Commonwealth v. Rudolf

262 A.3d 574

COMMONWEALTH of Pennsylvania

v.Germar RUDOLF, Appellant

No. 1016 MDA 2020

Superior Court of Pennsylvania.

Argued: August 3, 2021

Filed: August 30, 2021

Scot R. Withers, West Chester, for appellant.

Kelby S. Carlson, Assistant District Attorney, York, for appellee.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.^*

OPINION BY McCAFFERY, J.:

Germar Rudolf (Appellant) appeals from the judgment of sentence entered in the York County Court of Common Pleas following his jury convictions of indecent exposure and open lewdness.¹ Appellant claims the evidence was insufficient to support a conviction of indecent exposure, and that the trial court abused its discretion in admitting evidence of his prior involvement with law enforcement. We hold, inter alia , that the statutory definition of indecent exposure requires the actor to be either: (1) in any public place, regardless of whether others are present; or alternatively (2) "in any place" where there are persons present "under circumstances in which [the actor] knows or should know that [their] conduct is likely to offend, affront or alarm." See 18 Pa.C.S. § 3127(a). We affirm.

The Commonwealth presented the following evidence at trial. Lower Windsor Township Police Officer Benjamin Wind was on patrol in a marked police car on July 2, 2019, around 4:00 a.m. N.T., 7/6/20, at 56-57. He arrived at the area of Long Level Road and Fishing Creek in Lower Windsor, an area with a large parking lot, boat launch, park, and children's playground. Id. Officer Wind saw Appellant standing in the playground, wearing a bright yellow sleeveless shirt and no pants. Id. at 61, 63. He could see Appellant's genitalia. Id. at 62. Officer Wind did not see anyone other than Appellant. Id. at 74. He stopped his vehicle and began to move his spotlight toward Appellant. Id. at 61. Before the officer "actually got the spotlight on him," however, Appellant ran behind a tree. Id. at 61-63. Officer Wind "yell[ed] at" Appellant, stating at trial that it "took a while to get him to come over to me." Id. at 65. Appellant sat down at a picnic table and appeared to be putting on shorts. Id.

Appellant told Officer Wind he was there to work out, but Officer Wind did not observe any fitness equipment in the playground area. N.T. 6/7/20, at 65. The officer, however, noticed Appellant had a bottle of lotion or baby oil. Id. at 66. Officer Wind told Appellant to leave the area, but he witnessed Appellant about a half an hour later "just up the street," approximately 600 yards away. Id. at 66-67. Officer Wind again asked Appellant to leave the area.

Officer Wind charged Appellant with open lewdness and indecent exposure. The case proceeded to a jury trial commencing July 6, 2020. Officer Wind testified as summarized above.

Appellant testified in his defense to the following. He had driven to Long Level Road around 4:00 a.m. and prepared for a morning workout. N.T., 7/6/20, at 103. Appellant proceeded down to the playground and was about to change out of his dress shorts and into exercise shorts. Id. at 105. Appellant used the playground equipment to work out: "the monkey bars for pull-ups, ... sit-ups, and leg raises, and that kind of stuff." Id. at 103-04. As he began to change his shorts, he noticed a light coming from a car about half a mile away. Id. Being in a "comprising situation," he hid behind a bush, "waiting for the car to pass." Id. at 105. However, the car did not leave and instead entered the parking lot. Id. at 105. Appellant "decided to quickly get back to the playground ... and get into his workout shorts." Id. at 106. Appellant put his shorts on and turned to go to the river when a light struck him from the back. Id. at 108. At this point, he was wearing "pretty skimpy" running shorts. Id. at 110-11. As Appellant continued to walk down to the river, he heard Officer Wind call to him to "stop hiding naked behind the tree." Id. at 113.

Appellant approached Officer Wind, who asked why he was "running around naked." N.T., 7/6/20, at 114. Appellant replied that he was not naked, and Officer Wind asked for Appellant's identification. Id. at 114-15. Appellant returned to his vehicle to retrieve his identification. Id.

On direct examination, Appellant's counsel asked whether Appellant used the bottle of baby oil for his workout. N.T., 7/6/20, at 116. Appellant's uninterrupted response spanned four pages of testimony and went beyond the issue of the baby oil. Id. at 117-20.

Appellant explained he used the baby oil to soothe his calluses after a workout, and testified about his ensuing exchange with Officer Wind as follows. Officer Wind recognized Appellant's German accent and asked if he was "the guy we had a case with several years ago[.]" Id. at 118. Appellant replied that he was, but "that was [a] completely different case." Id. Officer Wind then told Appellant he would charge him with open lewdness and illegal trespassing. Id. Appellant also claimed that Officer Wind said, "Judge Fishel will not be happy to see you again. Wasn't there an order out you're not allowed to be here?" Id. Appellant replied that he was not aware of such an order. Id. Officer Wind instructed Appellant to leave the area and to not come back. Id. at 119.

Following Appellant's direct examination, the Commonwealth argued at sidebar that in testifying about this prior incident, Appellant "opened the door" for the Commonwealth to cross-examine him about it and to call Officer Wind to testify about the exchange as well.² N.T., 7/6/20, at 20-121. When the trial court asked defense counsel for any opposing argument, he responded as follows:

[Appellant's counsel]: ... I told him not to say anything about this. I knew what would happen.

THE COURT: Okay. So you're conceding that's the law.

[Appellant's counsel:] I don't know what to say, Your Honor.

THE COURT: Yeah, I think he opened the door[.]

Id. at 122-23. The court agreed Appellant opened the door and thus permitted the cross-examination of Appellant and further testimony by Officer Wind. Id. at 123.

On cross-examination, Appellant stated that in 2014, he worked out in the same area, then went for a swim in the river naked. N.T., 7/6/20 at 126. When he "came back," however, his bicycle and clothes had "disappeared." Id. "[A]s he approached the site, two police officers" appeared and directed him to come out of the river. Id. Appellant did not want to, and asked them to "get [his] pants from his bicycle and throw it in the river so" he could put them on. Id.

The Commonwealth recalled Officer Wind as a witness in rebuttal, and he testified he remembered this exchange with Appellant on July 2, 2019, about the prior incident. N.T., 7/6/20, at 128. Officer Wind further testified he was aware of the previous incident involving indecent exposure, and that in preparing the charges for this case, he spoke with the officer who filed charges in the prior incident and read the report. Id. at 129.

Finally, we note Appellant also called George Morrison, a private detective, as a witness. N.T., 7/6/20, at 87. Morrison photographed the various views of the playground area around 4:00 in the morning, testifying that it was incredibly dark and difficult to capture anything on film. Id. at 89-99.

On July 7, 2020, the jury returned a verdict of guilty for both charges of open lewdness and indecent exposure. The case proceeded immediately to sentencing, and the trial court imposed 12 months’ probation for the charge of open lewdness and a concurrent term of 24 months’ probation for indecent exposure. N.T., 7/7/20, at 177. Appellant did not file any post-sentence motions.

On July 20, 2020, Appellant's trial counsel filed a motion to withdraw. On August 7th, the trial court granted leave to withdraw.

Meanwhile, on August 4, 2020, Appellant filed a pro se notice of appeal. On August 7th, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. On August 12th, current counsel, Daniel Bush, Esquire, entered his appearance as Appellant's counsel of record. The following day, Appellant filed a motion for an extension of time to file a Rule 1925(b) statement, which was granted. Appellant then filed a timely Rule 1925(b) statement.

On appeal, Appellant raises the following issues for our review:

A. Whether the evidence was sufficient to support the conviction for indecent exposure, where the evidence presented by the Commonwealth did not establish any act done by Appellant under circumstances in which another person was likely to be offended or alarmed, and where the only person who observed Appellant was the citing police officer?

B. Whether the trial court abused its discretion by allowing the Commonwealth to present evidence regarding Appellant's prior involvement with law enforcement in a prior circumstance, after the trial court erroneously determined the Appellant had "opened the door" to allowing such cross-examination?

Appellant's Brief at 5.

In his first issue, Appellant claims the evidence was insufficient to support a conviction of indecent exposure. We first set forth the Pennsylvania Crimes Code statutory definition of indecent exposure:

A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.

18 Pa.C.S. § 3127(a).

On appeal, Appellant now claims that the Commonwealth could not meet its burden of proof because it did not establish that other persons were present or that he knew or should have known his conduct was "likely to offend, affront or alarm." Appellant's Brief at 16, quoting 18 Pa.C.S § 3127(a). Appellant maintains that the area where he was changing was "incredibly dark" with "very little ambient light." Appellant's Brief at 16. Appellant further avers the only person who observed him was Officer Wind. Id. Appellant thus argues...