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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J., DUBOW, J., and STRASSBURGER, J.*

DISSENTING STATEMENT BY MUNDY, J.:                     FILED JULY 20, 2016

        I respectfully dissent. The crux of Appellant’s sufficiency argument is

that the photographs of S.C. were consensually taken, and he did not

disseminate them.        Majority Memorandum at 4; Appellant’s Brief at 11.

Instead, the Majority decides a different issue, i.e., that the “the conduct at

issue herein is not the type which the legislature intended to punish.”

Majority Memorandum at 6.

        The Majority does not conclude the Commonwealth’s evidence is

insufficient for a failure to satisfy any of the elements of sexual abuse of

children.     Likewise, the Majority does not dispute that neither lack of

consent, nor dissemination is an element under Section 6312, which

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


resolves Appellant’s sufficiency argument.1 Rather, the Majority deems the

Commonwealth’s case legally insufficient because of the maxim cessante

ratione legis cessat et ipsa lex. Majority Memorandum at 6. This maxim has

never been applied to void an otherwise legally sufficient criminal conviction.

       While I am sympathetic to Appellant’s argument, I cannot overlook

that Appellant does not deny the photographs were taken, or that he

possessed them on his cell phone. See generally Appellant’s Brief at 11.

The trial court reached this same conclusion.

                      [The trial c]ourt understands and does not
              depreciate how child pornography can victimize
              young children who are horrifyingly sexualized to
              gratify the perverted desires of older pedophiles.
              However, we cannot in good conscience equate an
              [sic] 19-year-old who engages in consensual
              photography with his almost 17-year-old girlfriend
              with the perverted adults who prey upon, sexualize
              and photograph children so that the images can be
              disseminated to pedophiles who troll the internet.
              Unfortunately, [Appellant]’s conduct in taking and
              keeping the consensual photographs of his underage
              girlfriend fits the technical legal definition of creating
              child pornography. Also, unfortunately, all of the
____________________________________________
1
  The Majority appears to equate “prohibited sexual act” in Section 6312(d)
with a criminal act. See generally Majority Memorandum at 6. However,
Section 6312(g) defines the term “prohibited sexual act” as “[s]exual
intercourse as defined in section 3101 (relating to definitions), masturbation,
sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the
genitals or nudity if such nudity is depicted for the purpose of sexual
stimulation or gratification of any person who might view such depiction.”
18 Pa.C.S.A. § 6312(g). The statute therefore does not depend on the
legality or illegality of the underlying act, rather it depends on depicting a
child under the age of 18 engaging in any of the listed “prohibited sexual
acts.”



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             draconian consequences that were intended to deal
             with perverted purveyors of child pornography will
             apply to a naïve young man who made the mistake
             of photographing his slightly younger girlfriend.

Trial Court Opinion, 5/18/15, at 4.

      Nevertheless, having no legal alternative, the trial court concluded as

follows.

                     In this case, [Appellant] clearly took the
             photographs of his almost seventeen-year-old
             girlfriend that depicted her naked and in sexual
             situations.    At the time, [Appellant] knew his
             girlfriend’s age. Even though the girlfriend obviously
             consented to the photographic session, consent is
             not a defense to a violation of [Section] 6312.

                                       …

                   [Appellant]’s argument has equitable and
             common sense appeal.            Unfortunately, his
             arguments are not legally cognizable. Section 6312
             does    not    distinguish   between      consensual
             photographs     taken     by   two      adventurous,
             experimenting teens and photographs created by
             sexual predators for the pedophilic gratification of
             themselves or others. While certainly ironic, the fact
             that [Appellant] and S.C. were legally permitted to
             engage in sexual activity is not a defense to
             [Section] 6312[.]

Id. at 13.

      Upon careful review, I am constrained to agree with the trial court’s

conclusion that the evidence was sufficient to convict Appellant of both

counts of sexual abuse of children. The trial court appropriately recognized

that Section 6312 is the law of this Commonwealth, and faithfully applied

the same to this case. As noted above, Appellant acknowledges that S.C.

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was under 18 years of age, “the photographs were of a sexual nature[,]”

and that he took said photographs. Appellant’s Brief at 11. It is not the role

of the judiciary to change the law.            Rather, any changes to Section 6312

must come from the legislature.

       Based on the foregoing, I conclude that Appellant is not entitled to

relief, and the Majority’s reasoning for concluding to the contrary is

unsound.2 Accordingly, I would affirm the trial court’s December 17, 2014

judgment of sentence. I respectfully dissent.




____________________________________________
2
  I have reviewed Appellant’s second issue pertaining to the weight of the
evidence, and likewise conclude it lacks merit.



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