Com. v. Conte, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN CONTE :
:
Appellant : No. 954 EDA 2020
Appeal from the PCRA Order Entered March 6, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000403-2016
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 07, 2020
Appellant John Conte appeals from the Order entered in the Court of
Common Pleas of Monroe County on March 6, 2020, denying his first petition
filed pursuant to the Post Conviction Relief Act (PCRA).1 We affirm.
A prior panel of this Court set forth the relevant facts and procedural
history herein as follows:
The first stage of this criminal prosecution was in January
2016 when the Pocono Mountain Regional Police interviewed
M.C.B., then 29 years old, about an alleged sexual assault and
rape that she said occurred when she was a minor. M.C.B. related
to the police that starting when she was 4 or 5 years old, her
father, [Appellant], raped and assaulted her on several occasions.
During that time period, she was living with her mother and
[Appellant], as well as siblings. Although she could not specify the
exact dates of the attacks, she believed they occurred when she
was between the ages of 4 and 8 years old.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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On January 29, 2016, a Criminal Complaint was filed against
[Appellant] charging him with multiple counts of Rape1,
Involuntary Deviate Sexual Intercourse2, Aggravated Indecent
Assault3, all as felonies, and Endangering the Welfare of Children
and two other misdemeanor charges.
There were a number of pretrial matters, which were
addressed by the trial court. A jury trial was held in March 2017.
At the multi-day trial, M.C.B. testified, as did her mother and
brothers. A number of other family members also testified for the
prosecution. On the defense side, [Appellant] and his current wife
testified, as well as other family members and friends.
As well-stated by [Appellant] in his Appellate Brief, the
testimony at trial painted an amazingly different picture of the
[Appellant] household during the era in which M.C.B. testified
about the sexual assaults. “Specifically, M.C.B.'s part of the
family, centered around her mother Rose, painted [Appellant] as
a cruel, vindictive, and violent man who harbored no dispute in
the house, and regularly meted out physical punishment on Rose
and the children, with the exception of M.C.B. who he treated as
a princess.” Appellant's Brief at 8. The defense witnesses
portrayed [Appellant] in a very different light. Although they
testified that discipline was applied, the household was warm and
often the place of welcoming visits from family and friends.
At the conclusion of the trial, [Appellant] was convicted of
the single charge of Endangering the Welfare of Children. A pre-
sentence investigation report was prepared and submitted to the
trial court. Sentencing occurred on June 20, 2017; [Appellant] was
sentenced to the statutory maximum of thirty to sixty months'
incarceration. [Appellant] filed a Motion to Reconsider Sentence
and Post-Trial Motions, which were denied on November 21, 2017,
following a hearing.
___
1 18 Pa.C.S.A. § 3121(a).
2 18 Pa.C.S.A. § 3123(a)
3 18 Pa.C.S.A. § 3125(a).
Commonwealth v. Conte, 198 A.3d 1169, 1172-73 (Pa.Super. 2018)
(footnotes omitted). This Court affirmed Appellant’s judgment of sentence,
and Appellant filed a Petition for Allowance of Appeal with the Pennsylvania
Supreme Court which was denied on April 17, 2019.
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Appellant filed the instant PCRA petition on August 27, 2019. Following
a hearing held on December 19, 2019, the PCRA court denied Appellant’s
petition on March 6, 2020.
On April 2, 2020, Appellant filed his Notice of Appeal with this Court,
and his Statement Pursuant to Pa.R.A.P. 1925 on April 13, 2020. The trial
Court filed its Statement Pursuant to Pa.R.A.P. 1925(a) on April 16, 2020,
wherein it referenced its reasoning previously set forth in its March 6, 2020,
in support of its decision to dismiss Appellant’s PCRA petition.
In his brief, Appellant presents the following question for this Court’s
review:
Whether the Lower Court erred by denying Appellant's PCRA
Petition despite trial counsel's failure to file a pretrial motion to
quash the charge of Endangering the Welfare of Children (EWOC)
due to the charge being time-barred by the statute of
limita[t]ions.
Appellant’s Brief at 4.
When reviewing the denial of a PCRA petition, we consider “whether the
PCRA court's determination is supported by the record and free from legal
error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)
(internal quotation marks and citation omitted). Our standard of review of
the PCRA court's legal conclusions is de novo. Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015).
“With respect to claims of ineffective assistance of counsel, counsel is
presumed to be effective, and the petitioner bears the burden of proving to
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the contrary.” Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)
(citation omitted). Moreover,
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quotation omitted).
Pursuant to the United States Supreme Court's decision of Strickland
v. Washington, 466 U.S. 668 (1984), and the Pennsylvania Supreme Court's
decision in Commonwealth v. Pierce, 527 A.2d 973, 975-977 (Pa. 1987),
to prevail on a claim of ineffective assistance of counsel, the petitioner must
plead and prove three elements: 1) the underlying claim has arguable merit;
2) counsel had no reasonable basis for his action; and, 3) the petitioner
suffered prejudice as a result of counsel's action. Brown, 196 A.3d at 150. “If
a petitioner fails to prove any of these prongs, his claim fails.” Spotz, 84 at
311 (citation omitted).
Appellant contends trial counsel had been ineffective for failing to file a
motion in limine to dismiss the Endangering the Welfare of Children [EWOC]
charge, the sole charge of which he had been convicted, because the statute
of limitations had run thereon. Specifically, Appellant posits:
had defense counsel raised the issue of whether the EWOC charge
was time-barred, Appellant should have prevailed on that issue
and that charge should have been dismissed prior to the
commencement of trial. Inasmuch as EWOC was the only charge
Appellant was convicted of at trial, the outcome of the case would
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have been a full acquittal. Failure to raise the issue of whether a
charge that is clearly time-barred prior to trial cannot be based
upon any reasonable trial strategy. Appellant's theory of his
defense was that he didn't commit the acts charged against him.
It is patently unreasonable to place any defendant in jeopardy of
conviction on any charge that is time-barred. As a result of the
foregoing, this Court should grant Appellant's PCRA and discharge
him inasmuch as there would remain no charges upon which the
Commonwealth can try him.
Brief for Appellant at 13.
It is undisputed that trial counsel did not file a motion to dismiss the
EWOC charge based upon an argument the statute of limitations on that
charge had run. However, counsel’s reasons for and the prejudice resulting
from his failure to file such motion are less clear, for it cannot be said that a
motion to dismiss inevitably would have resulted in the dismissal of this charge
or that Appellant would not have been convicted of a more serious charge or
charges following trial. Indeed, as the Commonwealth stresses, Appellant was
charged with twenty-three (23) counts in the Criminal Information at least
twenty of which had a twelve year statute of limitations and were primarily
felony offenses, significantly more serious than the EWOC charge. Appellee
Brief at 2-3.
It was revealed at the PCRA hearing that trial counsel’s primary focus
during trial had been on obtaining Appellant’s acquittal on those charges,
which stemmed from allegations of abuse that spanned twenty years.
Ultimately, Appellant was found not guilty of rape and related sexual offenses.
See Appellee Brief at 2-3; N.T. PCRA Hearing, 12/19/19, at 6-12. However,
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trial counsel admitted he “did not have any reason to not file a bill of
particulars.” N.T. PCRA Hearing, 12/19/19, at 11. At the PCRA hearing,
appellate counsel argued:
And I think that whether or not it was tolled all should
have been issues that should have been raised pretrial. There are
all issues that should have been raised in two ways:
One. By filing a bill of particulars requesting for the
specific information that the Commonwealth is alleging rose to the
level of endangering in this case.
And then two: After you get that information from the
Commonwealth, you can then make a motion to have the
endangering charge quashed, that court of the information.
Unless the Commonwealth can show that statute was tolled.
PCRA Hearing, 12/19/19, at 19.
In light of all of the foregoing, assuming, arguendo Appellant has
shown trial counsel had no reasonable basis for filing a motion to quash the
EWOC charge, we next determine whether his claim has arguable merit.
On finding that the statute of limitations on the EWOC charge had
been tolled between 1998 and 2003, the PCRA court detailed its
reasoning as follows:
If trial counsel filed a Motion to Dismiss pleading and proving
that an applicable statute of limitations barred the prosecution,
[Appellant] could not have been convicted. Therefore, if we find
proof that [Appellant] had a viable limitations defense, we may
find arguable merit and prejudice: However, if trial counsel had
an objectively reasonable basis to believe that no limitations
defense applied, a reasonable basis existed to not present a futile
argument.
We do find that the statute of limitations would not defeat
this prosecution. As the defense does not apply, trial counsel had
a reasonable basis not to present to the [c]ourt a meritless claim
for relief.
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The statutes of limitations appear at 42 Pa.C.S.A. § 5552.
The version in effect at the time of the alleged crimes provided 2
years for the Commonwealth to file the EWOC charge.5 It was
alleged that the sex crimes occurred while the victim was between
the ages of 6 and 9, which would place the most-recent acts as
allegedly occurring between 1992 and 1995. If no exception
applied under the statute then in effect, the limitations period
would have expired by the end of 1997 at the latest.
Effective 60 days from December 19, 1990, the legislature
amended 42 Pa.C.S.A. § 5552 by enacting law 1990 P.L. 1341,
no. 208. This added an exception to the statute of limitations so
that prosecution for listed sex offenses against a minor could
begin within 2 years after the victim turns 18. The exception
covers EWOC. 42 Pa.C.S.A. [§]5552(c)(3) (this exception remains
in effect in the current version). Subsequently, the legislature
extended the limitations period for certain sex offenses against a
minor, allowing prosecution to commence any time before the
victim reaches 50, effective January 29, 2007. P.L. 1581, No. 179.
This extension also covers EWOC. 42 Pa.C.S.A. 5552(c)(3)
(current version).
Although the limitations period would have run until 2004
under P.L. 1341 in ordinary course, it remained subject to
extension as applied to Defendant. The legislature can extend the
period retroactively if the period in effect on the date of the alleged
crime has not terminated.6 Commonwealth v. Harvey, 542 A.2d
1027, 1029-30 (Pa. Super. 1998). In cases in which a prior statute
of limitations has expired before an amendment becomes
effective, the cause of action has expired; and the new statute
cannot renew it. Commonwealth v. Riding, 68 A3d 990 (Pa. Super.
2013). We must now determine whether the statutory period in
effect as of 1995 - the last year of the events for which [Appellant]
was convicted- did in fact end before the current statute
came into effect.
It will not have concluded if a tolling rule suspends the
running of the limitations period. The exception for continuous
absence from the Commonwealth does apply to toll the period.
The evidence taken at the PCRA hearing shows [Appellant] was
continuously absent from the Commonwealth for a prolonged
period.
This tolling provisions [sic] suspends the limitations period
when “the accused is continuously absent from this
Commonwealth or has no reasonably ascertainable place of abode
or work within this Commonwealth.” 42 Pa.C.S.A. § 5554(1). In
one case, our Superior Court held that a defendant's “fleeting
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contacts” in this state did not resume the limitations period once
he had domiciled himself elsewhere. Commonwealth v. Lightman,
489 A.2d 200 (Pa. Super. 1985). They characterized as fleeting
the defendant's hospital stays, visits with relatives, and driving of
a company truck occasionally through Pennsylvania in the course
of his employment. Id. These do not constitute residency or
provide an ascertainable address at which to find the defendant.
Id. However, a defendant may make themselves [sic] available if
they regularly reappear within the Commonwealth.
Commonwealth v. Turner, l 07 A.2d 136 (Pa. Super. 1954).
At the PCRA hearing, we received evidence that [Appellant]
moved to Florida sometime in 1997 or 1998. [Appellant] held
employment in the Florida Department of Corrections in Punta
Gorda between 1999 and 2007, according to the pre-sentence
investigation. He and his ex-wife later maintained a vacation
property in Monroe County that they visited each summer from
February, 2003 to February, 2006, according to [Appellant’s]
testimony. He did not have this property when he first relocated
to Florida. His testimony has him coming up “a lot”" to visit family
and unspecified friends; [Appellant] has family in Pennsylvania
and New Jersey.
These represent “fleeting contacts.” [Appellant]
continuously made his home in Florida, with his ex-wife in Florida,
and worked in Florida for approximately 10 years. Even assuming
he spent all summer for 3 years in a local vacation property, which
was not established at the hearing, vacationing for a couple
months does not interrupt his otherwise-constant presence in'
Florida. It does not provide a reasonably ascertainable address at
which he could be found, as the Commonwealth would have no
notice that [Appellant] was present on vacation. A vacation home
is not a fixed place of abode. Neither is it a place of work. We
conclude that [Appellant’s] absence tolled the statute of
limitations between 1998 and 2007.
In 1998 when [Appellant] relocated, 1990 P.L. 1341 set the
limitations period to begin running 2 years from the victim's 18th
birthday on February 16, 2004. [Appellant’s] absence suspended
the limitations period until he returned to Pennsylvania in 2007.
The statute of limitations had then not ended before P.L. 1581
became effective. Therefore, Pennsylvania had the lawful power
to extend the limitations period as applied to [Appellant] See
Harvey, 542 A.2d at 1029-30.
The statute of limitations as presently amended runs until
the victim reaches 50. The victim has not turned 50. Therefore,
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the statute of limitations as applied to [Appellant] did not bar this
prosecution.
Trial counsel did, then, have a reasonable basis not to file a
motion to dismiss, because the remedy that motion would seek
does not apply to [Appellant]. [Appellant’s] ineffectiveness claim
must then fail.
__
5 This section provided for a 12-year statute of limitations
applicable to Rape, Involuntary Deviate Sexual Intercourse, and
Aggravated Indecent Assault. 42 Pa.C.S.A. § 5552(b.1).
6 [Appellant] believes a line of cases progressing to the federal
District Court for the Middle District of Pennsylvania instructs
otherwise. Spanier v. Libby, 2019 WL 1930155 (M.D. Pa., April
30, 2019), recommendation of the magistrate judge adopted by
the court, 2019 WL 1923928 (April 30, 2019). The Commonwealth
in that case argued that it committed no violation of the federal
ex post facto clause by amending criminal law before the
applicable statute of limitations had expired. The court ruled
against them. However, the Habeas petitioner committed an act
that was not criminal at the time it occurred and only became
criminal 6 years later, and it made no difference that the
limitations period that would have applied to the now-criminalized
act had not concluded before the legislature defined it as a crime.
Here, the Commonwealth alleged that [Appellant] committed acts
indisputably criminalized at the time they would have occurred.
This removes the issue before this [c]ourt from the ex post facto
rights recognized in Spanier.
Trial Court Opinion, filed 3/6/20, at 6-10.
Following our review of the record, we agree with the PCRA court’s
cogent analysis. The record reflects that Appellant moved back to
Pennsylvania in 2007. Prior thereto, he had been employed by the
Florida Department of Corrections in Florida since 1999. He alleged for
the first time at the PCRA hearing that he spent some time at his
vacation home in Pennsylvania. This late revelation does not negate the
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fact that he had “no reasonably ascertainable place of abode or work
within this Commonwealth” 42 Pa.C.S.A. §5554(1) prior to 2007.
Therefore, pursuant to that statute, the period of limitation was tolled
during that time. See id. Thus, when the victim turned eighteen years
of age in 2004, and the statute of limitations had not yet run.
In light of the foregoing, Appellant has failed to prove he was
prejudiced as a result of trial counsel's failure to file a pretrial motion to quash
the EWOC charge on the basis that it was time-barred. See Brown, 196 A.3d
at 150
Finding no abuse of discretion, we affirm the trial court’s Order
denying Appellant’s PCRA petition.
Order affirmed.
PJ Panella concurs in the result.
Judge McCaffery files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/20
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