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COMMONWEALTH PENNSYLVANIA v. PETER B. MCCUE (01/16/85)

filed: January 16, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
PETER B. MCCUE, APPELLANT



No. 853 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lehigh County, Criminal Division, at Nos. 1121, 1123-1979.

COUNSEL

Bernard V. O'Hare, Jr., Bethlehem, for appellant.

Richard R. Tomsho, Deputy District Attorney, Allentown, for Commonwealth, appellee.

Spaeth, President Judge, and Brosky and Hoffman, JJ.

Author: Hoffman

[ 338 Pa. Super. Page 119]

Appellant challenges (1) the sufficiency of the evidence to support his conviction for sexual abuse of children, (2) the display of and references to certain pornographic material

[ 338 Pa. Super. Page 120]

    in the jury's presence, (3) the trial court's refusal to permit defense counsel to question a Commonwealth witness regarding the circumstances under which she left her employment, (4) several jury instructions, and (5) his sentencing. We find these contentions meritless and, accordingly, affirm the judgment of sentence.

Appellant was arrested on October 23, 1979, and subsequently charged with five counts of criminal solicitation, one count of sexual abuse of children, and one count of possession of a prohibited offensive weapon. On May 30, 1980, following a hearing, appellant's petition to suppress evidence was denied. Approximately two weeks later, a jury trial commenced, at the conclusion of which appellant was found guilty of four counts of criminal solicitation, one count of sexual abuse of children, and one count of possession of a prohibited offensive weapon. Appellant's post-verdict motions were timely filed and denied. On March 8, 1982, appellant was sentenced to serve a term of nine months-to-three years imprisonment, and ordered to pay the costs of prosecution and $325.00 in fines. This appeal followed.

Appellant challenges first the sufficiency of the evidence supporting his conviction for sexual abuse of children.

The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); see Commonwealth v. Ransome, 485 Pa. 490, 493, 402 A.2d 1379, 1381 (1979), and Commonwealth v. Miller, 303 Pa. Superior Ct. 504, 507, 450 A.2d 40, 41 (1982).

18 Pa.C.S.A. ยง 6312(c) defines sexual abuse of children as follows:

Dissemination of photographs and films. -- Any person who sells, displays for sale or transfer, or who possesses

[ 338 Pa. Super. Page 121]

    for the purpose of sale, display for sale or transfer, any book, magazine, pamphlet, slide, photograph or film depicting a child under the age of 16 years engaging in a prohibited sexual act or in the simulation of such act is guilty of a felony of the third degree.

So viewed, the facts are as follows: In September, 1979, while a guest at the Holiday Inn West in Allentown, Pennsylvania, appellant became acquainted with a desk clerk named Janice Steckel. At the time, Ms. Steckel was a divorcee who lived with her eight-year old daughter, Melanie. On the evening of September 12, 1979, appellant and Ms. Steckel met for drinks at a local cocktail lounge known as the Village Inn. Later that evening, appellant, Steckel, and Melanie went to a restaurant for dinner. After dinner, all three returned to Steckel's apartment where appellant stated that he was a photographer and "that he was interested in making a movie star out of [Melanie]." (N.T. July 15, 1980 at 35). Appellant further announced that Steckel herself could make a lot of money if [she] let him take pictures of [Melanie]." (Id.) Steckel testified that, at the time, she believed appellant to be an ordinary children's photographer. Nevertheless, Steckel was unsure of appellant's proposition and requested time to think about it. The next morning, appellant approached Steckel at the Holiday Inn and showed her what appeared to be a Polaroid photograph of an eight-year-old girl, naked from the waist up, standing in a motel room.

Approximately one month later, on October 15, 1979, appellant and Steckel again met for drinks at the Village Inn. Upon returning to Steckel's apartment, appellant removed from the trunk of his car a booklet containing about 24 photographs. These photographs, which appellant displayed to Steckel, depicted nude children under the age of sixteen engaged in various sexual acts. Appellant informed Steckel that these were the type of pictures that he planned to take of her daughter. Additionally, ...


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