Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 5 of 1971, in case of Commonwealth of Pennsylvania v. Ronald Lee Botzum.
William W. Stainton, with him Arnold, Bricker, Beyer & Barnes, for appellant.
Ronald L. Buckwalter, Assistant District Attorney, with him Henry J. Rutherford, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J. Wright, P. J., would affirm on the opinion of Wissler, P. J.
[ 225 Pa. Super. Page 269]
This is an appeal by the defendant-appellant, Ronald Lee Botzum, from the judgment of sentence imposed by the Court of Common Pleas, Criminal Division, of Lancaster County, after conviction by a jury for violation of the Act of 1939, June 24, P. L. 872, Sec. 519, 18 P.S. Sec. 4519.
The Act in question reads as follows: "Whoever commits open lewdness, or any notorious act of public indecency, tending to debauch the morals or manners of the people, is guilty of a misdemeanor. . ."
After a careful reading of the record in this case, we cannot agree that there was sufficient evidence to establish a case of public indecency sufficient to sustain this verdict.
[ 225 Pa. Super. Page 270]
The Commonwealth's case is as follows: The testimony of Joann Jarvis, aged 16, was that she and two other girls were swimming in the Susquehanna River at Pequea, Lancaster County, Pennsylvania, on July 16, 1969. The defendant spoke to the witness on the dock when fully clothed then went back into the woods where he changed his clothes and put on his swimming trunks, spent some time on the dock then went swimming. The witness stated that she observed a hole in his bathing trunks that exposed a portion, not clear how much, of his private parts. Distances are uncertain and there is no evidence of his knowledge of the existence of a hole or that he called attention to it in any way.
He then went back to the wooded area, again the distance is not stated in the record, but a witness said he sat on a log and that she could see he was nude. Again, there is no evidence that he called attention to his nudeness or made gestures of any kind, only that after changing his clothes, she observed his nude figure. She said he was sitting and not doing anything. She testified that she could not see him clearly enough to distinguish parts of his body, but that she was sure he was nude while sitting on the log.
Linda Stark, aged 20, testified that she could tell he was nude because of the difference between the dark trunks and flesh colors. Again, the distances are uncertain and she did not see him doing anything. She testified that after he left to change his clothes, the three girls were walking up the hill and she turned and saw him trying to hide in the wooded area.
A third girl, Pamela Sirbak, who was one of the three girls allegedly present at the time, was not called as a witness and this was the entire evidence and the demurrer by the defendant was denied. His defense was ...