexual-assault victim and his family waived any privilege to information
contained in a sexual-assault counselor’s records by giving the prosecutor access to them.
The defendant was entitled to this information in order to confront the witness at trial,
regardless of the appropriateness of his designs to as to use at trial of the information
hypothetically contained in the records.
Commonwealth v. Dennis,++ 618 A.2d 972 (Pa. Super. Ct. 1992)
It is well established in Pennsylvania that stale information cannot supply the probable
cause necessary for the issuance of a search warrant. If, however, it is demonstrated that
criminal conduct has in fact continued, then the relevant information, in spite of its
vintage, may not be deemed stale.
Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975)
The Commonwealth does not always need to prove a single, specific date of a crime;
however, any leeway permissible would vary with the nature of the crime and the age and
condition of the victim, balanced against the rights of the accused. In the instant case,
requiring the defendant to defend a charge of conduct occurring anywhere within a 14-
month period was a fundamentally unfair burden.
Commonwealth v. Fanelli, 547 A.2d 1201 (Pa. Super. Ct. 1988)
The victim’s minority, and the obvious effects it has on recall, should not be used as a
sword by the defendant in avoiding the criminality of his behavior. The appellate court
found the recollection of the 6-year-old victim to be sufficient enough to prove with
reasonable clarity that she had been assaulted by the appellant within a period
encompassed by the applicable statute of limitations.
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Commonwealth v. Flaherty,++ 583 A.2d 1175 (Pa. Super. Ct. 1990)
The court will not expand application of Pennsylvania’s limited, good-faith exception to
include cases where the affidavit is insufficient to establish probable cause, and neither
the issuing authority nor the police know of additional facts which would be sufficient to
create probable cause.
Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990)
The appellate court affirmed the trial court’s determination that the defendant’s actions as
to each of his victims represented admissible evidence under the common-plan exception.
The similarities between the occurrences described by these six witnesses and the victim
were not insignificant details. Rather, the similarities were striking and represented the
unique signature of the defendant. All of the witnesses knew the appellant in the context
of a counselor-patient relationship, and all had met the appellant during their adolescence,
when they were experiencing emotional, behavioral, and psychological difficulties.
Commonwealth v. Frazier, 500 A.2d 158 (Pa. Super. Ct. 1985)
A trial judge is not bound hard and fast by the sentencing guidelines. Since the judge
stated his reasons for departing from the guidelines, including the defendant’s good
background, and this departure was not unreasonable, the appellate court affirmed the
judgment of sentence.
Commonwealth v. Gaerttner, 649 A.2d 139 (Pa. Super. Ct. 1994)
The defendant’s disproportionately heavy sentence (the statutory maximum) did not
constitute a violation of equal protection. The reason the defendant was given such a long
sentence was because of his exceptionally long rap sheet and peculiar involvement with
child pornography; therefore, the defendant’s punishment was tailored to fit his
admittedly unique crimes and criminal history.
Commonwealth v. Gatling, 807 A.2d 890 (Pa. 2002)
An overarching chain of events does not constitute a single criminal act when there is a
break in that chain. A break requires both that (1) the acts constituting commission of the
first crime were completed before the defendant began committing the second crime, and
(2) proof of the second crime did not in any way rely on the facts necessary to prove the
first crime. In addition, the break must be either a significant temporal lapse, or where
applicable, indicated by a change in the criminal intent of the defendant at some point
during the sequence. In the present case, the evidence suggested that, at first, the
defendant intended to push his penis against the child victim’s buttocks, as he had done
before; however, on a subsequent occasion, the defendant developed the intent to engage
in sexual relations with the child victim and undressed both himself and the child victim
so that he could have sexual intercourse with the child. The crime of corruption of a
minor was complete before the defendant turned the child victim over and removed her
clothes. The acts constituting statutory sexual assault did not commence until after the
defendant turned the child victim over and took off her clothes. Proof of the statutory
sexual assault did not, in any way, rely on the facts constituting the corruption-of-a-minor
charge. The evidence indicated a change in intent and a break in the chain of events,
signifying two separate criminal acts – corruption of a minor and statutory sexual assault.
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Commonwealth v. Gautieri, 636 A.2d 1153 (Pa. Super. Ct. 1994)
The defendant cajoled a 12-year-old boy into acquiescing to acts of oral sex. The
appellate court rejected the defendant’s contention that his conduct was constitutionally
protected under the right to privacy.
Commonwealth v. Gillespie,++ 821 A.2d 1221 (Pa. 2003)
When officers arrived at the defendant’s residence, the defendant’s wife admitted them
voluntarily. The defendant was clearly aware of his rights, knew he could refuse consent
to search, and in fact did refuse. The officers told the defendant that they would seek a
warrant and in order to secure the residence, they requested everyone wait outside. The
defendant immediately became belligerent and aggressive. The police did not try to bully
him; it was the other way around. The fact that the defendant spontaneously blurted out
the contraband’s location was not in response to any police threats or coercive tactics.
The officer’s did not coerce the defendant’s consent.
Commonwealth v. Glass,++ 754 A.2d 655 (Pa. 2000)
In making the assessment whether contraband or evidence of a crime will be found at the
particular place that is to be searched, the magistrate may consider, as a valid source for
probable cause, information concerning a future event.
Commonwealth v. Green, 434 A.2d 137 (Pa. Super. Ct. 1981)
In view of the defendant’s strenuous denials at trial that the assault on the victim ever
occurred, the appellate court could not find the admission of the prejudicial evidence of
the defendant’s prior crimes to be harmless, reversing the judgment of sentence and
granting a new trial.
Commonwealth v. Hernandez, 615 A.2d 1337 (Pa. Super. Ct. 1992)
A witness testified regarding the Child Protective Services’ mandated procedures in
investigating allegations of child-sexual abuse. The content of the testimony was nothing
more than the chronology of events that ultimately led to the charges being initiated
against the defendant. The witness’s testimony did not improperly intrude upon the jury’s
function to evaluate the credibility of the victim, neither was it a highly prejudicial
personal opinion.
Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989)
When the trial judge merged forcible rape and statutory rape into involuntary deviate
sexual intercourse, discrete offenses into one offense, he fell into error. Forcible rape and
statutory rape do not merge into a single offense. The defendant was properly convicted
of both and he should have been sentenced for each separately.
Commonwealth v. Jette, 818 A.2d 533 (Pa. Super. Ct. 2003)
When a young child is the victim of a crime, it is often impossible to ascertain the exact
date when the crime occurred. He or she may have only a vague sense of the days of the
week, the months of the year, and the year itself. If such children are to be protected by
the criminal-justice system, a certain degree of imprecision must be tolerated.
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Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super. Ct. 1997)
Expert testimony that a child who is anally sodomized might not suffer physical injury or
scarring from the assault is admissible because the physical condition of a sexual-assault
victim is not a matter that is typically within the knowledge of average jurors. Further,
because this testimony pertains to objective medical facts rather than speculative
explanations for patterns of behavior, this testimony does not encroach upon the jury’s
role in evaluating witness credibility.
Commonwealth v. Jones, 565 A.2d 732 (Pa. 1989)
The sentence imposed should call for confinement that is consistent with the protection of
the public, the gravity of the offense as it relates to the impact on the life of the victim
and the community, and the rehabilitative needs of the defendant. Here, the lower court
did not take adequate consideration of the defendant’s background, his crime-free adult
record, the relatively short time span during which the crimes occurred, his undisputed
mental illness and expression of remorse, and the prospects of treatment of appellant’s
illness.
Commonwealth v. Kelley, 801 A.2d 551 (Pa. 2002)
The definitions of sexual intercourse and deviate sexual intercourse include vaginal
intercourse, anal intercourse, oral intercourse, and penetration by a foreign object, but not
digital penetration of the vagina.
Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. Ct. 2002)
Consent is not an issue for child-pornography charges. Clearly, no one can legally take
pornographic photographs of a child, regardless of whether the child consents. The
defendant photographed the victim over 60 times in sexually explicit poses despite the
fact that she was under the age of 18. The court would not afford the defendant the
benefit of viewing his crimes as one continual event.
Commonwealth v. Kjersgaard, 419 A.2d 502 (Pa. Super. Ct. 1980)
The appellate court affirmed the trial court’s decision to admit evidence of the
defendant’s prior offense (rape of a 14-year-old girl) as showing a common scheme, plan,
or design and to negate the defense of consent. Both offenses followed a chance meeting
in a public place with young girls who responded to offers of assistance and were lured to
an apartment where they were prevented from leaving. In each case, the defendant
pressed a sharp blade to their throat, ordered them to disrobe, threatening that if they
screamed, he would kill them. The court found that the trial court’s repeated and
extensive limiting instructions to the jury, both before the victim’s testimony and prior to
deliberations, negated any danger that the jury would convict only because the defendant
was a bad man who had raped some other girl in the past, irrespective of whether he
committed the charged crime.
Commonwealth v. Knowles, 637 A.2d 331 (Pa. Super. Ct. 1994)
The evidence did not refer to a single, prior incident but to a series of incidents between
the defendant and his wife’s granddaughter when the two were alone. The evidence
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established, in effect, a design, a passion that the defendant had for sexual contact with
his step-granddaughter. This evidence was admissible to show a propensity for illicit
sexual relations with the victim.
Commonwealth v. Kohler, 811 A.2d 1046 (Pa. Super. Ct. 2002)
Although the offense giving rise to the guilty plea was facilitated by the defendant
entering Chester County to remove the victim, with the criminal objective of having
sexual relations with the victim, the offense was necessarily predicated on the
defendant’s transmission of internet solicitations to the victim, who was then located in
Chester County. These facts supported jurisdiction in the Chester County Court of
Common Pleas.
Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. Ct. 2002)
Finding a number of the statutory factors absent, the appellate court reversed the trial
court’s determination that the defendant was a sexually-violent predator. The offense did
not involve multiple victims and there was no evidence of force or cruelty. In addition,
this conviction was the defendant’s first; his prior criminal history involved only one
unrelated offense and he had no prior incidents involving deviant sexual behavior or
mental-health issues.
Commonwealth v. Lebo, 795 A.2d 987 (Pa. Super. Ct. 2002)
The appellate court rejected the defendant’s argument that because law enforcement
returned to him previously-seized photographs similar to those of the victims in that they
depicted young women in the nude, he was entrapped when he was arrested nearly one
year later for having photographs similar to the ones previously returned to him. Law
enforcement did not make any knowing, false representations when they returned the
photographs. They did so because they were unable to ascertain whether any of the
women depicted were underage. By returning the photographs for lack of evidence to
prosecute, law enforcement did not represent that photographing underage models was
not prohibited nor did they persuade the defendant to commit such an offense. The trial
court did not err in refusing to give the jury the instruction on entrapment.
Commonwealth v. Lee, 638 A.2d 1006 (Pa. Super. Ct. 1994)
The trial court imposed an illegal sentence that was corrected by the appellate court. The
defendant committed two forcible acts of anal intercourse and two acts of oral intercourse
with the victim. The defendant was charged with four counts of rape and four counts of
involuntary deviate sexual intercourse. He was sentenced on all eight counts, although it
is clear that he achieved only four acts of penetration. The appellate court concluded that
this violated the Constitution’s proscription of double jeopardy.
Commonwealth v. Ludwig, 594 A.2d 281 (Pa. 1991)
The use of closed-circuit television violates the defendant’s right, under the confrontation
clause of the Pennsylvania Constitution, to meet a witness face-to-face. Unlike its federal
counterpart, Article I, § 9 of the Pennsylvania Constitution does not reflect a preference,
but clearly, emphatically, and unambiguously requires a face-to-face confrontation.
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Commonwealth v. McClucas, 516 A.2d 68 (Pa. Super. Ct. 1986)
The appellate court did not find merit in the defendant’s contention that the lack of
chronological specificity in the informations charging him with rape, statutory rape, and
incest prevented him from adequately defending himself. The court held that it would not
serve the ends of justice to permit a person to rape and otherwise sexually abuse his child
with impunity simply because the child failed to record in a daily diary the unfortunate
details of her childhood.
Commonwealth v. McCue, 487 A.2d 880 (Pa. Super. Ct. 1985)
Noncommercial trading or exchange of pornographic material falls under the coverage of
the statute criminalizing the sale or transport of child pornography.
Commonwealth v. Miller, 787 A.2d 1036 (Pa. Super. Ct. 2001)
Transportation of child pornography by any means is prohibited by both federal and state
statute. The public policy behind both statutes is also the same: to prevent the
exploitation of minors. Since the crime of which the defendant was convicted in federal
court is an “equivalent offense” to a Pennsylvania statute, he was required to register
pursuant to Megan’s Law.
Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000)
A doctor’s opinion that the lack of medical evidence is not inconsistent with the
allegation of anal sodomy is admissible because it only explained the significance of the
results of the physical examination. The doctor never expressed any opinion as to
whether the children were telling the truth about being sexually abused.
Commonwealth v. Moran, 823 A.2d 923 (Pa. Super. Ct. 2003)
A sentencing judge must state whether multiple sentences imposed at the same time are
to run concurrently or consecutively.
Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super. Ct. 1980)
Admittedly, the victim at no time unequivocally testified as to an exact date on which she
was sexually abused. She did, however, provide several dates that, if believed, would
have permitted the jury to ascribe a “reasonably certain” date to the offenses alleged. The
appellate court held that there was ample evidence in the record to support the
defendant’s convictions.
Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. Ct. 1989)
Inserting a knife or screwdriver into the vagina of a child may constitute corruption of a
minor. The Commonwealth need not prove that the defendant’s acts actually corrupted
the minor’s morals, but only that they tended to do so. The defendant’s argument that his
conduct could not have corrupted or tended to corrupt his daughter because it was not the
kind of conduct that would have aroused or satisfied a sexual desire on the part of the
child was rejected by the appellate court because as a matter of the common sense of the
community, as well as the sense of decency, propriety, and the morality that most people
entertain, a jury could find that the defendant’s conduct tended to corrupt the morals of
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his minor daughter. It introduced this child to conduct that violated the sense of decency
and propriety that most people entertain.
Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001)
The communications at issue in this case were not intercepted. The messages were sent
directly to the victim. After receiving the communications, the victim forwarded the
messages to the police. The defendant could not have a reasonable expectation of privacy
deserving of Fourth Amendment protection in his E-mail communications. An E-mail
message, like a letter, cannot be afforded a reasonable expectation of privacy once that
message is received.
Commonwealth v. R.P.S., 737 A.2d 747 (Pa. Super. Ct. 1999)
The appellate court deemed the child incompetent to testify. Although the child victim
had the ability to understand questions and frame somewhat appropriate answers, he
seemed unable to understand his duty to tell the truth.
Commonwealth v. Ridgeway, 44 Pa. D. & C.4th 51 (Chester County C.P. 1999)
Once a private person violates another’s right of privacy, the government may do the
same thing as long as it does not exceed the bounds of the original private search. Such is
what happened in the instant case: the victims’ mother had viewed the entire tape the
defendant made showing her three daughters in various stages of nudity, so it was
legitimate for the police to view the entire tape as well.
Commonwealth v. Roland,++ 637 A.2d 269 (Pa. 1994)
An important factor to be considered when determining whether any exigency exists is
the gravity of the underlying offense. Application of the exigent-circumstances exception
in the context of a home entry should rarely be sanctioned when there is probable cause
to believe that only a minor offense has been committed.
Commonwealth v. Rouse, 218 A.2d 100 (Pa. Super. Ct. 1966)
It is well established that the Commonwealth is not restricted to proof of the crime on the
exact date stated in the indictment. In the prosecution of sodomy or other crimes in which
a particular date or day of the week is not the essence of the offense, the
Commonwealth’s burden is to prove the commission of the crime upon some date fixed
with reasonable certainty and within the prescribed statutory period.
Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. Ct. 1990)
The 33-year-old father of a pre-pubescent child repeatedly came into her room at night,
woke her up, and engaged in sexual intercourse with her. The jury could conclude from
the evidence of her crying out and her being forced to swallow his semen that the victim
resisted her father’s advances, and in addition that he used his position of authority and
trust over her and exploited her sense of duty and obedience to him in order to overcome
her resistance.
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Commonwealth v. Ryan,++ 446 A.2d 277 (Pa. Super. Ct. 1982)
When it comes to establishing probable cause to issue a search warrant, properly recited
facts indicating activity of a protracted and continuous nature make the passage of time
less significant.
Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1998)
The appellate court affirmed the trial court’s conviction, rejecting the defendant’s
argument that the “sexual abuse of children” statute was unconstitutionally vague. A
person of common intelligence would grasp that covertly videotaping infant, adolescent,
and pubescent nude girls would fall within the statute if the videotapes were made for the
sexual gratification or stimulation of the videotaper.
Commonwealth v. Sears, 616 A.2d 10 (Pa. Super. Ct. 1992)
It is common practice in law-enforcement circles for federal and state law-enforcement
personnel to exchange information and to offer assistance to one another; therefore, the
use in the Commonwealth of taped conversations secured through a legally authorized
federal wiretap is not in contravention of the Pennsylvania anti-wiretap statute, and that
any evidence disclosed by such means may be admissible in Pennsylvania courts.
Commonwealth v. Seiders, 614 A.2d 689 (Pa. 1992)
The Pennsylvania Supreme Court reversed the Superior Court’s finding that evidence of
the defendant’s prior crimes (indecent assault and endangering the welfare of children)
was relevant to show his motive of receiving sexual gratification from young girls in the
6- and 7-year-age range. While sexual gratification is a common motive to both the prior
crimes and the instant crimes (statutory rape, involuntary deviate sexual intercourse,
corruption of a minor, indecent assault, and endangering the welfare of children), the
requisite causal connection is absent. Accordingly, the evidence of the prior crimes was
inadmissible to prove motive.
Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549 (Monroe County C.P. 1992)
Reasonableness is the applicable standard for determining the time limits to be used on a
search warrant.
Commonwealth v. Shively, 424 A.2d 1257 (Pa. 1981)
The defendant was convicted of sodomy and incarcerated for a three-year term. Six days
after his release from prison, he committed the instant offense, the rape of a 20-year-old
female. The Pennsylvania Supreme Court rejected the Commonwealth’s argument that
because of his incarceration, the period of time in which he had the opportunity to
commit these criminal acts of a sexual nature was only seven months, and that period is
not so remote as to render the evidence of the prior crime inadmissible. The Pennsylvania
Supreme Court did not address the issue of whether the defendant’s period of
incarceration should be excluded in answering the remoteness question, for even the
period of seven months rendered the evidence too remote to allow its admission.
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Commonwealth v. Stewart,++ 495 A.2d 584 (Pa. Super. Ct. 1985)
Law enforcement came upon contraband inadvertently, in a place where they had a legal
right to be at the time of discovery, and the incriminating character of the items was
apparent to the officers; therefore, the items were legally seized under the plain-view
doctrine.
Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. Ct. 1987)
The testimony of the victim’s mother was properly limited to establishing that a
complaint was made and to identifying the occurrence complained of. The record reflects
that the victim graphically testified to being molested by her father. In addition, her
mother corroborated that testimony by relaying statements made to her by the child
victim. These statements were properly received under the prompt-complaint exception
to the hearsay rule.
Commonwealth v. Vidmosko, 574 A.2d 96 (Pa. Super. Ct. 1990)
Although the Commonwealth is required to establish the date of alleged offenses with
reasonable certainty, young children are not required to testify regarding the exact dates
of the sexual assaults they have endured. The child victims in this case were sexually
abused over a lengthy period of time by many adults, including their mother and father.
Unquestionably, the children testified to events that occurred earlier than 1982. This does
not, however, change the fact that their testimony clearly indicates that the defendant
abused them during 1982.
Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. Ct. 1992)
Where the proffered evidence excluded by the Rape-Shield Law is relevant, non-
cumulative, and more probative of the defense than prejudicial, it must be admitted. In
light of the evidence that the victim wanted to leave her aunt’s home and the uncontested
evidence that the victim had been previously removed from a home in which she had
successfully alleged that she had been sexually abused, to have excluded such evidence
was to frustrate the truth-determining process by preventing consideration of exculpatory
evidence to the defense.
Commonwealth v. Waltson,++ 724 A.2d 289 (Pa. 1998)
Where there is probable cause to believe that contraband is located within a particular
room of a single-unit house, Article I, § 8 of the Pennsylvania Constitution does not
preclude a search of the entire residence.
Commonwealth v. Watson, 627 A.2d 785 (Pa. Super. Ct. 1993)
The child victim’s statement, “My daddy did it,” was properly received into evidence.
Having his hand forcibly immersed in a hot liquid was undoubtedly a terrifying and
shocking occurrence for the child victim. Though the record does not clearly establish
how much time elapsed between this occurrence and the utterance, it is clear that this
child was still suffering from the emotional shock and trauma of that incident when he
made the statement. A law-enforcement officer testified that when she observed the
victim at the time he made this statement he was crying, scared, and nervous. The treating
physician stated that burns such as those suffered by the child victim are very painful;
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that adults who suffer such burns are not able to obtain relief even when administered
morphine. The court was satisfied that at the time the child victim told the officer that his
“daddy” hurt his hand he was suffering from severe emotional trauma as well as intense
physical pain. Moreover, it was clear to the court that when this child made the statement
implicating his father he was, because of that intense pain and emotional trauma,
incapable of reflecting on the question (“how did you hurt your hands?”) posed by the
officer. His response was spontaneous and certainly not the product of reflective thought.
Commonwealth v. Westcott, 523 A.2d 1140 (Pa. Super. Ct. 1987)
Deviate sexual intercourse can be that which occurs by the means or the agency of the
mouth or tongue in penetrating the vagina. Any other interpretation would result in an
absurd construction being placed upon the statute that the General Assembly, in enacting
legislation, is presumed never to have intended.
Commonwealth v. Wojtczak, 492 A.2d 1133 (Pa. Super. Ct. 1985)
There may be situations where a defense attorney is substantially certain that the
prosecution will utilize a defendant’s prior convictions if he or she decides to testify. In
those situations, it may be reasonable trial strategy for the defense to bring those
convictions out on direct examination in order to minimize their impact, thus muting the
prosecution’s thunder. Here, trial counsel introduced the defendant’s prior criminal
record to show that he was honest, to show that his prior convictions had not been for
crimes of violence, and to minimize the impact of such information on the jury by
introducing it on direct examination rather than having it introduced by the
Commonwealth. By eliciting such information, the defendant was placing his character as
a non-violent person in issue; therefore, it is highly likely that the trial judge would have
allowed the prosecution to raise the defendant’s past record in an attempt to impeach this
character evidence.
Commonwealth v. Yon, 341 A.2d 169 (Pa. Super. Ct. 1975)
The defense was founded on a mistaken-identity theory. In short, at no point in the record
did the defendant indicate any prejudice by reason of the lack of specific dates in the
preparation of his defense. He testified that he had never visited nor had he had sexual
relations with the child. In light of all the circumstances, the Commonwealth’s averment
of the time of the offense was sufficient.
Commonwealth v. Zellner, 407 A.2d 436 (Pa. Super. Ct. 1979)
The “corruption of minors” statute presumes a defendant’s knowledge of the victim’s
age. The defendant made no effort in the instant case to overcome the presumption and
the appellate court found the argument that the mere appearance of the victim on the
witness stand was alone sufficient, frivolous.
Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904 (Pa. Commw. Ct. 2003)
The controlling inquiry, when evaluating a change in parole laws against the federal ex
post facto prohibition, is whether retroactive application of a law creates a sufficient risk
of increasing the measure of punishment for a crime. The increase in punishment will not
be shown by conjecture or by attenuated possibility.
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Franks v. Delaware,++ 438 U.S. 154 (1978)
Where a defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the
affiant in a search-warrant affidavit, and if the allegedly false statement is necessary to
the finding of probable cause, the Fourth Amendment of the U.S. Constitution requires
that a hearing be held at the defendant’s request. In the event that at that hearing the
allegation of perjury or reckless disregard is established by the defendant by a
preponderance of the evidence, and, with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause, the search
warrant must be voided and the fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit.
Heckman v. Pa. Bd. of Probation & Parole, 744 A.2d 371 (Pa. Commonw. Ct. 2000)
The Board of Probation and Parole’s parole conditions for the defendant were explicit:
contact with any person 18 or under was forbidden. That condition was violated and the
defendant even admitted that he had contact with a 17-year-old over the Internet.
In re B.A.M., 806 A.2d 893 (Pa. Super. Ct. 2002)
Consensual sexual relations between two 16-year-olds is not criminal. The same behavior
between an older person and a child under 13, however, obviously renders the former
subject to criminal penalty. There can then be no legitimate interest in prosecuting
consensual sexual activity between two children under 13.
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PENNSYLVANIA
Offenses Defined
I. Child Pornography
A. Photographing, Videotaping, Depicting on Computer, or Filming Sexual Acts
1. Elements
• Any person who causes or knowingly permits a child under the age of
18 years to engage in a prohibited sexual act or in the simulation of
such act is guilty of a felony of the second degree if such person
knows, has reason to know, or intends that such act may be
photographed, videotaped, depicted on computer or filmed. 18 PA. CONS.
STAT. ANN. § 6312.
– Commonwealth v. Savich, 716 A.2d 1251, 1254 n.1 (Pa. Super. Ct. 1998).
2. The Defendant’s Mental State
• The Commonwealth need not allege or prove that appellant intended to
have others view the videotape in the future.
– Commonwealth v. Savich, 716 A.2d 1251, 1257 (Pa. Super. Ct. 1998).
• Proof of personal sexual gratification may be established by the
circumstances surrounding the videotaping.
– Commonwealth v. Savich, 716 A.2d 1251, 1257 (Pa. Super. Ct. 1998).
3. “Prohibited Sexual Act” Defined
• “Prohibited sexual act” means nudity if such nudity is depicted for the
purpose of sexual stimulation or gratification of any person who might
view such depiction.
– Commonwealth v. Savich, 716 A.2d 1251, 1256 (Pa. Super. Ct. 1998).
B. Dissemination of Photographs, Videotapes, Computer Depictions, and Films
1. Elements
• Any person who sells, displays for sale or transfer, or who possesses
for the purpose of sale any book, magazine, pamphlet, slide,
photograph, or film depicting a child under the age of 16 years
engaging in a prohibited sexual act or in the simulation of such act is
guilty of a felony of the third degree. 18 PA. CONS. STAT. ANN. § 6312.
– Commonwealth v. McCue, 487 A.2d 880, 882 (Pa. Super. Ct. 1985).
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– Commonwealth v. Miller, 787 A.2d 1036, 1039 (Pa. Super. Ct. 2001).
– Commonwealth v. Savich, 716 A.2d 1251, 1254 n.1 (Pa. Super. Ct. 1998).
2. “Transfer” Defined
• The statute does not envision somebody carrying or removing
something or just transporting it. The word “transfer” is used in the
statute to transfer possession of it from one person to another person.
– Commonwealth v. McCue, 487 A.2d 880, 883 (Pa. Super. Ct. 1985).
C. Possession of Child Pornography
• Any person who knowingly possesses or controls any book, magazine,
pamphlet, slide, photograph, film, videotape, computer depiction, or other
material depicting a child under the age of 18 years engaging in a prohibited
sexual act or in the simulation of such act is guilty of a felony of the third
degree. 18 PA. CONS. STAT. ANN. § 6312.
– Commonwealth v. Savich, 716 A.2d 1251, 1254 n.1 (Pa. Super. Ct. 1998).
II. Corruption of Minors
A. Elements
• Whoever, being of the age of 18 years and upwards, by any act corrupts or
tends to corrupt the morals of any minor less than 18 years of age, or who
aids, abets, entices, or encourages any such minor in the commission of any
crime, or who knowingly assists or encourages such minor in violating his or
her parole or any order of court, is guilty of a misdemeanor of the first degree.
18 PA. CONS. STAT. § 6301.
– Commonwealth v. Pankraz, 554 A.2d 974, 977 (Pa. Super. Ct. 1989).
• The common sense of the community, as well as the sense of decency,
propriety, and the morality that most people entertain is sufficient to apply the
statute to each particular case, and to individuate what particular conduct is
rendered criminal by it.
– Commonwealth v. Pankraz, 554 A.2d 974, 976 (Pa. Super. Ct. 1989).
B. Proof of Corruption
• The Commonwealth need not prove that the defendant’s acts actually
corrupted the minor’s morals, but only that they tended to do so.
– Commonwealth v. Pankraz, 554 A.2d 974, 976 (Pa. Super. Ct. 1989).
• “Tending to corrupt” like “contributing to delinquency” is a broad term
involving conduct toward a child in an unlimited variety of ways that tends to
produce, encourage, or continue conduct of the child that would amount to
delinquent conduct.
– Commonwealth v. Pankraz, 554 A.2d 974, 976 (Pa. Super. Ct. 1989).
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– Commonwealth v. Zellner, 407 A.2d 436, 439 (Pa. Super. Ct. 1979).
C. Consent
• 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. Kitchen, 814 A.2d 209, 213 (Pa. Super. Ct. 2002).
III. Displaying Obscene and Other Sexual Materials and Performances
A. Elements
• The display of any explicit sexual materials on any window, showcase,
newsstand, display rack, billboard, or in any business or commercial
establishment where minors, as a part of the general public or otherwise, are
or will probably be exposed to view all or any part of such materials, is
prohibited. 18 PA. CONS. STAT. § 5903(a)(1).
– Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919, 924 n.2 (Pa. Super. Ct. 1984).
B. The Defendant’s Mental State
• Only where the evidence demonstrates an accused’s awareness of the
character of the material alleged to be obscene may a conviction be sustained.
– Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919, 939 (Pa. Super. Ct. 1984).
C. “Explicit Sexual Materials” Defined
• “Explicit sexual materials” means materials that are obscene or:
(1) any picture, photograph, drawing, sculpture, motion picture film, or
similar visual representation or image of a person or portion of the human
body which depicts nudity, sexual conduct, or sadomasochistic abuse and
that is harmful to minors; or
(2) any book, pamphlet, magazine, printed matter however reproduced, or
sound recording that contains any matter enumerated in paragraph (1), or
explicit and detailed verbal descriptions or narrative accounts of sexual
excitement, sexual conduct, or sadomasochistic abuse and which, taken as
a whole, is harmful to minors.
– Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919, 924 n.2 (Pa. Super. Ct. 1984).
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D. “Harmful to Minors” Defined
• “Harmful to minors” means that quality of any description or representation,
in whatever form, of nudity, sexual conduct, sexual excitement, or
sadomasochistic abuse, when it:
(1) predominantly appeals to the prurient, shameful, or morbid interest of
minors; and
(2) is patently offensive to prevailing standards in the adult community as a
whole with respect to what is suitable material for minors; and
(3) is utterly without redeeming social importance for minors.
– Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919, 924 n.2 (Pa. Super. Ct. 1984).
IV. Endangering the Welfare of a Child
• A person is guilty of endangering the welfare of child if he or she is supervising a
child under 18 years of age and knowingly violates his or her duty to care for, protect,
or support the child. 18 PA. CONS. STAT. § 4304.
– Commonwealth v. Bishop, 742 A.2d 178, 190 (Pa. Super. Ct. 1999).
V. Indecent Assault
A. Elements
• A person is guilty of indecent assault if he or she has indecent contact with a
complainant who is less than 13 years of age. 18 PA. CONS. STAT. § 3126.
– Commonwealth v. Bishop, 742 A.2d 178, 190 (Pa. Super. Ct. 1999).
B. “Indecent Contact” Defined
• “Indecent contact” is defined as any touching of the sexual or other intimate
parts of a person for the purpose of arousing or gratifying sexual desire in
either person.
– Commonwealth v. Bishop, 742 A.2d 178, 190 (Pa. Super. Ct. 1999).
C. Aggravated Indecent Assault
• A person is guilty of aggravated indecent assault if he or she engages in
penetration, however slight, of the genitals or anus of a complainant who is
less than 13 years of age with a part of the person’s body for any purpose
other than good-faith medical, hygienic, or law-enforcement procedures. 18 PA.
CONS. STAT. § 3125.
– Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. Ct. 1999).
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VI. Involuntary Deviate Sexual Intercourse
A. Elements
• A person is guilty of involuntary deviate sexual intercourse if he or she
engages in deviate sexual intercourse by forcible compulsion with a person
who is less than 13 years of age. 18 PA. CONS. STAT. § 3123.
– Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. Ct. 1999).
• Involuntary deviate sexual intercourse is not a lesser-included offense of rape
and when there is charged one or more forcible penetrations of a man or
woman they are separate offenses.
– Commonwealth v. Hitchcock, 565 A.2d 1159, 1162 (Pa. 1989).
• Involuntary deviate sexual intercourse does not proscribe consensual oral or
anal intercourse, but rather acts of deviate sexual intercourse that are
involuntary; therefore, this classification does not discriminate against
unmarried adults, homosexual or otherwise, because the Commonwealth has a
strong interest in preventing people from being forced against their will to
submit to sexual conduct.
– Commonwealth v. Gautieri, 636 A.2d 1153, 1155-56 (Pa. Super. Ct. 1994).
B. “Deviate Sexual Intercourse” Defined
• “Deviate sexual intercourse” is defined as sexual intercourse per os or per
anus between human beings who are not husband or wife. 18 PA. CONS. STAT. §
3101.
– Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. Ct. 1999).
– Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa. 2002).
• The penetration of one’s mouth or tongue into the vaginal area of another
person constitutes deviate sexual intercourse.
– Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. Ct. 1999).
– Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa. 2002).
– Commonwealth v. Westcott, 523 A.2d 1140, 1145 (Pa. Super. Ct. 1987).
• Deviate sexual intercourse proscribes all types of sexual intercourse with
animals.
– Commonwealth v. Gautieri, 636 A.2d 1153, 1157 n.3 (Pa. Super. Ct. 1994).
VII. Indecent Exposure
• A person is guilty of indecent exposure if he or she exposes his or her genitals in 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.
CONS. STAT. § 3127.
– Commonwealth v. Bishop, 742 A.2d 178, 190 (Pa. Super. Ct. 1999).
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VIII. Rape
A. Elements
• A person commits a felony of the first degree when he engages in sexual
intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person
of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is unable to give
consent.
18 PA. CONS. STAT. ANN. § 3121.
– Commonwealth v. Lee, 638 A.2d 1006, 1010 (Pa. Super. Ct. 1994).
B. “Sexual Intercourse” Defined
• “Sexual intercourse,” in addition to its ordinary meaning, includes intercourse,
per os or per anus, with some penetration however slight.
– Commonwealth v. Hitchcock, 565 A.2d 1159, 1161 (Pa. 1989).
• Emission is not required.
– Commonwealth v. Hitchcock, 565 A.2d 1159, 1161 (Pa. 1989).
C. “Forcible Compulsion” Defined
• “Forcible compulsion” includes not only physical force or violence, but also
moral, psychological, or intellectual force used to compel a person to engage
in sexual intercourse against that person’s will.
– Commonwealth v. Frank, 577 A.2d 609, 618 (Pa. Super. Ct. 1990).
– Commonwealth v. Ruppert, 579 A.2d 966, 968 (Pa. Super. Ct. 1990).
1. Determination of Force
• The determination of whether moral, psychological, or intellectual
force exists in a given case is to be made in light of the totality of the
circumstances.
– Commonwealth v. Frank, 577 A.2d 609, 618 (Pa. Super. Ct. 1990).
– Commonwealth v. Ruppert, 579 A.2d 966, 968 (Pa. Super. Ct. 1990).
• Important factors to be considered include the respective ages of the
victim and the accused; the respective mental and physical conditions
of the victim and the accused; the atmosphere and the physical setting
in which the incident was alleged to have taken place; the extent to
which the accused may have been in a position of authority,
domination, or custodial control over the victim; and whether the
victim was under duress.
– Commonwealth v. Frank, 577 A.2d 609, 618-19 (Pa. Super. Ct. 1990).
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– Commonwealth v. Ruppert, 579 A.2d 966, 968 (Pa. Super. Ct. 1990).
2. Force and Children
• There is an element of forcible compulsion inherent in the situation in
which an adult, who is with a child who is younger, smaller, less
psychologically and emotionally mature, and less sophisticated than
the adult, instructs the child to submit to the performance of sexual
acts. This is especially so when the child knows and trusts the adult. In
such cases, forcible compulsion or the threat of forcible compulsion
derives from the respective capacities of the child and the adult
sufficient to induce the child to submit to the wishes of the adult
without the use of physical force or violence or the explicit threat of
physical force or violence.
– Commonwealth v. Frank, 577 A.2d 609, 619 (Pa. Super. Ct. 1990).
– Commonwealth v. Ruppert, 579 A.2d 966, 968 (Pa. Super. Ct. 1990).
D. Statutory Rape
• A person commits a felony of the first degree when he or she engages in
sexual intercourse with a complainant who is less than 13 years of age. 18 PA.
CONS. STAT. ANN. § 3121(a)(6).
– In re B.A.M., 806 A.2d 893, 894 (Pa. Super. Ct. 2002).
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PENNSYLVANIA
Mandatory Reporting: Who Must Report?
• Persons who, in the course of their employment, occupation, or practice of their profession
come into contact with children shall report or cause a report to be made when they have
reasonable cause to suspect, on the basis of their medical, professional, or other training and
experience, that a child coming before them in their professional or official capacity is an
abused child. 23 PA. CONS. STAT. ANN. § 6311.
– Commonwealth v. Askew, 666 A.2d 1062, 1065 (Pa. Super. Ct. 1995).
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PENNSYLVANIA
Search and Seizure of Electronic Evidence
A case with ++ indicates that although the subject matter is not child exploitation,
the principle presented may still apply.
I. Search Warrants
A. Probable Cause
• A warrant must describe the place to be searched and the items to be seized
with specificity, and the warrant must be supported by probable cause.
– Commonwealth v. Waltson,++ 724 A.2d 289, 292 (Pa. 1998).
1. Definitions
a. “Probable Cause”
• Probable cause to issue a search warrant has been defined as
those facts reasonably necessary to show that the items sought
are connected with criminal activity and the items will be
found in the place to be searched.
– Commonwealth v. Barba,++ 460 A.2d 1103, 1106 (Pa. Super. Ct. 1983).
– Commonwealth v. Ryan,++ 446 A.2d 277, 283 (Pa. Super. Ct. 1982).
b. “Reasonable Search” Defined
• The critical element in a reasonable search is not that the
possessor of the property is suspected of crime but that the
specific things to be searched for and seized are located on the
property to which entry is sought.
– Commonwealth v. Barba,++ 460 A.2d 1103, 1106 (Pa. Super. Ct. 1983).
2. Totality of the Circumstances Test
• Probable cause is determined based on the totality of the
circumstances.
– Commonwealth v. Dennis,++ 618 A.2d 972, 980 (Pa. Super. Ct. 1992).
– Commonwealth v. Flaherty,++ 583 A.2d 1175, 1177 (Pa. Super. Ct. 1990).
– Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549, 551 (Monroe County C.P.
1992).
– Commonwealth v. Waltson,++ 724 A.2d 289, 292 (Pa. 1998).
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3. Contents of the Affidavit
• Before a search warrant can properly be issued upon probable cause,
the affidavit must set forth the underlying circumstances from which
the informer concluded that the items to be seized were where he or
she said they were.
– Commonwealth v. Barba,++ 460 A.2d 1103, 1105 (Pa. Super. Ct. 1983).
– Commonwealth v. Flaherty,++ 583 A.2d 1175, 1177 (Pa. Super. Ct. 1990).
• The affidavit must also recite circumstances from which the issuing
authority can determine whether the informant is reliable or his or her
information credible.
– Commonwealth v. Barba,++ 460 A.2d 1103, 1105 (Pa. Super. Ct. 1983).
– Commonwealth v. Flaherty,++ 583 A.2d 1175, 1177 (Pa. Super. Ct. 1990).
4. Informants
a. Reliability
• With respect to the reliability of an informant, Pennsylvania
courts have delineated four criteria to be considered by the
issuing authority in his or her attempt to determine whether a
substantial basis exists for crediting the informant’s tip:
(1) Did the informant give prior reliable information?
(2) Was the informant’s story corroborated by any other
sources?
(3) Were the informant’s statements a declaration against
interest?
(4) Does the defendant’s reputation support the informant’s
tip?
– Commonwealth v. Barba,++ 460 A.2d 1103, 1105 (Pa. Super. Ct. 1983).
• There is no requirement that each criterion be met in order to
support a finding of reliability.
– Commonwealth v. Barba,++ 460 A.2d 1103, 1105-06 (Pa. Super. Ct.
1983).
b. Trustworthiness
• When an informant is not a paid, unknown tipster, but rather an
identified eyewitness to a crime who voluntarily reports his or
her observations to the police, his or her trustworthiness may
be presumed.
– Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549, 552 (Monroe
County C.P. 1992).
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5. False Information: The Defendant’s Burden
• If a defendant establishes by a preponderance of the evidence that a
false statement made knowingly, intentionally, or with reckless
disregard for the truth was included in a probable-cause affidavit, and
if it was material to establish probable cause, the false information
must be excised from the affidavit.
– Franks v. Delaware,++ 438 U.S. 154, 164-65 (1978).
6. Task of the Issuing Magistrate
• The task of the issuing magistrate is to make a common-sense decision
whether, given all the circumstances set forth in the affidavit,
including the veracity and basis of the knowledge of persons supplying
the information, there is sufficient information to conclude that
probable cause exists.
– Commonwealth v. Dennis,++ 618 A.2d 972, 981 (Pa. Super. Ct. 1992).
– Commonwealth v. Flaherty,++ 583 A.2d 1175, 1177 (Pa. Super. Ct. 1990).
– Commonwealth v. Glass,++ 754 A.2d 655, 661 (Pa. 2000).
– Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549, 551 (Monroe County C.P.
1992).
7. Particularity Requirement
• The particularity requirement is intended to proscribe general or
exploratory searches by requiring that searches be directed only
towards the specific items, persons, or places set forth in the warrant;
however, such warrants should be read in a common-sense fashion and
should not be invalidated by hypertechnical interpretations.
– Commonwealth v. Barba,++ 460 A.2d 1103, 1107 (Pa. Super. Ct. 1983).
• When an exact description of a particular item is not possible, a
generic description may suffice.
– Commonwealth v. Barba,++ 460 A.2d 1103, 1107 (Pa. Super. Ct. 1983).
B. Scope of Search
1. Generally
• Where a search warrant adequately describes the place to be searched
and the items to be seized, the scope of the search extends to the entire
area in which the object of the search may be found and properly
includes the opening and inspection of containers and other receptacles
where the object may be secreted.
– Commonwealth v. Waltson,++ 724 A.2d 289, 292 (Pa. 1998).
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2. Plain-View Doctrine
• It is sometimes permissible for law enforcement to seize items found
while executing a search warrant that names other objects if law
enforcement comes upon the evidence inadvertently, in a place where
they have a legal right to be at the time of discovery, and it must be
immediately apparent to them that the evidence is of incriminating
character.
– Commonwealth v. Stewart,++ 495 A.2d 584, 589 (Pa. Super. Ct. 1985).
C. Staleness
1. Generally
• It is well established in Pennsylvania that stale information cannot
supply the probable cause necessary for the issuance of a search
warrant. If, however, it is demonstrated that criminal conduct has in
fact continued, then the relevant information, in spite of its vintage,
may not be deemed stale.
– Commonwealth v. Dennis,++ 618 A.2d 972, 981 (Pa. Super. Ct. 1992).
• Courts have been reluctant to set a hard-and-fast rule as to what
constitutes staleness. Such a determination must be made on a case-by-
case basis.
– Commonwealth v. Dennis,++ 618 A.2d 972, 981 (Pa. Super. Ct. 1992).
– Commonwealth v. Ryan,++ 446 A.2d 277, 284 (Pa. Super. Ct. 1982).
• Mere lapse of time between discovery of criminal activity and issuance
of the warrant will not necessarily dissipate probable cause.
– Commonwealth v. Dennis,++ 618 A.2d 972, 981 (Pa. Super. Ct. 1992).
• A showing that the criminal activity is likely to have continued up to
the time of issuance of the warrant will render otherwise stale
information viable.
– Commonwealth v. Dennis,++ 618 A.2d 972, 981 (Pa. Super. Ct. 1992).
2. Factors to Consider
• The chief factors to consider when determining whether the
information supporting the issuance of a warrant has grown stale are:
(1) the quality and the nature of the seized evidence;
(2) the ease with which the evidence may be disposed of; and
(3) the lapse of time between the information and the warrant.
– Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549, 552 (Monroe County C.P.
1992).
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• Properly recited facts indicating activity of a protracted and continuous
nature make the passage of time less significant.
– Commonwealth v. Ryan,++ 446 A.2d 277, 284 (Pa. Super. Ct. 1982).
• The mere passing of time is itself alone not sufficient to determine the
question of staleness. The nature of items sought and their quantity is
also important.
– Commonwealth v. David,++ 445 A.2d 757, 758 (Pa. Super. Ct. 1982).
• Other considerations regard the character of the crime, the criminal,
the item to be seized, and the place to be searched.
– Commonwealth v. Shattuck,++ 14 Pa. D. & C.4th 549, 552 (Monroe County C.P.
1992).
II. Anticipatory Warrants
• An anticipatory search warrant is a warrant based upon an affidavit showing probable
cause that at some future time certain evidence of crime will be located at a specified
place.
– Commonwealth v. Glass,++ 754 A.2d 655, 656 (Pa. 2000).
A. Probable Cause
• Anticipatory search warrants pose no threat to settled views of probable cause
because the very nature of a search warrant is in a sense “anticipatory.”
Although probable cause unquestionably must exist at the time the warrant is
authorized, the magistrate’s assessment of probable cause, as well as the
ultimate question as to whether the warrant should issue, is distinctly forward-
looking.
– Commonwealth v. Glass,++ 754 A.2d 655, 665 (Pa. 2000).
B. Constitutionality
• Anticipatory warrants are not categorically prohibited by the Pennsylvania
constitution.
– Commonwealth v. Glass,++ 754 A.2d 655, 665 (Pa. 2000).
• Whether a particular anticipatory warrant should or should not be approved
depends upon the sufficiency of the averments in the individual case.
– Commonwealth v. Glass,++ 754 A.2d 655, 665 (Pa. 2000).
III. Types of Searches
A. Employer Searches
No state cases reported.
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B. Private Searches
• Once a private person violates another’s right of privacy, the government may
do the same thing as long as it does not exceed the bounds of the original
private search.
– Commonwealth v. Ridgeway, 44 Pa. D. & C.4th 51, 56 (Chester County C.P. 1999).
C. School Searches
• The accommodation of the privacy interests of schoolchildren with the
substantial need of teachers and administrators for freedom to maintain order
in the schools does not require strict adherence to the requirement that
searches be based on probable cause to believe that the subject of the search
has violated or is violating the law.
– Commonwealth v. Cass,++ 709 A.2d 350, 354 (Pa. 1998).
• The legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.
– Commonwealth v. Cass,++ 709 A.2d 350, 354 (Pa. 1998).
• Determining the reasonableness of any search involves a twofold inquiry.
First, one must consider whether the action was justified at its inception.
Second, one must determine whether the search as actually conducted was
reasonably related in scope to the circumstance that justified the interference
in the first place.
– Commonwealth v. Cass,++ 709 A.2d 350, 354 (Pa. 1998).
D. University-Campus Searches
See infra “School Searches,” Part III.C.
E. Warrantless Searches
1. Of a Home
• In a private home, searches and seizures without a warrant are
presumptively unreasonable.
– Commonwealth v. Roland,++ 637 A.2d 269, 270 (Pa. 1994).
• Absent probable cause and exigent circumstances, the entry of a home
without a warrant is prohibited under the Fourth Amendment.
– Commonwealth v. Roland,++ 637 A.2d 269, 270 (Pa. 1994).
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2. Exceptions
a. Exigent Circumstances
i. Burden
• The police bear a heavy burden when attempting to
demonstrate an urgent need that might justify
warrantless searches or arrests.
– Commonwealth v. Roland,++ 637 A.2d 269, 271 (Pa. 1994).
• Before agents of the government may invade the
sanctity of the home, the burden is on the government
to demonstrate exigent circumstances that overcome the
presumption of unreasonableness that attaches to all
warrantless home entries.
– Commonwealth v. Roland,++ 637 A.2d 269, 271 (Pa. 1994).
ii. Factors to Consider
• In determining whether exigent circumstances exist, a
number of factors are to be considered, including:
(1) the gravity of the offense;
(2) whether the suspect is reasonably believed to be
armed;
(3) whether there is above and beyond a clear showing
of probable cause;
(4) whether there is strong reason to believe that the
suspect is within the premises being entered;
(5) whether there is a likelihood that the suspect will
escape if not swiftly apprehended;
(6) whether the entry was peaceable; and
(7) the time of the entry.
These factors are to be balanced against one another in
determining whether the warrantless intrusion was
justified.
– Commonwealth v. Roland,++ 637 A.2d 269, 270-71 (Pa. 1994).
• Other factors may also be taken into account, such as
whether there is hot pursuit of a fleeing felon, a
likelihood that evidence will be destroyed if police take
the time to obtain a warrant, or a danger to police or
other persons inside or outside the dwelling.
– Commonwealth v. Roland,++ 637 A.2d 269, 271 (Pa. 1994).
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b. Consent
• Certain specifically established exceptions, one of which is a
valid consent, may render an otherwise illegal search
permissible.
– Commonwealth v. Cleckley,++ 738 A.2d 427, 429 (Pa. 1999).
– Commonwealth v. Gillespie,++ 821 A. 2d 1221, 1225 (Pa. 2003).
i. Burden
• It is the State’s burden to prove consent.
– Commonwealth v. Cleckley,++ 738 A.2d 427, 429 (Pa. 1999).
ii. Voluntariness
• For purposes of the Fourth Amendment, consent must
have been given voluntarily.
– Commonwealth v. Cleckley,++ 738 A.2d 427, 429 (Pa. 1999).
• Voluntariness is a question of fact to be determined
from the totality of the circumstances.
– Commonwealth v. Cleckley,++ 738 A.2d 427, 430 (Pa. 1999).
• While knowledge of the right to refuse consent is a
factor to consider in determining whether consent to
search was voluntarily and knowingly given, it is not
dispositive.
– Commonwealth v. Cleckley,++ 738 A.2d 427, 430 (Pa. 1999).
• When evaluating the voluntariness of a defendant’s
consent, the court considers:
(1) the defendant’s custodial status;
(2) the use of duress or coercive tactics by law-
enforcement personnel;
(3) the defendant’s knowledge of his or her right to
refuse to consent;
(4) the defendant’s education and intelligence;
(5) the defendant’s belief that no incriminating
evidence will be found; and
(6) the extent and level of the defendant’s cooperation
with the law-enforcement personnel.
– Commonwealth v. Cleckley,++ 738 A.2d 427, 433 n.7 (Pa. 1999).
– Commonwealth v. Gillespie,++ 821 A. 2d 1221, 1225 (Pa. 2003).
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IV. Temporary Detainment
• An individual may be stopped and briefly detained, provided the investigating officer
can point to specific and articulable facts that, in conjunction with the natural
inferences deriving therefrom, reasonably warrant the intrusion.
– Commonwealth v. Savich, 716 A.2d 1251, 1257 (Pa. Super. Ct. 1998).
• An investigative detention may property ripen into an arrest based on probable cause
when additional information confirming the earlier suspicion is uncovered. For
example, once an individual admits to having nude depictions of minors on videotape,
law enforcement has probable cause to arrest.
– Commonwealth v. Savich, 716 A.2d 1251, 1257 (Pa. Super. Ct. 1998).
V. Computer-Technician/Repairperson Discoveries
No state cases reported.
VI. Photo-Development Discoveries
No state cases reported.
VII. Criminal Forfeiture
No state cases reported.
VIII. Disciplinary Hearings for Federal and State Officers
No state cases reported.
IX. Probation and Parolee Rights
No state cases reported.
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PENNSYLVANIA
Jurisdiction and Nexus
I. Jurisdictional Nexus
No state cases reported.
II. Internet Nexus
• When the facts of a case reveal that sexual contact occurred in one county as a result
of the transmission of Internet solicitations sent from another county, even though the
offense culminated outside of the county from which the Internet message was sent,
the offense itself was necessarily predicated on action taken in another county.
– Commonwealth v. Kohler, 811 A.2d 1046, 1050 (Pa. Super. Ct. 2002).
III. State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction
A. State Jurisdiction
No state cases reported.
B. Federal Jurisdiction
No state cases reported.
C. Concurrent Jurisdiction
No state cases reported.
IV. Interstate Possession of Child Pornography
No state cases reported.
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PENNSYLVANIA
Discovery and Evidence
I. Timely Review of Evidence
No state cases reported.
II. Defense Requests for Copies of Child Pornography
No state cases reported.
III. Relevance of Evidence
• Evidence is relevant if it logically tends to establish a material fact in the case, tends
to make a fact at issue more or less probable, or supports a reasonable inference or
presumption regarding the existence of a material fact.
– Commonwealth v. Minerd, 753 A.2d 225, 230 (Pa. 2000).
IV. Date of Crime
A. Generally
• In the prosecution of crimes such as sodomy, the Commonwealth is not
required to prove the commission of the crime on the date laid in the
indictment, but rather, in order to sustain a conviction, to prove the
commission upon some other date, fixed with reasonable certainty and being
within the prescribed statutory period.
– Commonwealth v. Devlin, 333 A.2d 888, 890 (Pa. 1975).
– Commonwealth v. Jette, 818 A.2d 533, 535 (Pa. Super. Ct. 2003).
– Commonwealth v. McClucas, 516 A.2d 68, 69 (Pa. Super. Ct. 1986).
– Commonwealth v. Niemetz, 422 A.2d 1369, 1373 (Pa. Super. Ct. 1980).
– Commonwealth v. Rouse, 218 A.2d 100, 102 (Pa. Super. Ct. 1966).
– Commonwealth v. Yon, 341 A.2d 169, 171 (Pa. Super. Ct. 1975).
• The indictment must be drawn with reasonable clearness and certainty to
show the substance, time, and place of the alleged offense, so that a defendant
may be informed in an intelligent manner of what he or she is called upon to
answer.
– Commonwealth v. Yon, 341 A.2d 169, 171 (Pa. Super. Ct. 1975).
B. Child Victims
• Although the Commonwealth is required to establish the date of alleged
offenses with reasonable certainty, young children are not required to testify
regarding the exact dates of the sexual assault they have endured.
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– Commonwealth v. Vidmosko, 574 A.2d 96, 98 (Pa. Super. Ct. 1990).
• The Commonwealth must be allowed a reasonable measure of flexibility when
faced with the special difficulties involved in ascertaining the date of an
assault upon a young child.
– Commonwealth v. Jette, 818 A.2d 533, 535 (Pa. Super. Ct. 2003).
• Children are less likely to distinguish dates and time with specificity;
therefore, the fact that the victim cannot set a date for the crime should not be
fatal to the Commonwealth’s case, thus making the defendant virtually
immune from prosecution.
– Commonwealth v. Fanelli, 547 A.2d 1201, 1205 (Pa. Super. Ct. 1988).
V. Introduction of E-mails and Instant Messages into Evidence
A. Wiretapping and Electronic Surveillance Control Act
• A person is guilty of a felony of the third degree if he or she intentionally
intercepts, endeavors to intercept, or procures any other person to intercept or
endeavor to intercept any wire, electronic, or oral communication. PA.
WIRETAPPING & ELECTRONIC SURVEILLANCE CONTROL ACT § 5703.
– Commonwealth v. Proetto, 771 A.2d 823, 828 (Pa. Super. Ct. 2001).
• For an action to be in violation of the Act, the statements must have been
intercepted.
– Commonwealth v. Proetto, 771 A.2d 823, 828 (Pa. Super. Ct. 2001).
• The use of taped conversations secured through a legally authorized federal
wiretap is not in contravention of the Pennsylvania anti-wiretap statute, and
that any evidence disclosed by such means may be admissible in our courts.
– Commonwealth v. Sears, 616 A.2d 10, 14 (Pa. Super. Ct. 1992).
1. “Intercept” Defined
• The Act defines “intercept” as aural or other acquisition of the
contents of any wire, electronic, or oral communication through the
use of any electronic, mechanical, or other device.
– Commonwealth v. Proetto, 771 A.2d 823, 828 (Pa. Super. Ct. 2001).
• “Intercept” includes the point at which the contents of the
communication are monitored by investigative or law-enforcement
officials.
– Commonwealth v. Proetto, 771 A.2d 823, 828-29 (Pa. Super. Ct. 2001).
• Where a party receives information from a communication as a result
of being a direct party to the communication, there is no interception.
– Commonwealth v. Proetto, 771 A.2d 823, 831 (Pa. Super. Ct. 2001).
– Commonwealth v. Sears, 616 A.2d 10, 12 (Pa. Super. Ct. 1992).
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2. Consent
a. Generally
• It is not unlawful and no prior court approval is required for a
person to intercept a wire, electronic, or oral communication
where all parties to the communication have given prior
consent to such interception. PA. WIRETAPPING & ELECTRONIC
SURVEILLANCE CONTROL ACT § 5704.
– Commonwealth v. Proetto, 771 A.2d 823, 829 (Pa. Super. Ct. 2001).
– Commonwealth v. Sears, 616 A.2d 10, 12 (Pa. Super. Ct. 1992).
b. Internet Conversations
• An Internet conversation is unlike one in which a party is
engaging in a conversation over the telephone. While engaging
in a conversation over the telephone, a party would have no
reason to believe that the other party was taping the
conversation. Any reasonably intelligent person, savvy enough
to be using the Internet, however, would be aware of the fact
that messages are received in a recorded format, by their very
nature, and can be downloaded or printed by the party
receiving the message.
– Commonwealth v. Proetto, 771 A.2d 823, 829 (Pa. Super. Ct. 2001).
• By the very act of sending a communication over the Internet,
the party expressly consents to the recording of the message.
– Commonwealth v. Proetto, 771 A.2d 823, 829 (Pa. Super. Ct. 2001).
B. Hearsay/Authentication Issues
No state cases reported.
C. Technical Aspects of Electronic Evidence Regarding Admissibility
No state cases reported.
VI. Introduction of Text-Only Evidence: Expectation of Privacy
A. The Internet Analogized to Other Media
• E-mail transmissions are not unlike other forms of modern communication.
For example, if a sender of first-class mail seals an envelope and addresses it
to another person, the sender can reasonably expect the contents to remain
private and free from the eyes of the police absent a search warrant founded
upon probable cause; however, once the letter is received and opened, the
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destiny of the letter then lies in the control of the recipient of the letter, not the
sender, absent some legal privilege. Thus an E-mail message, like a letter,
cannot be afforded a reasonable expectation of privacy once that message is
received.
– Commonwealth v. Proetto, 771 A.2d 823, 831 (Pa. Super. Ct. 2001).
• Sending an E-mail or chatroom communication is analogous to leaving a
message on an answering machine. The sender knows that by the nature of
sending the communication a record of the communication, including the
substance of the communication, is made and can be downloaded, printed,
saved, or, in some cases, if not deleted by the receiver, will remain on the
receiver’s system. Accordingly, by the act of forwarding an E-mail or
communication via the Internet, the sender expressly consents by conduct to
the recording of the message.
– Commonwealth v. Proetto, 771 A.2d 823, 831 (Pa. Super. Ct. 2001).
B. Chatroom Conversations
• When a defendant engages in chatroom conversations, he or she does not
know to whom he or she is speaking.
– Commonwealth v. Proetto, 771 A.2d 823, 831 (Pa. Super. Ct. 2001).
• Oftentimes individuals engaging in chatroom conversations pretend to be
someone other than who they are; therefore, a defendant could not have a
reasonable expectation of privacy in engaging in chatroom conversations.
– Commonwealth v. Proetto, 771 A.2d 823, 831 (Pa. Super. Ct. 2001).
VII. Evidence Obtained from Internet Service Providers
A. Electronic Communications Privacy Act
No state cases reported.
B. Cable Act
No state cases reported.
C. Patriot Act
1. National Trap and Trace Authority
No state cases reported.
2. State-Court-Judge-Jurisdictional Limits
No state cases reported.
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VIII. Rape-Shield Law: Evidence of Victim’s Sexual Conduct
• Evidence of specific instances of the alleged victim’s past sexual conduct, opinion
evidence of the alleged victim’s past sexual conduct, and reputation evidence of the
alleged victim’s past sexual conduct is not admissible in sexual-offense prosecutions
except evidence of the alleged victim’s past sexual conduct with the defendant where
consent of the alleged victim is at issue and such evidence is otherwise admissible
pursuant to the rules of evidence.
– Commonwealth v. Wall, 606 A.2d 449, 455 (Pa. Super. Ct. 1992).
• Where the proffered evidence excluded by the Rape-Shield law is relevant, non-
cumulative, and more probative of the defense than prejudicial, it must be admitted.
– Commonwealth v. Wall, 606 A.2d 449, 455 (Pa. Super. Ct. 1992).
IX. Prior Bad Acts
A. Inadmissible
1. Generally
• It is black-letter law that evidence of one crime is inadmissible against
a defendant being tried for another crime because the fact of the
commission of one offense is not proof of the commission of another.
– Commonwealth v. Frank, 577 A.2d 609, 612 (Pa. Super. Ct. 1990).
– Commonwealth v. Green, 434 A.2d 137, 139 (Pa. Super. Ct. 1981).
– Commonwealth v. Kjersgaard, 419 A.2d 502, 503 (Pa. Super. Ct. 1980).
– Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa. Super. Ct. 1994).
2. Impeachment of the Defendant
a. Generally
• Evidence of prior criminal conduct is inadmissible to impeach
a defendant who testifies in his or her own defense.
– Commonwealth v. Wojtczak, 492 A.2d 1133, 1136 (Pa. Super. Ct. 1985).
b. Exceptions
• There are two general exceptions to the rule that evidence of
prior criminal conduct is inadmissible to impeach a defendant
who testifies in his or her own defense.
– Commonwealth v. Wojtczak, 492 A.2d 1133, 1136 (Pa. Super. Ct. 1985).
• The first is evidence that the defendant has been convicted of
crimen falsi.
– Commonwealth v. Wojtczak, 492 A.2d 1133, 1136 (Pa. Super. Ct. 1985).
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• The second exception arises if the defendant places his or her
character in issue by presenting evidence that a particular
aspect of his or her character is good. If he or she does so, then
evidence of prior criminal activity that served to rebut that
particular aspect of his or her character is admissible.
– Commonwealth v. Wojtczak, 492 A.2d 1133, 1136 (Pa. Super. Ct. 1985).
B. Admissible
• Some of the exceptions recognized by Pennsylvania Supreme Court as
legitimate bases for admitting evidence of a defendant’s distinct crimes
include, but are not limited to:
(1) motive;
(2) intent;
(3) absence of mistake or accident;
(4) a common scheme, plan, or design embracing commission of two or more
crimes so related to each other that proof of one naturally tends to prove
the others; or
(5) to establish identity of the person charged with the commission of the
crime on trial where there is such a logical connection between the crimes
that proof of one will naturally tend to show that the accused is the person
who committed the other;
(6) to impeach the credibility of a defendant who testifies in his trial;
(7) situations where a defendant's prior criminal history had been used by him
to threaten or intimidate the victim; or
(8) in situations where the distinct crimes were part of a chain or sequence of
events which formed the history of the case and were part of its natural
development.
– Commonwealth v. Green, 434 A.2d 137, 139 (Pa. Super. Ct. 1981).
– Commonwealth v. Kjersgaard, 419 A.2d 502, 503 (Pa. Super. Ct. 1980).
– Commonwealth v. Seiders, 614 A.2d 689, 691 (Pa. 1992).
• The fact that the other crime occurred in a jurisdiction other than that where
the instant offense occurred does not render evidence of such other crime
inadmissible.
– Commonwealth v. Kjersgaard, 419 A.2d 502, 505 (Pa. Super. Ct. 1980).
1. Common Plan or Scheme
• In order to fit within the exception of common plan, scheme, or
design, the Commonwealth must show more than that the crimes are of
the same class as the one for which the defendant is being tried.
Rather, there must be such a high correlation in the details of the
crimes that proof that the defendant committed one makes it unlikely
that anyone else but the defendant committed the others.
– Commonwealth v. Green, 434 A.2d 137, 140 (Pa. Super. Ct. 1981).
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• Evidence of prior crimes is admissible to prove other like crimes by
the accused so nearly identical in method as to earmark them as the
signature or handiwork of the accused.
– Commonwealth v. Frank, 577 A.2d 609, 612 (Pa. Super. Ct. 1990).
– Commonwealth v. Shively, 424 A.2d 1257, 1259 (Pa. 1981).
• The device used must be so unusual and distinctive as to be like a
signature.
– Commonwealth v. Frank, 577 A.2d 609, 612 (Pa. Super. Ct. 1990).
– Commonwealth v. Green, 434 A.2d 137, 141 (Pa. Super. Ct. 1981).
– Commonwealth v. Shively, 424 A.2d 1257, 1259 (Pa. 1981).
2. Establishing Identity of the Accused: Considering Remoteness
• Remoteness is a factor to be considered in determining if the prior
crime tends to show that the same person committed both crimes.
– Commonwealth v. Shively, 424 A.2d 1257, 1259 (Pa. 1981).
• The degree of similarity between the two incidents necessary to prove
common identity of the perpetrator is inversely proportional to the
time span between the two crimes.
– Commonwealth v. Shively, 424 A.2d 1257, 1259 (Pa. 1981).
3. Prior Sexual Crimes
a. Against the Same Victim
• Evidence of prior sexual relations between the defendant and
his or her victim is admissible to show a passion or propensity
for illicit sexual relations with the victim.
– Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa. Super. Ct. 1994).
• Evidence of prior crimes against the same victim is admissible
only when the prior act involves the same victim and the two
acts are sufficiently connected to suggest a continuing course
of conduct.
– Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa. Super. Ct. 1994).
• The prior conduct need not be precisely the same conduct as
that giving rise to the criminal charges.
– Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa. Super. Ct. 1994).
• The admissibility of the evidence is not affected by the fact that
the prior incidents occurred outside of the statute of limitations.
– Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa. Super. Ct. 1994).
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b. Against Persons Other than the Instant Victim
• Evidence of similar sexual crimes committed on or with
persons other than the victim of the crime being prosecuted is
inadmissible to show the accused’s depravity or propensity for
illicit conduct.
– Commonwealth v. Green, 434 A.2d 137, 140 (Pa. Super. Ct. 1981).
– Commonwealth v. Niemetz, 422 A.2d 1369, 1376 (Pa. Super. Ct. 1980).
– Commonwealth v. Seiders, 614 A.2d 689, 690 (Pa. 1992).
4. Hearsay Exceptions
a. Excited Utterance
i. Generally
• To qualify a statement as an excited utterance, the
statement must be a spontaneous declaration by a
person whose mind has been suddenly made subject to
an overpowering emotion caused by some unexpected
and shocking occurrence, which that person had just
participated in or closely witnessed, and made in
reference to some phase of the occurrence which he or
she perceived, and this declaration must be made so
near the occurrence both in time and place as to exclude
the likelihood of its having emanated in whole or in part
from his or her reflective faculties.
– Commonwealth v. Stohr, 522 A.2d 589, 591 (Pa. Super. Ct.
1987).
– Commonwealth v. Watson, 627 A.2d 785, 788 (Pa. Super. Ct.
1993).
ii. Spontaneity
(a) Generally
• The requirement of spontaneity is a question
that turns on the particular circumstances of
each case.
– Commonwealth v. Stohr, 522 A.2d 589, 592 (Pa. Super.
Ct. 1987).
(b) Child Declarant
• The requirement that the statement be
sufficiently contemporaneous is relaxed where
the child declarant is the victim of a sexual
assault.
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– Commonwealth v. Stohr, 522 A.2d 589, 592 (Pa. Super.
Ct. 1987).
b. Evidence of Complaint
• Evidence of a complaint of a sexual assault is competent
evidence, properly admitted when limited to establish that a
complaint was made and also to identify the occurrence
complained of with the offense charged.
– Commonwealth v. Stohr, 522 A.2d 589, 592 (Pa. Super. Ct. 1987).
c. Tender Years
i. Generally
• An out-of-court statement made by a child victim or
witness, who at the time the statement was made was 12
years of age or younger, describing physical abuse,
indecent contact, or sexual offenses performed with or
on the child by another, not otherwise admissible by
statute or rule of evidence, is admissible in evidence in
any criminal proceeding if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content, and
circumstances of the statement provide sufficient
indicia of reliability, and
(2) the child either testifies at the proceeding or is
unavailable as a witness and there is corroborative
evidence of the act.
– Commonwealth v. Bishop, 742 A.2d 178, 183-84 (Pa. Super. Ct.
1999).
– Commonwealth v. Crossley, 711 A.2d 1025, 1026 (Pa. Super. Ct.
1998).
ii. Reliability
• The test for reliability includes consideration of the
following factors, along with any others the court may
deem appropriate:
(1) the spontaneity and consistent repetition of the
statement;
(2) the mental state of the declarant;
(3) the use of terminology unexpected of a child of
similar age; and
(4) the lack of motive to fabricate.
– Commonwealth v. Crossley, 711 A.2d 1025, 1027 n.1 (Pa. Super.
Ct. 1998).
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iii. Notification of Adverse Party
• A statement otherwise admissible under the tender-
years exception shall not be received into evidence
unless the proponent of the statement notifies the
adverse part of the proponent’s intention to offer the
statement and of the particulars of the statement
sufficiently in advance of the proceeding to provide the
adverse party with a fair opportunity to prepare to meet
the statement.
– Commonwealth v. Bishop, 742 A.2d 178, 184 (Pa. Super. Ct.
1999).
– Commonwealth v. Crossley, 711 A.2d 1025, 1026 (Pa. Super. Ct.
1998).
X. Prejudicial Effect v. Probative Value
A. Generally
• Even logically relevant evidence that, under the circumstances of a given case,
is more prejudicial than probative, may be excluded without violating a
defendant’s right to confrontation and cross-examination.
– Commonwealth v. Wall, 606 A.2d 449, 464 (Pa. Super. Ct. 1992).
B. Evidence of Prior Crimes
• Even though evidence of prior crimes might be relevant, its admission must be
based on a balancing of several considerations: on the one hand, the actual
need for the evidence in the light of the issues and the other evidence available
to the prosecution, the convincingness of the evidence that other crimes were
committed and that the accused was the actor, and the strength or weakness of
the other crimes evidence in support of the issue, and on the other hand, the
degree to which the jury would probably be roused by the evidence to
overmastering hostility.
– Commonwealth v. Kjersgaard, 419 A.2d 502, 505 (Pa. Super. Ct. 1980).
• When the evidence is relevant and important to one of these five issues, it is
generally conceded that the prejudicial effect may be outweighed by the
probative value.
– Commonwealth v. Kjersgaard, 419 A.2d 502, 505 (Pa. Super. Ct. 1980).
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XII. Witness Testimony
A. Child Witnesses: Competence
1. Generally
• Competence is the rule and incompetence the exception.
– Commonwealth v. Ault, 323 A.2d 33, 34 (Pa. Super. Ct. 1974).
– Commonwealth v. Bishop, 742 A.2d 178, 186 (Pa. Super. Ct. 1999).
– Commonwealth v. D.J.A., 800 A.2d 965, 969 (Pa. Super. Ct. 2002).
– Commonwealth v. Pankraz, 554 A.2d 974, 977 (Pa. Super. Ct. 1989).
– Commonwealth v. R.P.S., 737 A.2d 747, 749 (Pa. Super. Ct. 1999).
– Commonwealth v. Stohr, 522 A.2d 589, 591 (Pa. Super. Ct. 1987).
2. Burden
• The burden to show incompetence lies upon the party asserting it and
the trial judge’s determination of mental maturity will not be reversed
absent a finding of abuse of discretion.
– Commonwealth v. Ault, 323 A.2d 33, 34 (Pa. Super. Ct. 1974).
– Commonwealth v. Bishop, 742 A.2d 178, 186 (Pa. Super. Ct. 1999).
– Commonwealth v. D.J.A., 800 A.2d 965, 969 (Pa. Super. Ct. 2002).
– Commonwealth v. Pankraz, 554 A.2d 974, 977 (Pa. Super. Ct. 1989).
– Commonwealth v. R.P.S., 737 A.2d 747, 749 (Pa. Super. Ct. 1999).
– Commonwealth v. Stohr, 522 A.2d 589, 591 (Pa. Super. Ct. 1987).
3. Judicial Inquiry into the Child’s Competence
• When a proposed witness is under 14 years of age, there must be a
searching judicial inquiry as to mental capacity.
– Commonwealth v. Bishop, 742 A.2d 178, 186 (Pa. Super. Ct. 1999).
– Commonwealth v. D.J.A., 800 A.2d 965, 969 (Pa. Super. Ct. 2002).
– Commonwealth v. Pankraz, 554 A.2d 974, 977 (Pa. Super. Ct. 1989).
– Commonwealth v. R.P.S., 737 A.2d 747, 749 (Pa. Super. Ct. 1999).
– Commonwealth v. Stohr, 522 A.2d 589, 591 (Pa. Super. Ct. 1987).
• The inquiry will probe the capacity to communicate, observe, and
remember, and a consciousness of a duty to speak the truth in
proportion to the witness’s chronological immaturity.
– Commonwealth v. Bishop, 742 A.2d 178, 186 (Pa. Super. Ct. 1999).
– Commonwealth v. Champagne, 306 A.2d 914, 915 (Pa. Super. Ct. 1973).
– Commonwealth v. D.J.A., 800 A.2d 965, 969 (Pa. Super. Ct. 2002).
– Commonwealth v. Pankraz, 554 A.2d 974, 978 (Pa. Super. Ct. 1989).
– Commonwealth v. R.P.S., 737 A.2d 747, 749 (Pa. Super. Ct. 1999).
– Commonwealth v. Stohr, 522 A.2d 589, 591 (Pa. Super. Ct. 1987).
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B. Expert Testimony
1. Admissibility
• The key criteria in determining whether expert testimony is admissible
is the purpose for which the testimony is offered.
– Commonwealth v. Hernandez, 615 A.2d 1337, 1340 (Pa. Super. Ct. 1992).
• Expert testimony is admissible to aid the jury when the subject matter
is distinctly related to a science, skill, or occupation that is beyond the
knowledge or experience of an average layperson.
– Commonwealth v. Balodis, 747 A.2d 341, 345 (Pa. 2000).
– Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa. Super. Ct. 1997).
– Commonwealth v. Minerd, 753 A.2d 225, 230 (Pa. 2000).
2. Inadmissible
a. Credibility
• If it is offered solely to sustain the credibility of the victim, it
should not be admitted.
– Commonwealth v. Hernandez, 615 A.2d 1337, 1340 (Pa. Super. Ct. 1992).
• Expert testimony may not be used to bolster the credibility of
witnesses because witness credibility is solely within the
province of the jury.
– Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa. Super. Ct. 1997).
b. Veracity
• Expert testimony as to the veracity of a particular class of
people, of which the victim is a member, is inadmissible.
– Commonwealth v. Balodis, 747 A.2d 341, 345 (Pa. 2000).
c. Common Knowledge
• Expert testimony is not admissible where the issue involves a
matter of common knowledge.
– Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa. Super. Ct. 1997).
– Commonwealth v. Minerd, 753 A.2d 225, 230 (Pa. 2000).
d. Child Sexual Abuse
• Expert testimony regarding the behavior patterns of victims of
child sexual abuse, or the dynamics of interfamily sexual abuse
and the behavior patterns of the child-victim, is inadmissible
when offered to explain the conduct of a witness/victim.
– Commonwealth v. Hernandez, 615 A.2d 1337, 1340 (Pa. Super. Ct. 1992).
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• It is error to admit expert testimony that young children do not
usually fabricate stories of sexual abuse, in that it is a direct
attempt to establish the victim’s credibility.
– Commonwealth v. Hernandez, 615 A.2d 1337, 1340 (Pa. Super. Ct. 1992).
e. Sexual Assault
• Pennsylvania courts have generally excluded expert testimony
that discusses behavior patterns that are common to victims of
sexual assault because such testimony encroaches upon the
jury’s function of evaluating witness credibility.
– Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa. Super. Ct. 1997).
XII. Sexual-Assault-Counselor Privilege
A. Generally
• The statutory sexual-assault-counselor privilege prevents sexual-assault
counselors from disclosing confidential communications made to them by the
victims of sex-related crimes. 42 PA. CONS. STAT. ANN. § 5945.1(a).
– Commonwealth v. Askew, 666 A.2d 1062, 1064 (Pa. Super. Ct. 1995).
– Commonwealth v. Davis, 674 A.2d 214, 215 (Pa. 1996).
B. “Confidential Communication” Defined
• “Confidential communication” is defined as all information, oral or written,
transmitted between a victim of sexual assault and a sexual-assault counselor
in the course of their relationship, including, but not limited to, any advice,
reports, statistical data, memoranda, working papers, records, or the like,
given or made during that relationship.
– Commonwealth v. Askew, 666 A.2d 1062, 1064 (Pa. Super. Ct. 1995).
C. Waiver of Privilege
• The privilege is waived when the Commonwealth is accorded access to the
information that the Legislature has intended to protect as confidential. In
such a situation, the statutory privilege must yield to the defendant’s rights of
confrontation and compulsory process.
– Commonwealth v. Davis, 674 A.2d 214, 216 (Pa. 1996).
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PENNSYLVANIA
Age of Child Victim
I. Proving a Child’s Age
• In trials and hearings upon charges of sexual offenses, knowledge of the minor’s age
is presumed in the absence of proof to the contrary. 18 PA. CONS. STAT. § 3125(a).
– Commonwealth v. Zellner, 407 A.2d 436, 439 (Pa. Super. Ct. 1979).
II. The Defendant’s Knowledge of a Child’s Age
• It is no defense that the defendant did not know the age of the child.
– Commonwealth v. Lebo, 795 A.2d 987, 993 (Pa. Super. Ct. 2002).
– Commonwealth v. Savich, 716 A.2d 1251, 1254 n.1 (Pa. Super. Ct. 1998).
• Neither a misrepresentation of age by the child nor a bona fide belief that the person
is over the specified age is a defense.
– Commonwealth v. Lebo, 795 A.2d 987, 993 (Pa. Super. Ct. 2002).
– Commonwealth v. Savich, 716 A.2d 1251, 1254 n.1 (Pa. Super. Ct. 1998).
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PENNSYLVANIA
Multiple Counts
I. What Constitutes an Item of Child Pornography?
No state cases reported.
II. Lesser-Included Offenses
• Where the elements of one crime as charged are subsumed in the elements of the
other crime and neither offense requires proof that the other does not, the crimes are
greater- and lesser-included offenses.
– Commonwealth v. Gatling, 807 A.2d 890, 899 (Pa. 2002).
• Involuntary deviate sexual intercourse is not a lesser-included offense of rape and
when there is charged one or more forcible penetrations of a man or woman, each is a
separate offense.
– Commonwealth v. Hitchcock, 565 A.2d 1159, 1162 (Pa. 1989).
III. Double Jeopardy
A. Generally
• When the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one is whether each provision requires proof of a fact that the
other does not.
– Commonwealth v. Adams, 442 A.2d 277, 279 (Pa. Super. Ct. 1982).
B. Application
• When a criminal act has been committed, broken off, and then resumed, at
least two crimes have occurred and sentences may be imposed for each.
– Commonwealth v. Gatling, 807 A.2d 890, 898 (Pa. 2002).
• Although rape and involuntary deviate sexual intercourse may constitute the
same crime for the purposes of the double-jeopardy clause, where the
defendant’s actions constitute separate injuries to the peace and dignity of the
Commonwealth, then each separate act may be punished separately.
– Commonwealth v. Adams, 442 A.2d 277, 279 (Pa. Super. Ct. 1982).
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C. Concurrent Sentences
• Concurrent sentences are cumulative for purposes of double jeopardy.
– Commonwealth v. Lee, 638 A.2d 1006, 1009 n.3 (Pa. Super. Ct. 1994).
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PENNSYLVANIA
Defenses
I. Age
A. Victim
• It is no defense that the defendant did not know the age of the child.
– Commonwealth v. Lebo, 795 A.2d 987, 993 (Pa. Super. Ct. 2002).
– Commonwealth v. Savich, 716 A.2d 1251, 1254 n.1 (Pa. Super. Ct. 1998).
• Neither a misrepresentation of age by the child nor a bona fide belief that the
person is over the specified age is a defense.
– Commonwealth v. Lebo, 795 A.2d 987, 993 (Pa. Super. Ct. 2002).
– Commonwealth v. Savich, 716 A.2d 1251, 1254 n.1 (Pa. Super. Ct. 1998).
B. Defendant
No state cases reported.
II. Consent
A. Corruption of Minors
• 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. Kitchen, 814 A.2d 209, 213 (Pa. Super. Ct. 2002).
B. Child Pornography
• The child-pornography statute is protective in purpose and the consent of a
child victimized by having pornographic pictures taken of him or her is of no
moment.
– Commonwealth v. Kitchen, 814 A.2d 209, 213 (Pa. Super. Ct. 2002).
• No one can legally take pornographic photographs of a child, regardless of
whether the child consents.
– Commonwealth v. Kitchen, 814 A.2d 209, 213 (Pa. Super. Ct. 2002).
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III. Diminished Capacity
A. Addiction to the Internet
No state cases reported.
B. Insanity
No state cases reported.
IV. Entrapment
• A public law-enforcement official or a person acting in cooperation with such an
official perpetrates an entrapment if for the purpose of obtaining evidence of the
commission of an offense, he or she induces or encourages another person to engage
in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such
conduct is not prohibited, or
(2) employing methods of persuasion or inducement that create a substantial risk such
an offense will be committed by persons other than those who are ready to
commit it.
– Commonwealth v. Lebo, 795 A.2d 987, 993 (Pa. Super. Ct. 2002).
• A person prosecuted for an offense will be acquitted if he or she proves by a
preponderance of evidence that his or her conduct occurred in response to an
entrapment.
– Commonwealth v. Lebo, 795 A.2d 987, 993 (Pa. Super. Ct. 2002).
V. First Amendment
A. Obscenity
• There is no fundamental right to protection from prosecution for publication
of materials abusive of First Amendment rights, such as obscenity.
– Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919, 933 (Pa. Super Ct. 1984).
B. Materials Not Suitable for Children
• Because of the Commonwealth’s exigent interest in preventing the
distribution of objectionable material to children, the Commonwealth can
exercise its power to protect the health, safety, welfare, and morals of its
community by barring the distribution to children of books recognized to be
suitable for adults.
– Am. Booksellers Ass’n, Inc. v. Rendell, 481 A.2d 919, 933 (Pa. Super Ct. 1984).
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VI. Fourth Amendment
A. Generally
• The protection of the Fourth Amendment does not depend on a property right
in the invaded place but does depend on whether the person who claims the
protection of the Amendment has a legitimate expectation of privacy in the
invaded place.
– Commonwealth v. Proetto, 771 A.2d 823, 830 (Pa. Super. Ct. 2001).
B. Application
1. Sexual Offenses Generally
• Privacy can extend only to those cases where conduct is consensual.
– Commonwealth v. Gautieri, 636 A.2d 1153, 1156 (Pa. Super. Ct. 1994).
2. Chatroom Conversations
• A defendant does not have a reasonable expectation of privacy in his
or her chatroom conversations.
– Commonwealth v. Proetto, 771 A.2d 823, 831 (Pa. Super. Ct. 2001).
3. Producing Child Pornography
• Even if there is proof that the minor used to produce child
pornography is married to the producer of the child pornography, such
conduct would still not be excused.
– Commonwealth v. Kitchen, 814 A.2d 209, 213 (Pa. Super. Ct. 2002).
VII. Impossibility
A. Factual
No state cases reported.
B. Legal
No state cases reported.
VIII. Manufacturing Jurisdiction
No state cases reported.
IX. Outrageous Conduct
No state cases reported.
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X. Researcher
No state cases reported.
XI. Sexual Orientation
No state cases reported.
XII. Sixth Amendment
• The Sixth Amendment to the U.S. Constitution ensures that in all criminal
prosecutions, the accused shall enjoy the right to be confronted with the witnesses
against him or her and to have compulsory process for obtaining witnesses in his or
her favor.
– Commonwealth v. Wall, 606 A.2d 449, 455 (Pa. Super. Ct. 1992).
• Article I, § 9 of the Pennsylvania state constitution guarantees an accused the right to
meet his or her accusers in all criminal prosecutions.
– Commonwealth v. Ludwig, 594 A.2d 281, 282 (Pa. 1991).
• The right of a defendant to confront an adverse witness is not absolute and must
occasionally give way to considerations of public policy and necessities of the case.
– Commonwealth v. Campion, 672 A.2d 1328, 1331 (Pa. Super. Ct. 1996).
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PENNSYLVANIA
Sentencing Issues
I. Guidelines
A. Sentencing Code
• In determining the sentence to be imposed, the court shall, except where a
mandatory minimum applies, consider and select one or more of the following
alternatives:
(1) an order of probation;
(2) a determination of guilt without further penalty;
(3) partial confinement;
(4) total confinement; or
(5) a fine.
42 PA. CONS. STAT. § 9721(a).
– Commonwealth v. Frazier, 500 A.2d 158, 159 (Pa. Super. Ct. 1985).
• When choosing from among these alternatives, the sentencing court must
consider the particular circumstances of the offense and the character of the
defendant in reaching its determination.
– Commonwealth v. Frazier, 500 A.2d 158, 159 (Pa. Super. Ct. 1985).
B. Other Considerations
1. Generally
• A sentence must be imposed based on the minimum amount of
confinement that is consistent with the gravity of the offense, the need
for public protection, and the rehabilitative needs of the defendant.
– Commonwealth v. Frazier, 500 A.2d 158, 159 (Pa. Super. Ct. 1985).
– Commonwealth v. Jones, 565 A.2d 732, 733 (Pa. 1989).
• The sentencing decision focuses on the well-recognized concerns for
deterrence, retribution, and rehabilitation. In dealing with such an
equation, reasonable people can obviously differ and thus the law has
seized upon the wise decision to give great deference to the trial
judge’s decision in this area.
– Commonwealth v. Jones, 565 A.2d 732, 734 (Pa. 1989).
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2. Rehabilitation
a. Generally
• Among those factors used to determine a defendant’s potential
for rehabilitation is his or her manifestation of social
conscience and responsibility through contrition, repentance,
and cooperation with law-enforcement agencies.
– Commonwealth v. Frazier, 500 A.2d 158, 160 (Pa. Super. Ct. 1985).
b. Sex-Offender Treatment
• To enable rehabilitation for sex offenders, treatment is made
available.
– Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904, 913 (Pa. Commw.
Ct. 2003).
• To encourage offenders to avail themselves of the opportunity
for treatment, early release through parole is used as an
incentive.
– Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904, 913 (Pa. Commw.
Ct. 2003).
• An offender who declines treatment is subjected to no greater
burden than that imposed by the sentencing judge; however, an
offender who accepts treatment may qualify for release before
this maximum date.
– Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904, 913 (Pa. Commw.
Ct. 2003).
II. Punishment of Multiple Similar Acts
A. Generally
• When a criminal act has been committed, broken off, and then resumed, at
least two crimes have occurred and sentences may be imposed for each.
– Commonwealth v. Gatling, 807 A.2d 890, 899 (Pa. 2002).
B. Application
• Photographing children in violation of Pennsylvania law and possession of
child pornography do not merge for purposes of sentencing.
– Commonwealth v. Kitchen, 814 A.2d 209, 215 (Pa. Super. Ct. 2002).
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III. Concurrent and Consecutive Sentences
• The current rule requires that the sentencing judge state whether multiple sentences
imposed at the same time are to run concurrently or consecutively. PA. R. CRIM. P. 705.
– Commonwealth v. Moran, 823 A.2d 923 (Pa. Super. Ct. 2003).
IV. Enhancement
A. Age of Victim
No state cases reported.
B. Distribution
No state cases reported.
C. Number of Images
No state cases reported.
D. Pattern of Activity for Sexual Exploitation
• In the instant case, the defendant was given a long sentence because of his
exceptionally long rap sheet and peculiar involvement with child
pornography.
– Commonwealth v. Gaerttner, 649 A.2d 139, 142 (Pa. Super. Ct. 1994).
E. Sadistic, Masochistic, or Violent Material
No state cases reported.
F. Use of Computers
No state cases reported.
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PENNSYLVANIA
Supervised Release
I. Parole
• Under Pennsylvania Law, an offender has no right to a grant of parole. Rather, parole
is a matter of legislative grace.
– Heckman v. Pa. Bd. of Probation & Parole, 744 A.2d 371, 372 (Pa. Commonw. Ct. 2000).
• Parole can only be granted when it appears that the interests of the Commonwealth
will not be injured.
– Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904, 913 (Pa. Commw. Ct. 2003).
• Persons incarcerated in a state institution for enumerated sexual offenses involving
minors will not be eligible for parole unless they have participated in a Department of
Corrections program of counseling or therapy designed for incarcerated sex
offenders. 42 PA. CONS. STAT. ANN. § 9719.1.
– Evans v. Pa. Bd. of Probation & Parole, 820 A.2d 904, 906 (Pa. Commw. Ct. 2003).
II. Megan’s Law
A. Registration
• The registration requirements of Megan’s Law are essentially remedial and
non-punitive; therefore, there is no constitutional violation.
– Commonwealth v. Bannigan, 60 Pa. D & C.4th 55, 81 (Bucks County C.P. 2001).
• While the registration provisions pose the inconvenience of having to verify
one’s residence in person, the act of registering is essentially administrative.
– Commonwealth v. Bannigan, 60 Pa. D & C.4th 55, 80 (Bucks County C.P. 2001).
• The act of registering annually with a discrete government entity, which is not
authorized to release information to the community at large, is not equivalent
to stigmatization or banishment.
– Commonwealth v. Bannigan, 60 Pa. D & C.4th 55, 80 (Bucks County C.P. 2001).
• The practical effect of registration does not impact an offender’s ability to
become gainfully employed nor does it impair an offender’s ability to obtain
housing.
– Commonwealth v. Bannigan, 60 Pa. D & C.4th 55, 80 (Bucks County C.P. 2001).
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B. Sexually Violent Predators
1. Definition
• A “sexually violent predator” is a person who has been convicted of a
sexually violent offense and who is determined to be a sexually violent
predator due to a mental abnormality or personality disorder that
makes the person likely to engage in predatory sexually violent
offenses. 42 PA. C.S. § 9792.
– Commonwealth v. Bannigan, 60 Pa. D & C.4th 55, 59 (Bucks County C.P. 2001).
– Commonwealth v. Krouse, 799 A.2d 835, 838 (Pa. Super. Ct. 2002).
2. Assessment of Offender
• The assessment of an offender, to see if he or she qualifies as a
sexually violent predator, includes an examination of the following
factors:
(1) facts of the current offense, including:
(a) whether the offense involved multiple victims;
(b) whether the individual exceeded the means necessary to
achieve the offense;
(c) nature of the sexual contact with the victim;
(d) relationship of the individual to the victim;
(e) age of the victim;
(f) whether the offense included a display of unusual cruelty by
the individual during the commission of the crime; and
(g) the mental capacity of the victim;
(2) prior offense history, including:
(a) the individual’s prior criminal record;
(b) whether the individual completed any prior sentences; and
(c) whether the individual participated in available programs for
sexual offenders;
(3) characteristics of the individual, including:
(a) age of the individual;
(b) use of illegal drugs by the individual;
(c) any mental illness, mental disability, or mental abnormality;
and
(d) behavioral characteristics that contribute to the individual’s
conduct; and
(4) factors that are supported in a sexual offender assessment filed as
criteria reasonably related to the risk of reoffense.
42 PA. C.S. § 9795.4(b).
– Commonwealth v. Krouse, 799 A.2d 835, 839 (Pa. Super. Ct. 2002).
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3. Hearing
a. Burden
• The burden of persuasion for determining whether an offender
is a sexually violent predator rests with the Commonwealth.
– Commonwealth v. Bannigan, 60 Pa. D & C.4th 55, 58 (Bucks County C.P.
2001).
• The Commonwealth bears the burden of proving that the
offender should be classified as a sexually violent predator by
clear and convincing evidence. 42 PA. C.S. § 9795.4(e)(3).
– Commonwealth v. Krouse, 799 A.2d 835, 839 (Pa. Super. Ct. 2002); but
see Commonwealth v. Bannigan, 60 Pa. D & C.4th 55 (Bucks County C.P.
2001) (holding that the “clear and convincing” standard of proof fails
adequately to prove the procedural due process protections recognized by
the U.S. and Pennsylvania constitutions and that the interests of an
offender jeopardized by the sexually violent predator classification
warrant a “beyond a reasonable doubt” standard of proof).
b. Findings
• Even though the Pennsylvania statute does not specifically
require the court to make specific findings of fact regarding the
findings necessary for a sexually violent predator
determination, the Pennsylvania Superior Court has concluded
that a trial court should include on the record its reasons for
finding the defendant to be a sexually violent predator in
relation to the statutory factors.
– Commonwealth v. Krouse, 799 A.2d 835, 843 (Pa. Super. Ct. 2002).
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