Com. v. Conte, J. ( 2020 )

J-S52036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.*
DISSENTING MEMORANDUM BY McCAFFERY, J.:
FILED DECEMBER 07, 2020
Because I conclude trial counsel was ineffective for failing to file a
pretrial motion to quash the EWOC charge as time barred, I would reverse the
order denying PCRA relief. Accordingly, I respectfully dissent.
Prior to 2007, a prosecution for EWOC based upon sexual offenses
committed against a minor had to be commenced within two years after the
minor victim turned 18 years old. See 42 Pa.C.S. § 5552(c)(3), 1990 Dec.
19, P.L. 1341, No. 208, § 1, effective in 60 days. Section 5552(c)(3) was
amended, effective January 29, 2007, to permit the commencement of a
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S52036-20
prosecution up to the date the minor victim reaches the age of 50.1 See 2006,
Nov. 29, P.L. 1581, No. 179, § 7, effective in 60 days [Jan. 29, 2007].
Although the amended statue was effective after Appellant committed the
crime herein, “in the absence of language in the statute to the contrary,” we
calculate the limitations period under the amended statute when “the prior
period of limitation has not yet expired[.]” See Commonwealth v. Riding,
68 A.3d 990, 994 (Pa. Super. 2013) (citation omitted). Moreover, pursuant
to 42 Pa.C.S. § 5554(1), a limitations period is tolled “during any time when
. . . the accused is continually absent from this Commonwealth or has no
reasonably ascertainable place of abode . . . within this Commonwealth[.]” 42
Pa.C.S. § 5554(1).
Relying on the PCRA court’s opinion, the Majority concludes Appellant’s
charge of EWOC was not time-barred. Majority Memorandum at 6-9. Rather,
it determines the statute of limitations was tolled from 1997 or 1998 until
2007 — while Appellant lived in Florida — so that the limitations period did
not expire before the January 2007 amendment was effective. Id. at 8-9.
See id. at 10 (“[W]hen the victim turned eighteen years of age [on February
16,] 2004, . . . the statute of limitations had not yet run.”). Thus, the Majority
agrees with the PCRA court that the amended limitations period was
applicable to Appellant, and the prosecution was properly commenced before
____________________________________________
1 The statute was again amended in 2019 to extend the limitations period until
the minor victim reaches the age of 55. See 2019, Nov. 26, P.L. 641, No. 87,
§ 4, imd. effective.
-2-
J-S52036-20
the minor victim reached the age of 50. Accordingly, the Majority concludes
trial counsel was not ineffective for failing to file a pretrial motion to quash the
EWOC charge since such a claim would have been meritless. Id. at 9-10.
My disagreement with the Majority’s decision focuses on the tolling
statute. See 42 Pa.C.S. 5554(1). I conclude Appellant established he was
not “continually absent from this Commonwealth” and had a “reasonably
ascertainable place of abode . . . within this Commonwealth”2 before the
expiration of the two-year period after the victim reached the age of 18. Thus,
in my view, the limitations period expired in 2006, and counsel was ineffective
for failing to file a pretrial motion to quash the EWOC charge as time-barred.
As noted above, Section 5554 provides for the tolling of the limitations
period when an accused is “continuously absent from this Commonwealth or
has no reasonably ascertainable place of abode . . . within this
Commonwealth[.]” 42 Pa.C.S. § 5554(1). It does not, however, define the
terms “continuously absent” or “no reasonable ascertainable place of
abode[.]” See id.
In Commonwealth v. Stockard, 413 A.2d 1088 (Pa. 1980), the
Pennsylvania Supreme Court held a trial court did not err when it tolled the
statute of limitations for the defendant’s crime based on the testimony of a
state investigator. The investigator explained that “after conducting a very
thorough search” for the defendant, they determined the defendant “had no
____________________________________________
2 42 Pa.C.S. § 5554(1).
-3-
J-S52036-20
legal residence or office to our knowledge in the state of Pennsylvania since
1974[,]” before the statute of limitations had expired. Id. at 1092 (internal
punctuation omitted). The findings were corroborated by the defendant’s
testimony at a pretrial hearing. Id. at 1092 n.8 (defendant testified in January
1977 that he had been living in Ohio for past “two and a half years”). In
Commonwealth v. Lightman, 489 A.2d 200 (Pa. Super. 1985), this Court
held that a defendant’s “fleeting contacts with the Commonwealth such as
hospital visits, visits with unspecified relatives, or driving a company truck to
unspecified locations in eastern Pennsylvania” were not sufficient to establish
“a ‘reasonably ascertainable’ place of abode or work[ ]” for purposes of Section
5554. Id. at 203.
However, in Commonwealth v. Turner, 107 A.2d 136 (Pa. Super.
1954), a panel of this Court concluded a defendant, who lived in the state of
Delaware during the relevant limitations period, but was continuously
employed in Delaware County, Pennsylvania, was “‘constructively at least
within the grasp of process’ of the Delaware County authorities during the
limitation period[.]”3 Id. at 138 (citation omitted). Therefore, the panel
concluded the statute of limitations was not tolled. Id.
At the PCRA hearing in the present case, Appellant testified that
although he moved to Florida in 1997 or 1998, he purchased a vacation home
in Pennsylvania sometime in 2003 or 2004, and visited the home “[a]lmost
____________________________________________
3 The Turner panel also emphasized that the defendant was accused of
defrauding the same company that employed him. Turner, 107 A.2d at 138.
-4-
J-S52036-20
every summer” between 2004 and 2006. N.T., 12/19/19, at 29-30.
Moreover, trial counsel testified that the victim actually lived with Appellant in
Florida for a period of time, and that Appellant “stayed in contact with [the
victim’s mother] because they had several children together who still resided
in Pennsylvania with her.” Id. at 14. Counsel explained:
[Appellant’s] whereabouts were certainly known. There was no
mystery about where he was. [The victim and her mother] were
aware of his location the entire time he was in Florida[.]
Id.
Based upon the testimony at the PCRA hearing, I conclude Appellant
established he had a “reasonably ascertainable place of abode . . . within this
Commonwealth” when he purchased his vacation home in 2003 or 2004. See
42 Pa.C.S. § 5554(1). In my view, his ownership of property in Pennsylvania,
which he visited each summer, satisfies the requirements of the statute, and
certainly constitutes more than the fleeting contacts described by this Court
in Lightman.4 Thus, I conclude the statute of limitations began to run again
when Appellant purchased his vacation home in 2003 or 2004, and would have
expired before the statute was amended effective January 2007. Accordingly,
I would conclude the PCRA court erred in not finding trial counsel was
____________________________________________
4 The Commonwealth did not present any evidence or testimony at the hearing
to dispute Appellant’s assertion that he owned a vacation home in
Pennsylvania prior to 2007. Although the Majority describes this fact as a
“late revelation[,]” it bears emphasis that the Commonwealth did not request
a continuance to investigate. See Majority’s Memorandum at 9.
-5-
J-S52036-20
ineffective for failing to file a motion to quash the EWOC charge as time-
barred.
For these reasons, I respectfully dissent.
-6-