PENNSYLVANIA RECORD

A state appellate court panel has upheld a finding of guilt against two western

Pennsylvania middle school boys who were adjudicated delinquent in juvenile court following an incident of indecent exposure.

In a non-precedential decision filed on May 17, the three-judge Superior Court panel affirmed a May 1, 2007, order of the Allegheny County Court of Common Pleas’ Juvenile Division that ruled against two Harrison Middle School students, identified only as “Q.R.” and “P.J.,” who had been accused by two girls of pulling their pants down in class and showing their genitals to the females.

The incident, which occurred during the 2005-06 school year, was reported to both a teacher and a relative of one of the victim’s, while the second victim came forward about a month later, the record shows.

The commonwealth ended up charging “Q.R.” with indecent assault and indecent exposure, and a juvenile court judge subsequently adjudicated the boy delinquent, which is the juvenile equivalent of a guilty verdict.

The boy was placed on probation and ordered to participate in something called the “Safe Program.”

A lawyer representing “Q.R.” soon filed an appeal of the adjudication, but the court waived the appeals issues after the attorney failed to file a timely concise statement of errors complained on appeal, according to the court record.

The attorney then filed for reinstatement of his client’s direct appeal rights, which the trial court again denied.

The Superior Court, however, soon vacated that order, and allowed the appeal to proceed, but with an order that new counsel be assigned to the boy.

The appellate court issued an opinion in July 2011 addressing the merits of the boy’s appeal issue, which was whether the evidence presented in the case was insufficient to sustain his adjudication beyond a reasonable doubt for indecent exposure.

The boy’s new lawyer essentially argued that Victim 1 testified only that she saw “private parts,” and that Victim 2 did not expressly state that she had seen exposed body parts or skin.

The attorney representing the boy argued that testimony referencing “exposed private parts” is inadequate to sustain an indecent exposure adjudication.

At the crux of the issue was the fact that the two girls who alleged they were exposed to the boys’ genitals are Russian nationals who had trouble communicating in English, the record shows.

The Superior Court panel, however, disagreed with the lawyer’s contention, writing that the court, “sitting as the finder of fact, could reasonably infer from this record that Appellant exposed his genitals and did so in a public place.”

The appeals judges rejected the boy’s attorney’s reliance on a case called Commonwealth v. DeWalt, in which the court stated victims were required to testify in “exact language that they observed exposed genitals and identify them in the most explicit terms possible.”

What made this case difficult, however, was that the two victims had a limited grasp of the English language, coupled with the fact that they were “incredibly nervous and embarrassed” while testifying in juvenile court, the Superior Court decision states.

During the adjudication hearing, the girls testified through the aid of an interpreter.

Victim 1 described the two boys as having had their underpants at “mid-thigh level,” further indicating that she saw “private parts.”

Defense counsel, however, pressed further, specifically asking the victim if she had witnessed an actual penis exposure, to which she responded she didn’t understand the word “penis,” the decision states.

The appeals judges ultimately ruled that the adjudication against the two middle school boys could stand, since the evidence clearly showed “appellant pulled his pants and underwear to the mid-thigh area in the middle of a school classroom filled with children.

“We reject Appellant’s reliance on DeWalt for the proposition that a victim must use the precise words ‘penis’ or ‘scrotum’ when testifying about the exposure,” the judges wrote. “Appellant cannot stretch DeWalt to require that a victim must see the defendant’s genitals and identify them by name.

“To the contrary, the indecent exposure statute expressly requires only exposure of genitals in ‘any public place or in any place where there are present other persons under the circumstances in which he … knows or should know that this conduct is likely to offend, affront or alarm.’”

The court went on to write that the portion of the DeWalt cited by the boy’s attorney simply stands for the “common-sense requirement that the Commonwealth must produce evidence the defendant exposed his genitals.”

The non-precedential decision was penned by Superior Court Judge Susan Peikes Gantman.

Judge Paula Francisco Ott and Senior Judge James J. Fitzgerald, III, also participated in the decision.