Opinion
933 WDA 2023
10-22-2024
COMMONWEALTH OF PENNSYLVANIA v. KEELAN LYONS Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered May 15, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006870-2022
Benjamin D. Kohler, Esq.
BEFORE: KUNSELMAN, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM
McLAUGHLIN, J.
Keelan Lyons appeals from the judgment of sentence entered following his convictions for two counts of open lewdness. He challenges the sufficiency of the evidence and the court's decision to convict him of two counts of open lewdness, rather than one. We affirm in part and vacate in part.
The trial court aptly summarized the facts presented at the preliminary hearing as follows:
On July 15, 2022, A.H., a fourteen-year-old female, and her sixteen-year-old friend, were walking to the park in the Hill District area of the City of Pittsburgh. En route they passed [Lyons's] residence, located at 820 Adelaide Street. As they walked past they heard a knock on the window from his home. Both juveniles looked in the direction of the knock and saw curtains opening at the window with [Lyons] standing in the window nude and fondling his genitals, smiling at them.
Rule 1925(a) Opinion, filed 12/19/23, at 5. The court found Lyons guilty of the offenses mentioned above and imposed consecutive sentences of one year of reporting probation for each count. See Order of Sentence, filed 5/15/23. Lyons filed a post-sentence motion challenging the sufficiency of the evidence and claiming that the court erred in finding him guilty of two counts of open lewdness, instead of one count. The trial court denied the motion, and this timely appeal followed.
Lyons raises the following issues:
1. Did the trial court err by concluding that the Commonwealth presented sufficient evidence to convict Mr. Lyon[s] of two counts of Open Lewdness because one alleged victim never testified to seeing Mr. Lyons, Mr. Lyons did not commit a lewd act under the statute, and there was no proof that Mr. Lyons knew that he would be observed and that his actions would cause the observer to be affronted or alarmed?
2. Did the trial court err in convicting Mr. Lyons to two counts of open lewdness because a single act of exposure cannot be multiplied by the number of witnesses to become multiple offenses pursuant to Commonwealth v. Laudadio, 938 A.2d 1055 (Pa.Super. 2007)?Lyons's Br. at 6.
The trial court concludes that Lyons waived his sufficiency claim because his Rule 1925(b) statement was not concise or coherent. Lyons's Rule 1925(b) statement included a lengthy paragraph detailing why he believed the evidence was insufficient. However, we do not find waiver since the court did not find that Lyons acted in bad faith. See PHH Mortg. Corp. v. Powell, 100 A.3d 611, 614 (Pa.Super. 2014) (noting that a lengthy Rule 1925(b) statement does not constitute waiver "unless the trial court finds that the appellant acted in bad faith").
Lyons argues that the evidence was insufficient because the Commonwealth failed to establish that he committed a lewd act. He claims there was no evidence that he knew anyone would see him. Lyons points out that only one of the victims testified and he argues that it is therefore not clear whether the other minor saw Lyons or was "affronted or alarmed" by his actions. Id. at 10. He further notes the victim testified that she was unsure if Lyons's hands were moving when she observed him in the window with his hands on his genitals. He maintains that the evidence merely showed he was standing naked in his home, and that this alone is not "an overtly sexual act" and thus "not a lewd act." Id. at 18.
When reviewing a challenge to the sufficiency of the evidence, "our standard of review is de novo [and] our scope of review is limited to considering the evidence of record, and all reasonable inferences arising therefrom, viewed in the light most favorable to the Commonwealth as the verdict winner." Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). Evidence is sufficient where it proves every element of the crime beyond a reasonable doubt. See Commonwealth v. Webber, 306 A.3d 921, 925 (Pa.Super. 2023).
A person commits the crime of open lewdness "if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed." 18 Pa.C.S.A. § 5901. Section 5901 "must be read as restating the established, common-law standard which has long existed in this Commonwealth[,]" which defines open lewdness as "an act of gross and open indecency which tends to corrupt the morals of the community." Commonwealth v. Berrios, 297 A.3d 798, 804 (Pa.Super. 2023) (cleaned up). Conduct involving "public nudity" or "public sexuality" that "represents . . . a gross departure from accepted community standards" is sufficient to support a conviction under Section 5901. Commonwealth v. Williams, 574 A.2d 1161, 1163 (Pa.Super. 1990).
Lyons's claim is meritless. The evidence established that Lyons knocked on the window of his home to get the attention of the two minors outside. He then opened his blinds and "play[ed] with himself" while in the view of the minors. See N.T., Preliminary Hearing, 9/8/22, at 10. While the victim testified that she could not tell if Lyons's hands were moving while he touched his genitals, she did testify that she saw his hands on his genitals, he was "playing" with himself, and he was nude. She also testified that while he touched himself, Lyons smiled at her. Additionally, Lyons did not walk away or close the curtains once he noticed that minors were outside his window.
Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence proved every element of the crime of open lewdness beyond a reasonable doubt. Lyons's knocking on the window and smiling at the minors while displaying himself naked in the window was sufficient to prove "an act of gross and open indecency" that he knew to be likely observed by others who would be affronted or alarmed. Berrios, 297 A.3d at 804; cf. Williams, 574 A.2d at 1163 (concluding evidence was insufficient to prove open lewdness where appellant was merely in a parking lot wearing a t-shirt and underwear).
Lyons's remaining claim challenges his second count of lewdness. He contends that this Court's holding in Laudadio requires this Court to vacate his conviction. We agree.
This Court held in Laudadio that a person cannot be convicted of multiple counts of open lewdness based on a single act, even though there is more than one victim. 938 A.2d at 1056. Here, the court found Lyons guilty of two counts of open lewdness based on a single act, one count for each minor victim. Therefore, we vacate the conviction and sentence for Lyons's second count of open lewdness. We do not remand for resentencing since the sentence consisted of consecutive terms of one year of probation, each of which was the statutory maximum, and Lyons has completed one year of probation. See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super. 2006); 18 Pa.C.S.A. §§ 106(b)(8), 1104(3).
Judgment of sentence affirmed in part and vacated in part.
The court purported to vacate the second count of open lewdness. See Rule 1925(a) Op. at 10 ("count four is hereby vacated"). However, the court lacked jurisdiction to do so once Lyons appealed See Pa.R.A.P. 1701(a) ("after an appeal is taken . . . the trial court . . . may no longer proceed further in the matter").
Judgment Entered.