J-S22021-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                      Appellee           :
                                         :
                      v.                 :
                                         :
ANTHONY J. KUSHMANICK, IV,               :
                                         :
                      Appellant          :     No. 1062 MDA 2015

            Appeal from the Judgment of Sentence December 17, 2014
                in the Court of Common Pleas of Lebanon County
               Criminal Division at No(s): CP-38-CR-0000456-2014

BEFORE:       MUNDY, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 20, 2016

      Anthony J. Kushmanick, IV (Appellant) appeals from the judgment of

sentence imposed following his convictions for two counts of sexual abuse of

children.     Because the Commonwealth offered insufficient evidence to

sustain his convictions, we vacate Appellant’s judgment of sentence and

discharge him.

      The trial court summarized the background underlying this matter as

follows.

             In the early spring of 2013, [Appellant] began dating S.C.
      At the time he was 18-19 years old. In the beginning of their
      relationship, S.C. was only 16 years of age. S.C. had informed
      [Appellant] that she was only 16 years old. On May 9, 2013, S.C.
      turned 17 years old. S.C.’s mother, stepfather, brother, sister
      and [Appellant] celebrated her 17th birthday at Benihana’s in
      Harrisburg.

            [Appellant] lived one block away from S.C. He lived with
      his grandmother, mother and sister. During the period of time

*Retired Senior Judge assigned to the Superior Court.
J-S22021-16


     when the couple was dating, [Appellant] would visit S.C.’s home
     about five times per week. When S.C. visited [Appellant] at his
     residence, they would spend their time in the basement where
     his bedroom was located. [Appellant] would use his cell phone to
     take pictures of them.

           At trial, S.C. identified pictures of herself, even though her
     face was not visible. She knew these pictures were of her
     because she recognized pieces of underwear that were depicted
     on them. She also recognized the blankets and sheets as being
     from the bedroom of [Appellant.] S.C. testified that these
     pictures were taken during the time that she and [Appellant]
     were dating. S.C. further identified [Appellant] in the pictures
     and stated that she was aware that the photographs were being
     taken. When the relationship ended between the parties, S.C.
     asked [Appellant] to delete the photographs from his cell phone.

           S.C.’s mother, [Mother], also testified. She confirmed that
     her daughter had been dating [Appellant] in the early summer of
     2013 when her daughter was 16-17 years old. Because of her
     daughter’s age, [Mother] imposed a 10:00 p.m. curfew which
     was known by [Appellant].

           Officer Terry Katzman was employed by the Millcreek
     Township Police Department for approximately 8 years. He has
     been a member of law enforcement for a total of 16 years. On
     December 30, 2013, he came into possession of [Appellant]’s
     phone as a result of an unrelated investigation. He obtained a
     search warrant to view the contents of [Appellant]’s cell phone.
     He was able to confirm that [Appellant] was the owner of the cell
     phone. Upon review of the contents of the cell phone, Officer
     Katzman identified various pictures of S.C. in various stages of
     dress and undress. Officer Katzman contacted [Mother] to
     review some photographs. [Mother] identified the photographs
     as those being of her daughter. At the time the photographs
     were taken, S.C. was under the age of 18.

        Officer Katzman then turned over the cell phone to Detective
     Michael Dipalo for further analysis. During trial, a stipulation was
     entered with respect to Det. Dipalo. In summary, the stipulation
     stated as follows:




                                    -2-
J-S22021-16


         (1) Det. Dipalo was employed by the Lebanon County
         Detective Bureau.

         (2) Det. Dipalo had received custody of [Appellant]’s cell
         phone.

         (3) Det. Dipalo conducted a forensic evaluation of the cell
         phone.

         (4) Photographs were recovered from the cell phone.

         (5) Det. Dipalo was able to determine that the photos were
         taken between May 18 and July 3, 2013.

         (6) Det. Dipalo did not alter the photographs.

         (7) Det. Dipalo maintained custody of [Appellant]’s cell
         phone from December 31, 2013 until January 1, 2014.

         The photographs on [Appellant]’s phone were presented to
      the jury at trial. The photographs depicted S.C. naked in a
      blatantly sexual way. However, the photographs also graphically
      establish that S.C. was a willing and voluntary model.

         [Appellant] also testified at trial. He stated that he began
      dating S.C. in May of 2013 when he was 19 years old. He stated
      that they began dating approximately one week before S.C.
      turned 17. At some point their relationship became sexual.
      [Appellant] used his cell phone to take pictures of S.C. S.C.
      consented to the picture-taking. [Appellant] showed the pictures
      to S.C., but to no one else. The pictures were meant to be a
      private thing between S.C. and [Appellant] were not taken to
      embarrass either one of them.

         Based upon the above information, [on August 5, 2014, a]
      jury found [Appellant] guilty of creating and possessing child
      pornography under 18 Pa.C.S.[] § 6312.

Trial Court Opinion, 5/18/15, at 5-8 (citations and footnote omitted).

      On December 17, 2014, Appellant was sentenced to 18 months of

probation. The trial court also determined that Appellant was not a sexually



                                    -3-
J-S22021-16


violent predator. Appellant was classified as a Tier III offender pursuant to

42 Pa.C.S. § 9799.23 and thus subject to the lifetime registration

requirement.      Appellant timely filed post-sentence motions, which the trial

court granted in part and denied in part.1 This appeal followed.

      On appeal, Appellant presents the following issues for our review.

      1. Did the Commonwealth fail to present sufficient evidence at
         trial to prove beyond a reasonable doubt that [Appellant] was
         guilty of the sexual abuse of children charges?

      2. Was the jury’s verdict against the weight of the evidence?

Appellant’s Brief at 4.

      In his first issue, Appellant argues that the evidence is insufficient to

support his convictions because he, a 19-year-old at the time, took

photographs of his then 17-year-old girlfriend that, although sexual in

nature, were consensual and not disseminated elsewhere.            In essence,

Appellant argues that this is not the type of conduct the legislature intended

to criminalize.

      Our standard of review for challenges to the sufficiency of the
      evidence is well-settled:

         [W]hether[,] viewing all the evidence admitted at trial in
         the light most favorable to the [Commonwealth as the]
         verdict winner, there is sufficient evidence to enable the
         fact-finder to find every element of the crime beyond a
         reasonable doubt. In applying [the above] test, we may

1
  Specifically, the trial court denied Appellant’s claims challenging the
sufficiency and the weight of the evidence. The trial court granted relief with
respect to Appellant’s lifetime registration requirement and imposed a
25-year registration requirement.


                                       -4-
J-S22021-16


           not weigh the evidence and substitute our judgment for
           the fact-finder. In addition, we note that the facts and
           circumstances established by the Commonwealth need not
           preclude every possibility of innocence. Any doubts
           regarding a defendant’s guilt may be resolved by the fact-
           finder unless the evidence is so weak and inconclusive that
           as a matter of law no probability of fact may be drawn
           from the combined circumstances. The Commonwealth
           may sustain its burden of proving every element of the
           crime beyond a reasonable doubt by means of wholly
           circumstantial evidence.

Commonwealth v. Eichler, 133 A.3d 775, 787 (Pa. Super. 2016).

      The crime of sexual abuse of children is defined, in relevant part, as

follows.

      § 6312. Sexual abuse of children

                                      ***

      (b) Photographing, videotaping, depicting on computer or
      filming sexual acts.--

           (1) 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 commits an offense if
           such person knows, has reason to know or intends that
           such act may be photographed, videotaped, depicted on
           computer or filmed.

           (2) Any person who knowingly photographs, videotapes,
           depicts on computer or films a child under the age of 18
           years engaging in a prohibited sexual act or in the
           simulation of such an act commits an offense.

                                    ***

      (d) Child pornography.--Any person who intentionally views or
      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



                                      -5-
J-S22021-16


      a prohibited sexual act or in the simulation of such act commits
      an offense.

18 Pa.C.S. § 6312(b), (d).

      Upon review, we agree with Appellant that the conduct at issue herein

is not of the type which the legislature intended to punish. “The purpose of

Section 6312 is plainly to protect children, end the abuse and exploitation of

children, and eradicate the production and supply of child pornography.”

Commonwealth v. Baker, 24 A.3d 1006, 1036 (Pa. Super. 2011).              The

facts of this case do not establish abuse or exploitation of S.C., or that

Appellant’s actions led to the supply of child pornography.2 Here, Appellant

and S.C. were permitted by law to engage in sexual activity. Thus, the acts

depicted in the photography on Appellant’s phone were not “prohibited

sexual acts” between these parties. In view of these circumstances, and the

maxim “Cessante ratione legis cessat et ipsa lex,”3 we conclude that the

reasons behind subsections 6312(b) and (d) are inapplicable to the

photography in this case.      Therefore, we hold that the evidence was




2
  Indeed, the only record evidence of dissemination of the pornography at
issue is the Commonwealth’s production of it at trial.
3
  “When the reason of the law ceases, the law itself also ceases.” Black’s
Law Dictionary at 1708 (8th ed. 2004).



                                    -6-
J-S22021-16


insufficient to support Appellant’s convictions.   Accordingly, we reverse

Appellant’s convictions.4

      Judgment of sentence vacated. Appellant is discharged.

      Judge Dubow joins.

      Judge Mundy files a dissenting statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/20/2016




4
  Based on our disposition above, we need not reach Appellant’s second
issue.


                                   -7-
