Com. v. Martz, D. ( 2020 )

J-S67044-19
2020 PA Super 104COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERECK MICHAEL MARTZ :
:
Appellant : No. 1528 MDA 2018
Appeal from the Judgment of Sentence Entered March 9, 2018
In the Court of Common Pleas of Montour County Criminal Division at
No(s): CP-47-CR-0000029-2014
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 28, 2020
Appellant, Dereck Michael Martz, appeals from the judgment of sentence
entered in the Court of Common Pleas of Montour County after a jury found
him guilty of five sex crimes he committed between the ages of 11 and 17
against a boy five years his junior. Receiving an aggregate sentence of 12 to
50 years’ incarceration, Appellant raises numerous issues for our review. We
affirm.
In this Court’s previous disposition of the Commonwealth’s interlocutory
appeal in this matter, we set forth pertinent facts and pre-trial procedural
history of the case, as follows:
Appellee was born on April 2, 1985. M.S. (“the victim”) was born
in April of 1990. On September 23, 2013, M.S., who was then
twenty-three years old, reported to Danville Police that he had
been sexually abused as a child on an ongoing basis by Appellee,
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* Former Justice specially assigned to the Superior Court.
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who was then twenty-eight years old. N.T., 7/30/14, at 3–6, 25.
On January 9, 2014, Appellee was charged in criminal court with
twelve counts of each of the following crimes: rape of a child,
involuntary deviate sexual intercourse with a child, statutory
sexual assault, aggravated indecent assault of a child, indecent
assault of a person less than thirteen years of age, and one count
of terroristic threats, totaling sixty-one charges. At the
preliminary hearing on January 27, 2014, the sixty sexual assault
counts were held for trial, and the single count of terroristic
threats was dismissed.
Appellee filed a Motion for Bill of Particulars on March 12, 2014,
seeking identification of the dates, times, and locations of the
sexual assaults. Request for Bill of Particulars, 3/12/14. He also
filed a Motion for Bill of Particulars or Other Appropriate Relief on
March 24, 2014. In that motion, Appellee sought dismissal of the
Information due to the alleged insufficiency of its allegations and
asserted that the Commonwealth did not adequately specify the
dates and circumstances of the charges against him, thereby
precluding him from formulating defenses. Motion for Bill of
Particulars or Other Appropriate Relief, 3/24/14, at unnumbered
2. On April 3, 2014, Appellee filed an omnibus pretrial motion
seeking, inter alia, dismissal based on prejudicial delay.
On May 9, 2014, due to Appellee's desire to proceed pro se, the
trial court held a colloquy pursuant to Commonwealth v.
Grazier, 552 Pa. 9, 713 A.2d 81 (1998), and Pa.R.Crim.P. 121.
In an order dated May 9, 2014, and filed May 22, 2014, the trial
court permitted Appellee to proceed pro se. Order, 5/22/14, at 1.
The trial court also held a hearing on Appellee's other pretrial
motions on May 9, 2014, as well as June 9, 2014. On June 27,
2014, the Commonwealth filed an Amended Information
containing more specific and detailed allegations. Therein, the
assaults were alleged to have begun in 1996 and continued until
2002. The hearing on Appellee's pretrial motions was resumed on
July 9, 2014. At the July 9, 2014 hearing, Appellee verbally raised
an “infancy defense” in which he sought dismissal of certain
counts based on his claim that because he was a child between
the ages of eleven and seventeen when the alleged abuse
occurred, he lacked capacity to commit the crimes. In an order
dated July 15, 2014, and filed July 18, 2014, the trial court
scheduled a supplemental hearing on the pretrial motions. That
hearing was held on July 30, 2014.
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On August 11, 2014, the trial court entered the following order:
AND NOW, to wit, on this 11th day of August, 2014, on the basis
of the reasons set forth in the foregoing Opinion, it is ORDERED
as follows:
1. The Defendant's Motion for Bill of Particulars or
Other Appropriate Relief is DENIED;
2. The Defendant's oral Motion to Dismiss based upon
the Infancy Defense is GRANTED IN PART. Counts
1–9, 13–21, 25–33, 37–45, 49–57 shall be
dismissed to the extent that they encompass acts
occurring prior to April 2, 1999 when the Defendant
reached the age of 14. Those counts shall continue
to be subject to prosecution in the present case as
to time periods from and after April 2, 1999; and
3. The Defendant's Motion to Dismiss based upon
Prejudicial Delay, contained in the Omnibus Motion
filed on April 3, 2014, is DENIED.
Opinion and Order, 8/11/14, at 9.
In the opinion accompanying the August 11, 2014 order, the trial
court held there is a rebuttable presumption that Appellee did not
have the capacity to appreciate the wrongfulness of his conduct
through the age of fourteen. Opinion and Order, 8/11/14, at 3.5
It found that the Commonwealth had not rebutted that
presumption and, accordingly, dismissed counts based on
allegations of acts occurring prior to April 2, 1999, which was
when Appellee reached the age of fourteen. Id.Commonwealth v. Martz, 118 A.3d 1175, 1176-78 (Pa.Super. 2015).
The Commonwealth filed an interlocutory appeal to this Court, which
held, inter alia, that the infancy defense applies to criminal prosecutions for
conduct committed before age 14 and is a rebuttable presumption that a
defendant may raise before trial. Martz, 118 A.3d at 1183-84. We further
determined, however, that the trial court had not given the Commonwealth
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an adequate opportunity to rebut the presumption, and so we remanded the
matter for further proceedings consistent with our decision. Id. The
Commonwealth filed a petition for allowance of appeal with the Pennsylvania
Supreme Court, which initially granted the petition before eventually
dismissing the appeal as having been improvidently granted.
The case returned to the trial court, which instantly entered an order
directing that the Pennsylvania Office of Attorney General assume jurisdiction
over the prosecution of the present case. On January 9, 2017, the Office of
the Attorney General entered its appearance. Subsequent pre-trial
proceedings before the trial court resulted in court orders permitting the
Commonwealth to present evidence rebutting Appellant’s infancy defense and
to file an amended information reducing the number of charges to five. 1
Trial commenced on December 12, 2017, at the conclusion of which the
jury found Appellant guilty on all charges. Informed by a presentence
investigation report at the sentencing hearing of February 27, 2018, the trial
court imposed standard guideline range sentences of incarceration as follows:
5 ½ to 20 years for Rape of a Child; 5 ½ to 20 years for IDSI, to run
consecutive to Count 1; 1 to 10 years for Statutory Sexual Intercourse, to run
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1The charges were: 1) Rape of a Child, Person Less Than 13 Years of Age;
2) Involuntary Deviate Sexual Intercourse, Person Less Than 13 Years of
Age; 3) Statutory Sexual Assault; 4) Aggravated Indecent Assault, Person
Less Than 13 Years of Age; and 5) Indecent Assault, Person Less Than 13
Years of Age.
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consecutive to Count 1; 3 to 10 years for Aggravated Indecent Assault, to run
concurrent to Count 1; and 1 to 2 years for Indecent Assault; to run concurrent
to Count 1, for an aggregate sentence of 12 to 50 years’ incarceration. On
April 13, 2018, the court ordered that Appellant register as a lifetime sex
offender pursuant to the current version of Pennsylvania's Sex Offender
Registration and Notification Act (“SORNA II”), 42 Pa.C.S. § 9799.10 et seq.
This timely appeal followed.
Appellant presents the following questions for our consideration:
1. Did the lower court error [sic] by denying the Appellant’s pre-
trial motion to dismiss based upon prejudicial delay and the
statute of limitations and further erred [sic] because it was a
violation of the ex post facto clauses of the United States
Constitution, Article I, Section 10 and the Pennsylvania
Constitution, Article I, Section 10 and the Pennsylvania
Constitution, Article I, Section 17?
2. Did the lower court error [sic] when it denied the Appellant’s
Motion to Dismiss pursuant to Pa.R.Crim.P. 600?
3. Did the trial court error [sic] in denying the Appellant’s motion
to dismiss based on a violation of his right to a speedy trial
under both the United States and Pennsylvania Constitutions?
4. Did the lower court error [sic] when it denied the Appellant’s
Motion to Dismiss based upon the Infancy Defense?
5. Did the lower court abuse its discretion by permitting hearsay
evidence from a newspaper and to permit hearsay evidence
that the Appellant allegedly gave an admission at a preliminary
hearing?
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6. Did the lower court abuse its discretion by limiting evidence of
motive and bias in regards to the Appellant’s wife?
7. Did the lower court error [sic] in its sentence by considering
evidence before the Appellant’s 14th birthday and applying the
SORNA lifetime registration requirements?
Appellant’s brief, at 5.
Appellant first contends the lower court erred by denying his pre-trial
motion to dismiss raising ex post facto2 and prejudicial delay challenges to the
application of amended statutes of limitations that took effect after the time
of his alleged crimes. Specifically, in the relevant period, two amendments
extended the limitations period for sex crimes committed against minors, with
the most recent amendment permitting the filing of charges at any time prior
to a minor victim’s 50th birthday.
Appellant was charged with the above-mentioned sex offenses in
connection with his repeated sexual assaults of the minor victim from 1996
through 2002. At that time, the applicable limitations period would have
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2 “The ex post facto prohibition forbids the Congress and the States to enact
any law which imposes a punishment for an act which was not punishable at
the time it was committed; or imposes additional punishment to that then
prescribed.” Commonwealth v. Rose, 127 A.3d 794, 798 (Pa. 2015)
(citations and internal quotation marks omitted), cert. denied, 136 S.Ct.
2379 (2016). The ex post facto clause of the Pennsylvania Constitution
provides: “No ex post facto law, nor any law impairing the obligation of
contracts, or making irrevocable any grant of special privileges or immunities,
shall be passed.” (Pa. Const. Art. 1, § 17). The ex post facto clause of the
United States Constitution, meanwhile, provides: “No State shall ... pass any
Bill of Attainder, ex post facto Law, or Law impairing the Obligation of
Contracts ....” (U.S. Const. Art. 1, § 10).
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expired on April 18, 2013, five years after the victim’s 18th birthday. However,
on August 27, 2002, well before that expiration date, our legislature amended
the limitations statute to provide a 12-year limitations period following a minor
victim’s 18th birthday. See 42 Pa.C.S.A. § 5552 (b.1). As such, this first
amendment enacted in 2002 extended the limitations period in the present
case to April 18, 2020. As noted above, a subsequent amendment enacted in
2007 and still in effect further extended the limitations period, allowing the
filing of charges up to when the minor victim reaches age 50. See 42
Pa.C.S.A. § 5552(c)(3).3
Appellant claims that applying amendments enacted after he allegedly
committed his criminal acts as a juvenile violated his rights under the ex post
facto clause, because doing so permitted the filing of charges in his adulthood,
when he was subject to an increased penalty. Initially, we note there is no
factual basis for this argument, for the record reveals that Appellant, who
turned 18 years old in 2003, could have been charged in his adulthood well
within the limitations period as it existed at the time of his crimes.
Nor can Appellant prevail on his alternate ex post facto argument that
charges against him were filed on a date that would have been outside the
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3 A prosecution for rape, involuntary deviate sexual intercourse, statutory
sexual assault, sexual assault, indecent assault, aggravated indecent assault,
or indecent exposure, where the victim is a minor under age 18, may be
commenced any time before the later of: the period of limitation as calculated
from the victim's 18th birthday, or the victim's 50th birthday. 42 Pa.C.S.A.§
5552(c)(3);
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limitations period applicable at the time he allegedly committed his crimes. It
is well-settled that “for a criminal or penal law to be deemed an ex post facto
law, ‘two critical elements’ must be met: it must be retrospective, that is, it
must apply to events occurring before its enactment, and it must disadvantage
the offender affected by it.” Commonwealth v. Rose, 127 A.3d 794, 798
(Pa. 2015).
Appellant fails to meet the requirement of retrospectivity, or
retroactivity, cited above, as the Pennsylvania Supreme Court has recognized
that “[t]here is nothing ‘retroactive’ about the application of an extension of a
statute of limitations, so long as the original statutory period has not yet
expired.” Commonwealth v. Johnson, 553 A.2d 897, 900 (Pa. 1989). As
no iteration of the Section 5552 limitations period in this case expired prior to
the effective date of its successor, Appellant may not prevail on this claim.
See Commonwealth v. Spanier, 192 A.3d 141, 147 (Pa.Super. 2018),
appeal denied, 203 A.3d 199 (Pa.Super. 2019) (holding where the existing
statute of limitations had yet to expire at the time of its amendment, the
amended statute applies to the prosecution) (citing Commonwealth v.
Harvey, 542 A.2d 1027, 1030–31 (Pa.Super. 1988) (en banc ).4
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4 Appellant similarly posits that the timely filing of charges within the amended
statute of limitations period violated his due process rights because it is
difficult to remember what he was doing fourteen years earlier as a juvenile.
See Appellant’s brief, p. 14. As Appellant fails to develop this position with
citation to supporting authority, however, we deem this issue waived.
Pennsylvania Rule of Appellate Procedure 2119(a) provides that an appellant
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In Appellant’s second issue, he challenges the trial court’s order denying
his motion to dismiss pursuant to Pa.R.Crim.P. 600. Our standard of review
is as follows:
This Court reviews a ruling under Rule 600 pursuant to an abuse-
of-discretion standard. An abuse of discretion is not a mere error
in judgment but, rather, involves bias, ill will, partiality, prejudice,
manifest unreasonableness, or misapplication of law.
Additionally, when considering a Rule 600 claim, this Court must
view the record facts in the light most favorable to the winner of
the Rule 600 motion. It is, of course, an appellant's burden to
persuade us the trial court erred and relief is due.
Commonwealth v. Claffey, 80 A.3d 780, 787 (Pa. Super. 2013) (citations
omitted).
Additionally, when considering the trial court's ruling, this
Court is not permitted to ignore the dual purpose behind Rule 600.
Rule 600 serves two equally important functions: (1) the
protection of the accused's speedy trial rights, and (2) the
protection of society. In determining whether an accused's right
to a speedy trial has been violated, consideration must be given
to society's right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those contemplating
it. However, the administrative mandate of Rule 600 was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
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shall identify in his argument section the particular point treated therein,
followed by such discussion and citation of authorities as are deemed
pertinent. Appellant has failed to develop any argument in support of this
position in violation of Pa.R.A.P. 2119(a) and Pa.R.A.P. 2119(b), which
requires that “[c]itations of authorities must set forth the principle for which
they are cited.” Pa.R.A.P. 2119(b). This Court will not become the counsel for
an appellant and develop arguments on an appellant's behalf,
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super.2006). Waiver of
an issue results when an appellant fails to develop an issue properly or cite to
legal authority to support his contention in his appellate brief.
Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa.Super.2008).
Accordingly, Appellant has waived this aspect of his issue.
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So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule 600 must be construed in a manner
consistent with society's right to punish and deter crime. In
considering these matters ..., courts must carefully factor into the
ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Peterson, 19 A.3d 1131, 1134–35 (Pa. Super. 2011),
quoting Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007).
Rule 600 provides, in relevant part, as follows:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
...
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is filed against
the defendant shall commence within 365 days from the date on
which the complaint is filed.
...
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any stage
of the proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from the
computation.
...
Pa.R.Crim.P. 600.
Generally, Rule 600 requires that a defendant be brought to
trial within 365 days of the filing of the criminal complaint.
Pa.R.Crim.P. 600(A)(2)(a). However, a defendant is not
automatically entitled to discharge under Rule 600 where trial
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starts more than 365 days after the filing of the complaint.
Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super.
2013). Rather, Rule 600 “provides for dismissal of charges only
in cases in which the defendant has not been brought to trial
within the term of the adjusted run date, after subtracting all
excludable and excusable time.” Id. The adjusted run date is
calculated by adding to the mechanical run date, i.e., the date 365
days from the complaint, both excludable time and excusable
delay. Id. “Excludable time” is classified as periods of delay
caused by the defendant. Pa.R.Crim.P. 600(C)(2). “Excusable
delay” occurs where the delay is caused by circumstances beyond
the Commonwealth's control and despite its due diligence.
Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super. 2015).
“Due diligence is a fact-specific concept that must be determined
on a case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.”
Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super.
2013) (citation omitted). Due diligence includes, inter alia, listing
a case for trial prior to the run date, preparedness for trial within
the run date, and keeping adequate records to ensure compliance
with Rule 600. Commonwealth v. Ramos, 936 A.2d 1097, 1102
(Pa. Super. 2007). Periods of delay caused by the
Commonwealth's failure to exercise due diligence must be
included in the computation of time within which trial must
commence. Pa.R.Crim.P. 600(C)(1).
Commonwealth v. Moore, 214 A.3d 244, 248–49 (Pa.Super. 2019), appeal
denied, No. 445 MAL 2019, 2020 WL 547945 (Pa. Feb. 4, 2020).
After review of both the record and Appellant’s argument on this issue,
we discern no basis for granting relief. Specifically, we would apply Pa.R.A.P.
2119(a) to find waiver for Appellant's failure to develop a meaningful
argument with citation to relevant, legal authority on this claim in his appellate
brief. See Commonwealth v. Heilman, 867 A.2d 542, 546 (Pa.Super.
2005) (recognizing that failure to include “such discussion and citation of
authorities as are deemed pertinent” may result in waiver of claim);
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Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa.Super. 2004) (declining
to review claim where brief contains limited explanation and development of
argument).
Here, Appellant’s Rule 600 argument provides neither an accounting of
the time delays at issue nor any developed argument or citation to authority
to support his bare assertion that the court erroneously calculated excusable
and excludable time to the demise of his Rule 600 motion. Instead, his
argument consists of nothing more than a reference to the nearly four-year
time period between the January 2014 filing of charges and the October 2017
commencement of trial, and a general accusation that the record as it had
developed leading up to the motion in limine hearing on the eve of trial
provided insufficient evidence to support the court’s order denying his motion.
The Rules of Appellate Procedure [at Pa.R.A.P. 2119] state
unequivocally that each question an appellant raises is to be
supported by discussion and analysis of pertinent authority.
Appellate arguments which fail to adhere to these rules may be
considered waived, and arguments which are not appropriately
developed are waived. Arguments not appropriately developed
include those where the party has failed to cite any authority in
support of a contention. This Court will not act as counsel and will
not develop arguments on behalf of an appellant. [M]ere issue
spotting without analysis or legal citation to support an assertion
precludes our appellate review of [a] matter.
Coulter v. Ramsden, 94 A.3d 1080, 1088–89 (Pa.Super. 2014) (internal
citations and quotation marks omitted). Therefore, we find Appellant has
waived this claim for lack of development. Umbelina v. Adams, 34 A.3d
151, 161 (Pa.Super. 2011). See also Commonwealth v. Williams, 732
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A.2d 1167, 1175 (Pa. 1999) (noting relief is unavailable based upon
undeveloped claims for which insufficient argument is presented on appeal).
Even if Appellant had developed an argument for this issue, the record
supports the trial court’s acceptance of the Commonwealth’s methodical
calculation of the adjusted run date. See Trial Court Opinion, 7/3/19, at 2-4;
Commonwealth’s Brief for Appellee, at 14-16. Indeed, the timeline in question
comprised significant delays from both Appellant’s numerous pro se motions
requiring the scheduling of hearing dates and the Commonwealth’s successful
interlocutory appeal to this Court from the trial court’s ruling granting
Appellant’s motion to dismiss based upon the Infancy Defense.5 Accordingly,
we find no error in the trial court’s analysis and, therefore, conclude the trial
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5 This Court has held that “’excusable delay’ for purposes of Rule [600] review
includes delay caused by appellate review of pretrial motions.”
Commonwealth v. Ferri, 599 A.2d 208, 210 (Pa.Super. 1991) (finding entire
four-year delay caused by Commonwealth’s appeal was properly excluded
after this Court affirmed order severing charges and Supreme Court denied
Commonwealth’s petition for allowance of appeal); Commonwealth v.
Coleman, 491 A.2d 200, 201-02 (Pa.Super. 1985) (finding Commonwealth’s
unsuccessful two-year interlocutory appeal to the Supreme Court of
Pennsylvania tolled the speedy trial rule time, when such appeal was taken
for tactical reasons and not for delay). Notably, such holdings applied even
though the Commonwealth’s appeals were unsuccessful. The touchstone
inquiry in deciding whether time taken to seek interlocutory appellate review
for pretrial motions counts toward the 365-day calculation turns on whether
the Commonwealth acted in bad faith in taking the appeal. See
Commonwealth v. Matis, 710 A.2d 12, 17-19 (Pa. 1998) (holding, “Thus,
despite the fact that this Court had quashed the Commonwealth’s
interlocutory appeal, there was no evidence of bad faith on the part of the
Commonwealth in filing that interlocutory appeal, so the Commonwealth did
not “fail[] to exercise due diligence pursuant to Rule [600].”).
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court did not abuse its discretion in determining that Appellant’s trial started
before the adjusted run date.
Next, Appellant argues the trial court erred in denying his motion to
dismiss based on his constitutional right to a speedy trial. “In evaluating
speedy trial issues, our standard of review is whether the trial court abused
its discretion, and our scope of review is limited to the trial court's findings
and the evidence on the record, viewed in the light most favorable to the
prevailing party.” Commonwealth v. Miskovitch, 64 A.3d 672, 677 (Pa.
Super. 2013) (citation and quotation marks omitted). Speedy trial analysis
requires a two-step inquiry: “we first consider whether the delay violated
Pa.R.Crim.P. 600, and if not, we may proceed to the four-part constitutional
analysis set forth in Barker [v. Wingo, 407 U.S. 514 (1972)].”
Commonwealth v. Colon, 87 A.3d 352, 357 (Pa. Super. 2014). As we have
conducted a Rule 600 inquiry and discerned no violation of Appellant’s rights,
we proceed to Appellant’s discreet constitutional claim, which he raised and
preserved in a pretrial motion with the trial court.
In Commonwealth v. Hamilton, 297 A.2d 127, 130-33 (Pa. 1972),
the Pennsylvania Supreme Court deemed the Barker balancing test
inadequate to ensure a defendant's right to a speedy trial under the
Pennsylvania Constitution. The Court has also suggested that “the prompt
trial rule [i.e., Rule 600] ... represents the sole means of securing a
defendant's state constitutional right to a speedy trial.” Commonwealth v.
Meadius, 870 A.2d 802, 803 n.1 (Pa. 2005) (citing Commonwealth v.
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Whitaker, 359 A.2d 174, 176 (Pa. 1976). The Court has continued to apply
the balancing test in cases where an appellant presents independent claims
premised on both the procedural rule and the constitutional guarantees.
Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
Here, Appellant claims the 15-year period that transpired from when his
alleged crimes occurred to when the victim first reported the crime and
charges were filed violated his constitutional right to a speedy trial under the
state and federal constitutions. Appellant, however, misconstrues the
constitutional right to a speedy trial, as that right pertains to the time after
the filing of charges. To this point, the Pennsylvania Supreme Court has
explained:
The right to a speedy, public trial is “one of the most basic rights
preserved by our Constitution.” Klopfer v. North Carolina, 386
U.S. 213, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Because the
exercise of the government's power to detain an individual
pending a criminal prosecution places a heavy burden upon the
accused, the speedy trial guarantee “is an important safeguard to
prevent undue and oppressive incarceration prior to trial, to
minimize anxiety and concern accompanying public accusation
and to limit the possibilities that long delay will impair the ability
of an accused to defend himself.” United States v. Ewell, 383
U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). For a person
subject to pre-trial incarceration:
The time spent in jail awaiting trial has a detrimental
impact on the individual. It often means loss of a job;
it disrupts family life; and it enforces idleness. Most
jails offer little or no recreational or rehabilitative
programs. The time spent in jail is simply dead time.
Moreover, if a defendant is locked up, he is hindered
in his ability to gather evidence, contact witnesses, or
otherwise prepare his defense. Imposing those
consequences on anyone who has not yet been
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convicted is serious. It is especially unfortunate to
impose them on those persons who are ultimately
found to be innocent.
Barker, 407 U.S. at 532-33, 92 S.Ct. 2182. Moreover, even for
an individual who secures his release on bail and will await trial
outside of a jail cell, the foreboding promise of an impending
prosecution is a heavy weight to carry. “[E]ven if an accused is
not incarcerated prior to trial, he is still disadvantaged by
restraints on his liberty and by living under a cloud of anxiety,
suspicion, and often hostility.” Id. at 533, 92 S.Ct. 2182.
Because the power to deprive one of his liberty is of such
consequence, and because the attendant disturbance to one's life
is so momentous, the right to a speedy, public trial is a core
component of the procedural rights afforded to the accused under
the Constitution, “as fundamental as any of the rights secured by
the Sixth Amendment.” Klopfer, 386 U.S. at 223, 87 S.Ct. 988.
Commonwealth v. Barbour, 189 A.3d 944, 954–55 (Pa. 2018).
As such, Appellant’s reliance on Commonwealth v. Dallenbach, 729
A.2d 1218 (Pa.Super. 1999) is misplaced. In Dallenbach, this Court held
that repeated continuances by the trial court and Commonwealth, resulting in
an 18-month delay between the arrest of a juvenile and his adjudicatory
hearing, violated the juvenile’s Sixth Amendment speedy trial rights. 729
A.2d at 1220-1222. Dallenbach is thus distinguishable, as it involved post-
arrest delay caused by court and state action. In contrast, the delay
complained of in the case sub judice stemmed not from state action but from
the time taken by the victim to bring his accusations to authorities.
Moreover, to the extent Appellant seizes upon the passage in
Dallenbach stating, “the concept of ‘fundamental fairness’ in juvenile
proceedings would seem to require that at least some limit be placed on the
length of time between the delinquent act and the case disposition, including
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any associated punishment[,]” 729 A.2d at 1220, that passage must be read
within the factual context of Dallenbach, which involved an immediate arrest
followed by post-arrest delay. See, e.g., Sci. Games Int'l, Inc. v. Com.,
66 A.3d 740, 753 (Pa. 2013) (citing Oliver v. City of Pittsburgh, 11 A.3d
960, 966 (Pa. 2011) (reiterating the axiom that judicial holdings are to be
understood in light of their factual underpinnings). Indeed, the ensuing
paragraphs in the opinion develop the theme of the passage by discussing
only pertinent statutory authority on a juvenile’s right to a speedy
adjudicatory hearing after the filing of a juvenile petition, and constitutional
jurisprudence on speedy trial rights, all of which implicate the post-arrest
phase. 729 A.2d at 1220-1222. Accordingly, we cannot agree with Appellant
that Dallenbach expands speedy trial rights in the juvenile setting to require
inquiry into a minor victim’s pre-arrest delay in reporting a sex crime.
Appellant contends next that the trial court erred by denying his motion
to dismiss the case based on an infancy defense, as he claims the
Commonwealth failed to present sufficient rebuttal evidence to the defense.
Pennsylvania has traditionally adhered to the common law rule, as follows:
In Pennsylvania we have followed the common-law
rule in measuring the capacity of a child to commit a
crime. A child under the age of 7 years is conclusively
presumed incapable of the commission of a crime; a
child between the ages of 7 and 14 years is likewise
presumed incapable of committing a crime but such
presumption is subject to refutation by evidence that
the child does possess the criminal capacity; a child
over the age of 14 years is prima facie capable of the
commission of a crime.
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Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241, 246
(1959). Thus, “any special immunity or presumption of incapacity
ceases” when the child reaches fourteen. Commonwealth v.
Cavalier, 284 Pa. 311, 131 A. 229, 234 (1925).
...
This Court has discussed capacity, as that term is understood in
relation to the infancy defense, as follows:
Capacity, in terms of the infancy defense, refers, not
to the ability to formulate mens rea, ... but to the
ability to appreciate the criminality and wrongfulness
of one's acts. See F. McCarthy, The Role of the
Concept of Responsibility in Juvenile Delinquency
Proceedings, 10 University of Michigan Journal of Law
Reform 181, 183–185 (1977). It is this capacity, and
not the ability to formulate the necessary intention,
that is the subject of the common law presumptions
regarding children.
Interest of G.T., 597 A.2d at 640 (emphasis added). We have
previously held that the infancy defense remains a presumption in
criminal proceedings, although “such presumption is subject to
refutation....” Green, 151 A.2d at 246.
...
In summary, the common law defense of infancy is applicable to
the charges against Appellee until the time he turned fourteen
years old. However, it applies as a rebuttable presumption
between the ages of seven and fourteen. After careful review of
the certified record in this case, we conclude that the
Commonwealth was not given an adequate opportunity to present
rebuttal evidence, no doubt due in part to the convoluted nature
of the proceedings and Appellee's pro se status.
As noted supra, criminal responsibility is generally dependent
upon three factors: 1) proximity of age to either infancy or
puberty, 2) the nature of the offense, and 3) the mental capacity
of the offender. In re Tyvonne, 558 A.2d at 663. Relevant
evidence of capacity goes to an appreciation of the wrongfulness
of the conduct and may consist of, inter alia, prior experience with
the juvenile or criminal systems at the time of the offenses and
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attempts to conceal the alleged conduct.
Although we recognize the difficulty of producing such evidence
many years after the alleged conduct, the Commonwealth should
have been given a full and fair opportunity to produce such
rebuttal evidence. In not doing so, the trial court erred.
Commonwealth. v. Martz, 118 A.3d 1175, 1183 (Pa.Super. 2015).
According to Appellant, the Commonwealth failed to present any
rebuttal evidence that related to when he was 10 or 11 years old, or that
showed either his attempt to conceal the alleged conduct or his mental
capacity to commit crimes of a sexual nature. The record belies his
contention.
The Commonwealth produced evidence establishing the criminal
conduct was continuous from age 10 through 13, ages much closer to puberty
than to infancy, and consistently occurred in secluded locations such as under
a porch, in the woods, and inside tunnels of a children’s playground in a local
park. These two features—an age approaching puberty and choice of secluded
areas—showed Appellant’s appreciation of the wrongfulness and criminality of
his acts. The lack of eyewitnesses to any of the numerous acts over the years,
moreover, provided further evidence of Appellant’s understanding that his
conduct was wrong and required careful selection of secluded locations.
The Commonwealth also offered rebuttal evidence regarding Appellant’s
adjudication of delinquency for Arson at age 12. The evidence from the
juvenile hearing in that case showed Appellant had called 911 to report the
shed fire and initially denied responsibility. Eventually, however, he admitted
he started the fire with matches and lighter fluid. Such conduct on Appellant’s
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part, according to the Commonwealth, showed not only the sophistication to
call 911 to divert suspicion but also the appreciation of wrongful or criminal
behavior by thereafter denying any involvement during the official
investigation. It follows, the Commonwealth argued, that Appellant also
appreciated the criminality of sexually abusing the victim, M.S., who was then
just seven years old.
Additional rebuttal evidence at trial consisted of Appellant’s adjudication
of delinquency at age 13 for assaulting a ten-year old boy with taunts, threats
of harm, and holding a knife to the boy’s shirt. Evidence from that case
showed Appellant denied accusations offered by both the victim and
Appellant’s friend, who was an eyewitness to the event. Appellant also had
given a pseudonym to the victim at the time and lied to the police about his
involvement, which showed an appreciation of the wrongfulness of his actions.
Finally, the Commonwealth introduced evidence that Appellant
threatened to harm the victim if he told anyone about Appellant’s sex acts
against him as additional proof that he knew secrecy was vital because his
conduct was wrong.
Despite this record, Appellant argues this Court’s decision in In re
B.A.M., 806 A.2d 893 (Pa. Super. 2002) controls the instant matter. B.A.M.
involved two eleven-year-old boys, B.A.M. and J., who entered the woods on
their bikes one afternoon and had sex, with each performing anal sex on one
another. Later that day, J. told his grandmother that B.A.M. had forced him
to participate in the sexual activity, and she called authorities, who
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investigated the complaint. Id. Ultimately, the Commonwealth filed a
delinquency petition against only B.A.M.
The juvenile court adjudicated B.A.M. delinquent for acts constituting
rape (victim under 13) and involuntary deviate sexual intercourse (IDSI)
(victim under 13), but dismissed allegations regarding forcible compulsion and
lack of consent. Id. B.A.M. appealed, contending, “an 11–year–old boy
[should not be held] criminally responsible for having consensual sexual
relations with another 11–year–old boy.” Id.On appeal, this Court reversed B.A.M.'s adjudication. Discerning in
governing statutory authority a legislative intent to protect children from older
predators, we concluded there is “no legitimate interest in prosecuting
consensual activity between two children under 13. Any contrary conclusion
would lead only to absurdity.” Id. However, while we suggested that sexual
activity between peers is not necessarily a crime, we reasoned that the same
behavior becomes criminal when the ages of the participants are “significantly
disparate and/or the acts were not mutually agreed upon.” Id.This Court has limited B.A.M. to its particular facts. In In re C.R., 113
A.3d 328 (Pa.Super. 2015), a twelve-year-old juvenile relied on B.A.M. to
claim that he could not be adjudicated delinquent for sexual acts because he
was under thirteen years of age. We rejected the juvenile's argument, noting
that B.A.M. did “not hold that a 13–year–old cannot be held criminally liable
for initiating sexual activity; rather, it held that one child could not be held
criminally liable for the acts of two 11–year–olds who consensually engaged
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in the conduct.” Id. at 334 (emphasis in original). We thus distinguished
B.A.M. as involving actions shown to be consensual.
Additionally, this Court stressed the limited nature of B.A.M.’s holding,
explaining that “[w]ere we to have worded our holding in B.A.M. more
precisely, we would have strictly limited the holding to its facts wherein
mutually agreed upon sexual activity between peers under the age of 13 is
not a crime.” Id. at 335 (citation omitted).
For the same reasons expressed in In re C.R., we reject Appellant’s
reliance on B.A.M. in the case sub judice. First, the instant case does not
involve peers, as Appellant was five years older than the victim, who was just
five years old when the four-year course of abuse commenced. Second, the
record supports the finding that Appellant committed the sexual acts without
the victim's consent. Lastly, to Appellant’s argument that B.A.M. stood for
the proposition that being under age 13 relieved the juvenile of liability, see
Appellant’s brief at 29, we note that so reading B.A.M. would effectively
absolve individuals under the age of thirteen from criminal liability in any sex
case. See In re C.R., 113 A.3d at 335, supra. Accordingly, this claim has no
merit.
In Appellant’s sixth issue, he avers the lower court abused its discretion
when it ruled he could not introduce evidence that his wife, prior to their
marriage, had dated the victim in 2016 and made two separate sexual assault
accusations against the victim in April and August of 2016. Authorities,
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however, determined the episodes were consensual and filed no charges
against the victim.
Appellant nevertheless argued that the evidence was properly
admissible to show the victim’s bias and his motivation to fabricate the
allegations he raised against Appellant. The trial court addressed this issue
first in granting the Commonwealth’s motion in limine to preclude such
evidence as inadmissible under the Rape Shield Law, and again at trial when
it sustained a Commonwealth objection when defense counsel asked Ms.
Auker during direct examination whether she dated the victim in 2016.
This Court has established that a trial court's ruling on the admissibility
of a sexual abuse victim's prior sexual conduct will be reversed only where
there has been a clear abuse of discretion. Commonwealth v. K.S.F., 102
A.3d 480, 483 (Pa.Super. 2014). “An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is overridden or
misapplied or the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias, or ill will, as shown by the evidence or the record,
discretion is abused.” Id. (citation and quotation omitted).
The Rape Shield Law provides, in pertinent part, as follows:
Evidence of specific instances of the alleged victim's past sexual
conduct, opinion evidence of the alleged victim's past sexual
conduct, and reputation evidence of the alleged victim's past
sexual conduct shall not be admissible in prosecutions under this
chapter except evidence of the alleged victim's past sexual
conduct with the defendant where consent of the alleged victim is
at issue and such evidence is otherwise admissible pursuant to the
rules of evidence.
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18 Pa.C.S. § 3104(a).
This Court has recently observed:
The purpose of the Rape Shield Law is “to prevent a trial from
shifting its focus from the culpability of the accused toward the
virtue and chastity of the victim.” Commonwealth v. Burns,
988 A.2d 684, 689 (Pa.Super. 2009) (citation omitted).
Moreover, “[t]he Rape Shield Law is intended to exclude irrelevant
and abusive inquiries regarding prior sexual conduct of sexual
assault complainants.” Id. See also Commonwealth v.
Largaespada, 184 A.3d 1002, 1006 (Pa.Super. 2018), appeal
denied, ––– Pa. ––––, 197 A.3d 223 (2018).
“[P]rior sexual conduct with third persons is ordinarily
inadmissible to attack the character of the [complainant] in sex
offense cases. 1A Wigmore, Evidence § 62 (Tillers rev. 1983).”
Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396, 398
(1985) see also Commonwealth v. Fink, 791 A.2d 1235, 1241-
42 (Pa.Super. 2002). Notwithstanding, where “the evidence of
prior sexual conduct was not offered merely to show any general
moral turpitude or defect of the [complainant], but rather to
reveal a specific bias against and hostility toward appellant and a
motive to seek retribution by, perhaps, false accusation[,]” the
evidence may be admissible. Black, at 398-399.
In addition, the Rape Shield Law applies to sexual activity that
occurred before trial regardless of whether it was before or after
the alleged sexual assault. See Commonwealth v. Jones, 826
A.2d 900, 908-909 (Pa.Super. 2003) (“[The Pennsylvania
Supreme Court has explained that the specific purpose of the
Pennsylvania Rape Shield Law is to prevent a sexual assault trial
from degenerating into an attack upon the collateral issue of the
complainant's reputation rather than focusing on the relevant
legal issues and the question of whether the events alleged by the
complainant against the defendant actually occurred. This
purpose is not fostered by limiting application of our Rape Shield
Law to sexual conduct that occurred before the incident giving rise
to criminal charges but allowing a defendant to besmirch a
complainant with accusation and innuendo based on her conduct
after an alleged rape.”).
In K.S.F., this Court further explained:
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Although the literal language of the Rape Shield Law
would appear to bar a wide range of evidence, courts
have interpreted the statute to yield to certain
constitutional considerations implicating the rights of
the accused. See, e.g., Commonwealth v. Riley,
434 Pa. Super. 414, 643 A.2d 1090, 1093 (Pa. Super.
1994) (right to cross-examine witnesses).
Evidence that tends to impeach a witness' credibility
is not necessarily inadmissible because of the Rape
Shield Law. [ ]Black, 487 A.2d [at] 401. When
determining the admissibility of evidence that the
Rape Shield Law may bar, trial courts hold an in
camera hearing and conduct a balancing test
consisting of the following factors: “(1) whether the
proposed evidence is relevant to show bias or motive
or to attack credibility; (2) whether the probative
value of the evidence outweighs its prejudicial effect;
and (3) whether there are alternative means of
proving bias or motive or to challenge credibility.” Id.K.S.F., 102 A.3d at 483-484. As such, evidence of a claimant's
sexual history may be admissible if “the evidence is relevant to
exculpate the accused, more probative than prejudicial, and non-
cumulative in nature.” Commonwealth v. Guy, 454 Pa.Super.
582, 686 A.2d 397, 401 (1996), appeal denied, 548 Pa. 645, 695
A.2d 784 (Pa. 1997).
Commonwealth v. Jerdon, --- A.3d ----, 2019 PA Super 202 (July 1, 2019),
reargument denied (Aug. 22, 2019).
In the instant matter, there is no indication that the victim, M.S., had a
relationship with Ms. Auker at the time he reported his sexual abuse
allegations against Appellant to authorities in 2013. Therefore, his alleged
relationship with Ms. Auker three years later in 2016 was irrelevant to the
issue of whether he harbored a motive to fabricate his initial allegations. Nor
does Appellant claim the victim’s subsequent statements, including those at
trial, diverged from his original allegations.
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As Appellant fails to demonstrate that the evidence was in any way
relevant or probative to the question of the victim’s bias and motive to lie
when he made his allegations against Appellant, we find that questioning the
victim about the nature of his relationship with Ms. Auker would have
accomplished nothing other than shifting the jury’s focus from the culpability
of Appellant to the sexual history of the victim, in violation of the Rape Shield
Law. Accordingly, discerning no error with the trial court’s evidentiary rulings,
we find Appellant’s claim offers him no relief.
In his final issue, Appellant raises two distinct challenges to the legality
of his sentence. We review the legality of a sentence de novo, and our scope
of review is plenary. Commonwealth v. Strafford, 194 A.3d 168, 172 (Pa.
Super. 2018).
First, Appellant argues that his aggregate sentence of standard range
sentences, amounting to a 12 to 50 year sentence, for acts that occurred
before his 14th birthday violates both the due process clause and the ex post
facto clause of the United States and Pennsylvania Constitutions. In support
of his contention, Appellant simply directs our attention to the infancy defense
and statute of limitations arguments he raised in earlier issues—arguments
we have already determined lack merit—without developing these positions
any further. We, therefore, find this argument unavailing.
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In his second legality of sentence claim, Appellant baldly asserts that
his lifetime registration under SORNA II6 constitutes cruel and unusual
punishment, as he states “[i]t is unconscionable that a sentence for an
Appellant who was under the age of 14 could have lifetime consequences.”
Appellant’s brief, at 38-39.
This Court, however, has held that a defendant waives his constitutional
challenges to SORNA II where “he fails to provide any discussion, whatsoever,
concerning the alterations made by the General Assembly in crafting SORNA
II in response to Muniz[7] and Butler[8].” Commonwealth v. Cosby, ---
A.3d ----, 2019 PA Super 354, at 45 (Pa.Super. 2019) (holding failure to
discuss alterations in SORNA II made in response to Muniz and Butler
resulted in waiver of claim under Pa.R.A.P. 2119(a), as such discussion is
____________________________________________
6 Appellant’s sentencing hearing took place on April 13, 2018, at which time
Act 10 of 2018, which became effective on February 21, 2018, had taken
effect.
7 Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding registration
requirements under Pennsylvania’s Sex Offender Registration and Notification
Act (SORNA) constitute criminal punishment and retroactive application is ex
post facto violation).
8 Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (holding SVP
determination process utilized under Pennsylvania’s Sexual Offender
Registration and Notification Act (“SORNA I”) unconstitutional). Although
Butler does not pertain to the present issue, we note that on March 26, 2020,
the Pennsylvania Supreme Court reversed this Court with its decision in
Commonwealth v. Butler, --- A.3d ----, 2020 WL 1466299 (Pa. March 26,
2020), which held SORNA’s RNC requirements applicable to SVPs do not
constitute criminal punishment, thus obviating the need to prove SVP status
beyond a reasonable doubt in accordance with principles set forth in Apprendi
or Alleyne.
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“critical to any pertinent analysis of whether SORNA II’s SVP provisions were
punitive and, thus, subject to state and federal prohibitions of ex post facto
laws.”). Id.Here, Appellant does not acknowledge any material statutory change
effected by SORNA II, nor does he address specifically the constitutionality of
SORNA II. Indeed, in this respect, Appellant’s brief provides no discussion of
whether SORNA II is punitive under the seven-factor constitutionality test set
forth by the United States Supreme Court in Kennedy v. Mendoza-
Martinez, 372 U.S. 144 (1963). Accordingly, he has waived this claim for
lack of development and discussion. See also Pa.R.A.P. 2119.
For the foregoing reasons, we affirm judgment of sentence.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/28/2020
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