In re T.Q.B.

311 A.3d 1009

In the INTEREST OF: T.Q.B., a Minor

Appeal of: T.Q.B., a Minor

No. 71 MAP 2023

Supreme Court of Pennsylvania.

Argued: November 29, 2023

Decided: March 21, 2024

Appeal from the Order of Superior Court dated November 14, 2022 at No. 1527 MDA 2021, Reconsideration Denied January 12, 2023, Affirming the Order of the Dauphin County Court of Common Pleas, Criminal Division, entered October 28, 2021 at No. CP-22-JV-0000018-2021, Royce L. Morris, Judge.

John Thomas Fegley, Esq., Bucks County District Attorney’s Office, Brian Ray Sinnett, Esq., Adams County District Attorney’s Office, for Amicus Curiae Pennsylvania District Attorneys Association.

Spencer Hamilton Bradley, Esq., Mary Lynn Klatt, Esq., Dauphin County Public Defender’s Office, for Appellant T.Q.B.

Mary Lynn Klatt, Esq., Ryan Hunter Lysaght, Esq., Dauphin County District Attorney’s Office, for Appellee Commonwealth of Pennsylvania.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE MUNDY

We granted discretionary review in this matter to address the definition of "nudity" as used in 18 Pa.C.S. § 6321, which pertains to the crime of transmission of sexually explicit images by a minor. For the reasons that follow, we affirm the Superior Court’s dispositional order finding the evidence sufficient to support an adjudication of delinquency.

On October 18, 2020, T.Q.B. ("Appellant"), then twelve-years-old, appeared in an Instagram live video with A.D. A.D. was also twelve-years-old at the time and has an intellectual disability. During the livestream, Appellant encouraged A.D. to lift her shirt. In doing so, A.D. exposed the bottom portion of her breasts below the nipple area. The rest of A.D.’s breasts, including the nipple, were covered by a bra. A.D.’s mother learned about the video through another family member. She then contacted Appellant and requested removal of the video. Appellant did not comply and the video remained on her publicly available Instagram page for several months. A.D.’s mother contacted the police after later learning from the school principle that the video of A.D. was being shared. Following an investigation, Appellant was charged with, inter alia, transmission of sexually explicit images by a minor graded as a second-degree misdemeanor under 18 Pa.C.S. § 6321(c). This statute provides, in relevant part, as follows:

[A] minor commits a misdemeanor of the second degree when, with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor, the minor:

(1) makes a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor; or

(2) transmits, distributes, publishes or disseminates a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor.

18 Pa.C.S. § 6321(c). Section 6321(g) defines nudity as follows:

The showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque cover, the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered male genitals in a discernibly turgid state.

18 Pa.C.S. § 6321(g) (emphasis added).

On October 20, 2021, the juvenile court held an adjudication hearing, at which A.D.’s mother and the investigating officer testified.¹ The Commonwealth also submitted into evidence the Instagram live video. After the Commonwealth presented its case, Appellant’s attorney moved for a directed verdict with respect to transmission of a sexually explicit image by a minor, asserting the "nudity" element had not been established because the nipple was not exposed. N.T. Adjudication Hearing, 10/20/21, at 39-40. The juvenile court denied the motion and ultimately adjudicated Appellant delinquent of the charge at issue. In doing so, the juvenile court explained:

I will say for the record that I did have some trouble with the below the bottom of the nipple. In this case, we did see the exposed chest, breast below the bottom of the nipple. The nipple was not present. And that’s the words of the statute. So[,] if you cover the nipple, but you see the bottom of the [breast], then I’m assuming [that’s what] the legislature intended.

Id. at 50. The juvenile court placed Appellant on formal probation. She was also ordered to have "no contact" with and "write an apology letter" to A.D. Adjudicatory/Dispositional Hearing Order, 10/28/21 at 1. Appellant timely appealed to the Superior Court raising two issues, only one of which is relevant to this appeal. Appellant specifically claimed the evidence was insufficient to support an adjudication of delinquency for transmission of sexually explicit images by a minor because the Commonwealth failed to establish the nudity requirement. Appellant continued to maintain that nudity under Section 6321(g) requires exposure of the nipple.

The Superior Court unanimously affirmed. In the Interest of T.Q.B., — Pa. Super. —, 286 A.3d 270 (2022). The court first explained the well-settled standard of review for an adjudication of delinquency. Id. at 273 (citing In the Internst of V.C., — Pa. Super. —, 66 A.3d 341, 349 (2013) ("[T]he test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged.") (citation omitted)). It then noted that despite raising a sufficiency claim, Appellant’s issue actually sounded in statutory construction. As such, the court observed the standard of review for such claims is plenary and the scope of review is de novo. It continued that:

[T]he object of statutory construction is to ascertain and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In pursuing that end, we are mindful that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b).

Id. at 275 (quoting Commonwealth v. Wilson, — Pa. Super. —, 111 A.3d 747, 751 (2015)).

With this in mind, the Superior Court examined the plain language of the definition of nudity provided in Section 6321(g) and determined "the term does not require that the nipple must be exposed in order for an individual to have committed the offense." Id. The court explained that the evidence presented at the adjudication hearing established that Appellant urged A.D. to lift her shirt during the Instagram live video, exposing a portion of A.D.’s breasts below the nipple. This was sufficient to establish nudity. The court also rejected Appellant’s contention that its interpretation was inconsistent with other cases addressing the meaning of nudity in the context of other statutes. See e.g., Hubler v. Pennsylvania. Bd, of Prob. & Parole, — Pa. Cmwlth. —, 971 A.2d 535 (2009); Pennsylvania Liquor Control Bd. v. J.P.W.G., Inc., 88 Pa.Cmwlth, 385, 489 A.2d 992 (1985); Purple Orchid, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, — Pa. Cmwlth. —, 721 A.2d 84 (1998). The Superior Court deemed these cases inapposite because none of them concerned the definition of nudity under Section 6321, or more specifically, the "any portion thereof" phrase. T.Q.B., 286 A.3d at 276-77. The court therefore affirmed the juvenile court’s dispositional order.

Appellant filed a petition for allowance of appeal with this Court. We granted discretionary review to address the following issue:

Whether, in addressing an issue of first impression, the Superior Court panel erred as a matter of law in affirming Petitioner’s adjudication of delinquency for transmission of sexually explicit images by construing the statute’s definition of "nudity" under 18 Pa.C.S. § 6321(g), which includes "[t]he showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple[,]" as not requiring a showing of the nipple.

In the Interest of T.Q.B., — Pa. —, 298 A.3d 1131 (2023) (per curiam).

Appellant explains that the definition of nudity set forth in Section 6321(g) appears in various statutes defining nudity, most notably the obscenity statute. Appellant’s Brief at 11-12 (citing 18 Pa.C.S. 5903(b)). Appellant therefore disagrees with the Superior Court’s determination that the defi- nition provided in Section 6321(g) is unique. She also maintains that the definition of the nude female breast includes the showing of the nipple and the lack of an opaque covering of any portion below the top of the nipple. Appellant then points to various images in which adult females’ under-breast area is exposed, explaining such images would constitute nudity if they included juveniles, which would create an absurd result. Id. at 12-15. Appellant asserts that no average person would consider the mere exposure of the under-breast area shown in these photos as obscene, nude, or bare-breasted.

Appellant further avers that our principles of statutory construction confirm the same. She first maintains the definition of nudity in Section 6321(g) is prone to two different interpretations, making it ambiguous. Appellant contends that "the statute prohibits the showing of a state of nudity, in this case the female breast, where there is a non-fully covered display of a portion of the nipple below the top." Id. at 20. This, however, creates a vast difference in scope depending on how the phrase "any portion" is interpreted. The phrase could mean any portion below the top of the nipple whether or not the nipple is exposed. It could also mean "any portion" below the nipple while also requiring the nipple itself to be exposed. Id. at 20-22.

Because of this purported ambiguity, Appellant argues it is necessary to resort to the rales of statutory construction. She specifically asks this Court to consider the occasion and necessity for the statute, the circumstances under which it was enacted,...