Appeal from order of Court of Common Pleas of Montgomery County, Sept. T., 1970, No. 230, in case of Commonwealth of Pennsylvania v. Robert L. Davidson.
Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellant.
John H. Lewis, Jr., with him Benjamin E. Zuckerman, Morgan, Lewis & Bockius, and Wright, Spencer, Manning & Sagendorph, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.
[ 220 Pa. Super. Page 451]
The Commonwealth appeals from the order of Judge A. Benjamin Scirica of the Court of Common
[ 220 Pa. Super. Page 452]
Pleas of Montgomery County, sustaining a demurrer to the evidence presented against appellee Robert L. Davidson on a charge of indecent exposure. The evidence submitted by the Commonwealth in the jury trial was as follows:
Linda Knapp, a juvenile, testified that while walking in her neighborhood in Narberth, Montgomery County, on August 24, 1971, at about 4:00 p.m., she was approached by a motorist in a dark blue automobile who asked street directions. When she turned to respond to the inquiry, she observed that the motorist was nude. The car pulled away slowly, giving her an opportunity to see and memorize the license plate number. She completed a short walk to her home, recorded the number and reported the incident to the police. She testified that the automobile was a hardtop; this varied from her prior statement that the car was a sedan. She further stated that there were no distinguishing features about the motorist, and that she could not be sure that the motorist and the appellee were the same person.
Police Officer Hunsicker, who investigated the incident, testified that on the basis of information from the Department of Motor Vehicles in Harrisburg, he requested the appellee on August 25 to come to police headquarters. The appellee appeared two hours later. He acknowledged that the car bearing the license plate number reported by Miss Knapp did belong to him and that he had been driving the car in the area of, and at the approximate time of, the alleged incident. He stated that he had been swimming at his girlfriend's home and had been wearing his bathing suit when he left her home. Officer Hunsicker could not recall whether he had asked the appellee specifically if he had exposed himself to Miss Knapp. Another officer testified that he had interviewed Miss Knapp at her
[ 220 Pa. Super. Page 453]
home on the 24th of August and had filed a report on the basis of this information.
Following this testimony, counsel for the appellee demurred to the Commonwealth's evidence. The trial judge sustained the motion on the grounds that the Commonwealth had not convincingly and substantially shown that the act was open, notorious and public, even assuming that the facts were as related by Miss Knapp. The lower court was persuaded by the fact that there was no attempt to entice or harm the complainant. He also noted that ordinarily, only the head and shoulders of a motorist would be visible to a passerby. Although we are chary of situations such as this, which may be peculiarly subject to ...