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During Wednesday morning’s oral arguments session before the Pennsylvania Supreme Court, a Delaware County deputy district attorney was pressed hard as to whether the “catch-all” provision of the state’s anti-child porn possession law leaves trial judges instructing juries to employ a “call ‘em as they see ‘em” standard in determining which photographs of nude children are intended to sexually arouse the viewer. Though they did not indicate how they will rule on the appeal in Commonwealth v. Davidson, Chief Justice Ralph J. Cappy and Justice J. Michael Eakin peppered Delaware County Deputy District Attorney Andrew Kovach with numerous hypotheticals that highlighted potential problems with the way defendants are prosecuted under the nude pictures provision of � 6312 of Pennsylvania’s Crimes Code. The appeal stems from the November 2002 conviction of Joseph Davidson after police found roughly 500 pieces of what was alleged to be child pornography on his home computer, according to the Superior Court’s opinion on the matter. Some depicted children engaging in explicit sexual acts, others depicted children in varying degrees of nudity. Davidson was ultimately convicted on 28 counts, the sentences for which he served concurrently. The Superior Court panel in Davidson had affirmed the judgment of sentence. Davidson’s attorney, solo practitioner W. Wayne Punshon of Media, argued first before the justices, reasoning that � 6312 is unconstitutionally vague or overbroad. Punshon further argued that his client should not have been charged with multiple counts of possession when his having multiple pictures on his computer amounted to one single possession. Under � 6312(a), Punshon noted, “prohibited sexual acts” under the law are defined as either specific acts, such as intercourse or masturbation, or simply nudity “depicted for the purpose of sexual stimulation.” Thus, Punshon asserted, Pennsylvania’s anti-child porn possession law focuses on whether the viewer of a particular photograph of a nude child knew that that picture was created by the photographer for the express purpose of arousing sexual stimulation. In many cases tried under the law, the person viewing such a photograph is the same person who took it, so intent is relatively easy to prove, Punshon said. But in Davidson, he continued, there was no evidence presented that Davidson knew that the nude child shots in his possession were created by the photographer for the purpose of sexually arousing the viewer. Turning to the multiple counts issue, Punshon argued that his client should have been charged with one count of possession, not 28. A number of anti-possession laws, such as those affecting illicit narcotics, clearly define what the difference is between single and multiple possessions, he said. Justice Ronald D. Castille called attention to the fact that it is possible that individual pictures represent separate acts of victimization against children. Cappy then asked Punshon what the commonwealth would need to prove under Davidson’s reading of the law. Punshon responded that prosecutors would need to show that all the nude pictures in a defendant’s possession were known by that defendant to have been created by the photographer with the intent of arousal. Justice Sandra Schultz Newman later asked whether the possessor of thousands of child pornography images should be subject to the same penalties as the possessor of one. Punshon said that he or she should be, again referencing some of the state’s other anti-possession laws. Taking his turn at the lectern, Kovach began by noting that the trial court was not “draconian” in sentencing Davidson after he was found guilty on 28 counts — he was sentenced to concurrent terms, and has already served his sentence. Kovach then argued that in accruing his database of images, Davidson had committed more than a single act of downloading illicit material. He also said that the average citizen would be able to tell that even the nude shots in Davidson’s collection were pornographic in nature. Cappy asked how the pictures in question were different from innocent shots of nude children. Kovach responded that it is easy to spot nude shots of children that are pornographic by their setting and context. A shot of a baby in a bathtub doesn’t naturally feature a provocative pose or a clear focus on the child’s genitalia, he argued. Cappy asked if the fact that Davidson had pictures of photos depicting children engaged in sexual acts affected the categorization of the nude shots in his collection as child pornography. Kovach said that that did not occur in Davidson, as the nude shots in Davidson’s collection, even standing alone, were clearly pornographic in nature. But some circumstantial facts should be permissible as evidence that images are pornographic — such as which Web site they were downloaded from, Kovach said. Cappy asked what would happen if a pervert had in his or her possession, for nefarious purposes, innocent photographs of nude children put on the Internet by their proud grandparents. Kovach responded that the possessor would probably not be charged with a crime in relation to the originally innocent photos. Cappy then asked what distinguishes that scenario from one in which the possessor is charged under the law. Is the distinction, he asked, whether it can be shown that the defendant knew if the photo was taken “by grandma or by some professional pervert?” Kovach responded that the prosecution would have to show that the purpose of the photo was known by the possessor to be sexual arousal. “Whose mind is at play?” Cappy then asked — the photographer’s or the possessor’s? Kovach responded that the focus must be on the intent of the photograph. Cappy asked what the prosecution in Davidson had proved on that point. Kovach said that when an ordinary person looks at the nude shots in Davidson’s collection, he or she knows it’s pornography. “So, you know it when you see it?” Cappy asked. He then told Kovach that the court needs to consider the quantum of proof, and that he and his fellow justices are as opposed to child pornography as Kovach is. Kovach again responded that the pictures speak for themselves. Cappy later asked whether the judge should instruct the jury to determine — based on no clear standard or evidence presented regarding the photographer’s intent — whether the photo itself is intend to sexually arouse the viewer. Kovach reiterated that a picture’s setting, the subject’s pose and other factors indicate whether a photo is pornographic in nature or not. Later, Eakin pressed Kovach on how juries in such trials are to be instructed when deciding what constitutes pornography. “There are 1,000 shades of grey,” Eakin said. He later asked at what age a picture of a nude child is considered inappropriate. Eakin said he agreed with Cappy that if the justices choose to uphold the trial judge and Superior Court, that decision has to be based on some concrete standard. Kovach again pointed to the context of a photo — is the subject running nude in a backyard, he said, or holding his or her crotch? “So, if [a photo's nude child subject] is lying on a leopard skin couch,” Eakin asked, “then we know?”

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