The PA Superior Court has held that when a female exposes her breasts to inmates at a county jail from the street below their cell windows, her public, sexually explicit misconduct violates the open-lewdness statute.
Elisabell Berrios received a call from her boyfriend, an inmate in the county jail and they had a nearly 15-minute conversation that was sexually explicit while she lounged on the windshield of her car outside the jail. They also discussed his ability to see her exposing her entire breast to him and the other inmates housed on that side of the jail.
Police were called and Berrios denied exposing her breasts as has been reported by a prison guard who observed and recorded her conduct with his body cam. Berrios claimed that the incident was a “she-said, he-said” matter. It actually turned out to be a “she-said, he-and-his-body-cam-said” matter. She was charged and ultimately convicted of open lewdness, receiving a sentence of 2-12 months.
Berrios raised several issues on appeal, including those discussed below.
Sufficient Evidence of Lewdness?
The jury convicted Berrios of open lewdness. A person commits that crime in PA “if [s]he does any lewd act which [s]he knows is likely to be observed by others who would be affronted or alarmed.” 18 Pa.C.S.A. § 5901.
The Superior Court noted that “[w]hile there may be circumstances, other than breastfeeding, where the public exposure of a female’s entire breast does not amount to open lewdness, like the trial court, we hold that this case is a circumstance in which the General Assembly intended to ban the exposure of a female’s nipples from public view.”
At common law, the crime of open lewdness “was defined as an act of gross and open indecency which tends to corrupt the morals of the community.” Subsequent case law extended it to “conduct that: 1) involves public nudity or public sexuality, and 2) represents such a gross departure from accepted community standards as to rise to the level of criminal liability.”
Berrios initially denied exposing her breasts to the public. She subsequently limited her appellate argument to the phrase “lewd act” and contended that the exposing of the female breasts in public is not lewd. The Superior Court concluded that Berrios’ breasts and her legal argument were without support.
The Superior Court concluded that Berrios’ conduct was overtly sexual in nature. Specifically, she received a call from her boyfriend, an inmate in the county jail and they had a nearly 15-minute conversation that was sexually explicit. They discussed his ability to see her exposing her entire breast to him and the other inmates housed on that side of the jail.
Thus, Berrios’ conduct involved a public display of sexuality, even though it did not involve her genitals. The clear purpose of Berrios displaying her breasts to the jail was to stimulate Vega’s lustful interests. And, based on the response of the other inmates, it was clear to Berrios and the guard that she was “riling them up,” as well.
Berrios displayed her entire breasts to the inmates for a sexual purpose. Therefore, her conduct was a “lewd act,” as that term is used in Section 5901 of the Crimes Code.
Constitutionally Vague Statute?
Berrios also argued that the common law, upon which the legislature based Section 5901, provided her with no notice that exposing her breast in public was illegal.
The Superior Court recognized that “while public masturbation remains an ‘indecency . . . there might be other conduct, clearly punishable at the time of Blackstone, which could not today be constitutionally punished under the statutory standard’ of 18 Pa.C.S.A. § 5901.”
Berrios asserted that her conduct fell into the latter category and that it should not have been punished.
The Superior Court did not agree.
“Berrios hid the fact that she had publicly exposed her breasts from the officer in a clear indication of her consciousness of guilt. Berrios’ consciousness of guilt establishes that, even in her own mind, showing the entire female breast in public and attempting to rouse the sexual interests of county inmates are ‘actions which, even by contemporary mores, must be deemed, as at common law, indecencies which tend to corrupt the morals of the community.’”
“In short, Berrios knew she had committed a ‘lewd act which [s]he [knew was] likely to be observed by others who would be affronted or alarmed.’”
Accordingly, her void-for-vagueness challenge also failed.
CASE LINK
COMMONWEALTH V. BERRIOS, NO. 1094 MDA 2022 (Pa. Super. 06/20/2023)
