No. 1162 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal, of Chester County, Pennsylvania at No. 146 C, 1975.
Ralph W. Kent, and Kent & Thomas, West Chester, for appellant.
William H. Lamb, District Attorney, West Chester, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 604]
This is an appeal from a judgment of sentence of the Court of Common Pleas of Chester County. Appellant was convicted, after a non-jury trial, of indecent exposure and open lewdness. He received two years probation on the indecent exposure charge. No sentence was imposed for open lewdness as the court concluded that it merged into indecent exposure.
Appellant's sole contention is that the evidence was insufficient to prove that he acted knowingly. The mens rea requirements of the two offenses are virtually identical. Indecent exposure is defined in the Act of December 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973, 18 Pa.C.S.A. 3127 as follows:
"A person commits a misdemeanor of the second degree if, for the purpose of arousing or gratifying sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm."
Section 5901 of the Crimes Code, supra, gives the following definition of open lewdness:
"A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed."
[ 255 Pa. Super. Page 605]
The Commonwealth's evidence, which must be accepted as true in deciding the sufficiency of the evidence, Commonwealth Page 605} v. Murray, 246 Pa. Super. 422, 371 A.2d 910 (1977), established the following:
On January 10, 1975, a West Goshen Township police officer received a radio call directing him to go to 814 South New Street (appellant's address) in response to a complaint from the house next door that the person living at that address was exposing himself. The officer went to the address and walked around the outside of the house. Nothing appeared to be amiss. Walking along the rear of the house (in the direction of the complainant's house) the officer saw that the shade of a window of the corner room was partially open. He observed a fully-clothed male, whom he later identified as appellant, bend over to pick something up off the floor. He turned the corner and saw that there was another window to the same room. This one had its curtains drawn and its shades down. The officer, joined by his partner, proceeded to the house next door, where Miss Helen Goodwin and Miss Alice Goodwin, sisters, lived. The Goodwin sisters answered the door "with a baseball bat" and "went on to explain . . . that the next door neighbor had been exposing himself over a period of months every time the light went on in their garage." The officer and his partner went into the garage with one of the sisters and looked through a window that ...