Com. v. Booth, R.

J-S23020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT J. BOOTH, JR. : No. 1773 EDA 2016
Appeal from the Order Dated May 25, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005705-2015
BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED JULY 07, 2017
Appellant, the Commonwealth of Pennsylvania, appeals from the order
of the Court of Common Pleas of Philadelphia County, entered on May 25,
2016, that dismissed the Commonwealth’s case against Appellee-Defendant
Robert J. Booth, Jr., on the basis of due process for pre-arrest delay. We
reverse and remand.
The Complainant, J.M., alleges that, between 1988 and 1991, when
she was 8 to 11 years old, her uncle, Appellee, had unlawful sexual contact
with her. N.T., 6/4/15, at 13-15; Trial Ct. Op. at 1-3, 6. The alleged crimes
occurred primarily on school days between 3:30 P.M. and 8:00 P.M. in
Appellee’s second floor bedroom in the home of Complainant’s grandmother,
who is recently deceased.
On August 22, 2014, the Complainant contacted law enforcement for
the first time. N.T., 3/23/16, at 24; Trial Ct. Op. at 1. On April 21, 2015,
J-S23020-17
Appellee was arrested and charged with involuntary deviant sexual
intercourse by forcible compulsion, aggravated indecent assault without
consent, and sexual assault.1
A preliminary hearing was held on June 4, 2015, at which the
Complainant testified. She could not identify any living witnesses who were
in the house during any of the alleged incidents, could not recall any
particular time or date for the allegations of abuse, and did not testify as to
why she waited over two decades to report the alleged assaults. N.T.,
6/4/15, at 13-15; Trial Ct. Op. at 2-3.
On March 25, 2016, after a hearing, the trial court dismissed all
charges. On May 25, 2016, the trial court heard and dismissed the
Commonwealth’s motion for reconsideration.
The Commonwealth now raises the following issue on appeal:
Did the lower court err by dismissing charges on the basis of due
process for pre-arrest delay and lack of specificity where the
relevant delay in reporting the offenses was not caused by the
prosecution and the charges alleged a continuing course of
criminal conduct against an eight-year-old child sex abuse
victim?
Commonwealth’s Brief at 3.
“[C]ourts should apply a standard of review that pays substantial
deference to the powers of the executive branch of government in deciding
when to file criminal charges.” Commonwealth v. Snyder, 713 A.2d 596,
1
18 Pa.C.S. §§ 3123(a)(1), 3125(1), and 3124.1, respectively.
-2-
J-S23020-17
605 (Pa. 1998) (internal quotation marks omitted). In determining whether
pre-arrest delay violates due process, the “inquiry must consider the reasons
for the delay and whether it resulted in actual prejudice to the accused.” Id.
at 604. “[E]ven in the face of prejudice, delay is excusable if it is a
derivation of reasonable investigation. Thus, it is clear that any inquiry into
pre-arrest delay must be directed to both the existence of prejudice to the
defendant and to the cause of the delay.” Commonwealth v. Wright, 865
A.2d 894, 901 (Pa. Super. 2004) (per curiam) (emphasis omitted; citation
and internal quotation marks omitted), appeal denied, 885 A.2d 533 (Pa.
2005). A finding of either prong alone is insufficient; both prongs must be
established in order to conclude that a defendant’s due process rights have
been violated. For the second prong, the defendant must show “that the
delay was an intentional device” used by the prosecution “to gain a tactical
advantage over the accused.” Commonwealth v. Neff, 860 A.2d 1063,
1073 (Pa. Super. 2004) (citation omitted), appeal denied, 878 A.2d 863
(Pa. 2005); see also Snyder, 713 A.2d at 605 (at a minimum, a showing of
more than mere negligence in the conduct of a criminal investigation is
required).
In the case before us, the Commonwealth argues that the two-prong
test was not satisfied. It states:
Even assuming that [Appellee] was prejudiced by the delay in
initiating criminal proceedings, due process is offended only
where such delay is attributable to wrongful conduct on the part
of the Commonwealth. Here, the Commonwealth promptly and
-3-
J-S23020-17
properly filed charges less than a year after the victim reported
[Appellee]’s crimes to law enforcement for the first time. Nor
was [Appellee] entitled to relief on the theory that the victim
could not specify the dates of the ongoing sexual abuse she had
suffered at his hands as a young child with greater particularity.
The [trial court]’s order should be reversed and the case
remanded for trial.
Commonwealth’s Brief at 7.
The trial court’s opinion comprehensively discusses and properly
disposes of the first prong of the test to establish a due process claim for
pre-arrest delay under Snyder, 713 A.2d at 604 – i.e., prejudice:
Due process of law requires that a defendant be advised of the
dates of an alleged offense with some degree of particularity in
order for him to be able to properly defend himself.
Commonwealth v. Wilson, 825 A.2d 710, 715 ([Pa. Super.]
2003) (citing Commonwealth v. Devlin, 333 A.2d 888, 890
([Pa.] 1975)). The Commonwealth need not definitely prove the
dates laid in the indictment. Commonwealth v. Luktisch, 680
A.2d 877[, 880] (Pa. Super. 1996). Rather, the standard is that
the date of the offense be proved with “reasonable certainty.”
Commonwealth v. Levy, 146 Pa. Super. 564, 23 A.2d 97, 99
(1941). As noted by the Devlin court, where allegations lack a
precise date and time, courts will consider many factors in light
of all aspects of the case, including whether or not the failure to
plead a precise date limits the ability of the defendant to present
an alibi defense. Devlin, 333 A.2d 888 at 891. While it is true
that a relaxed standard applies to cases of abuse against a
minor, “any leeway permissible would vary with the nature of
the crime and the age and condition of the victim, balanced
against the rights of the accused.” Id. at 892.
In the instant matter, the twenty-five year (25) delay in filing
the charges against [Appellee] . . . provides grounds for
dismissal of the charges as it renders [Appellee] unable to
present a meaningful defense to the allegations. . . . [T]he
Commonwealth gained an unfair tactical advantage against
[Appellee] due to the lengthy passage of time and the loss of
critical defense testimony through death and memory loss.
Specifically, [Appellee] cannot produce witnesses who might
-4-
J-S23020-17
provide exculpatory testimony about his location at the date and
time of each alleged incident, nor can he produce documents and
records to corroborate work schedules, recreational activities,
appearances at social events or proof of residency. He cannot
call the only witness alleged by the [C]omplainant to have
possibly been present at the scene of the alleged abuse as she is
recently deceased. . . .
Aggravating the prejudice against [Appellee], attributable to the
extended delay in bringing these charges, is the fact that
[Appellee] faces a three-year period of accountability [for the
criminal acts of which he is accused]. Analyzing the Devlin
factors along with all other aspects of the case, the
Commonwealth’s failure to plead a precise date eliminates any
potential alibi for the dates and/or times in question.
Information to the effect that the crime was committed on any
single weekday afternoon within a [three]-year period does not
meet the “reasonable certainty” rule announced in Levy, as it
prevents [Appellee] from any fair opportunity to discover
evidence that would indicate his conduct on the days in question.
A spread of dates that covers three years, combined with the
allegation that is over twenty[] years old, significantly prejudices
[Appellee] and causes an inadequate opportunity to defend.
Trial Ct. Op. at 5-6.
The Commonwealth counters that Commonwealth v. Devlin, 333
A.2d 888 (Pa. 1975), is inapplicable to the current case because Devlin
involved “a single offense [that] was alleged to have occurred at some
wholly unspecified time during a fourteen month period.” Commonwealth’s
Brief at 12-13. Instead, the Commonwealth states that Commonwealth v.
Niemetz, 422 A.2d 1369 (Pa. Super. 1980), is controlling, because “a
different analysis must be employed where the perpetrator’s acts were
ongoing.” Commonwealth’s Brief at 13. The Commonwealth continues that
“it would not ‘serve the ends of justice to permit a person to rape or
-5-
J-S23020-17
otherwise sexually abuse his child with impunity simply because the child
has failed to record in a daily diary the unfortunate details of her childhood.’”
Id. (quoting Niemetz, 422 A.2d at 1373).
However, the trial court was not concerned only about Appellee
suffering prejudice due to the duration of the alleged abuse. See Trial Ct.
Op. at 5-6. The trial court’s apprehension was based primarily on the
inexplicable “lengthy passage of time” from the end of the ongoing series of
alleged crimes in 1991 to the reporting of them in 2014. Id. at 2, 5-6
(citing N.T., 6/4/15, at 13-15). Although the Complainant was still a minor
in 1991, she was in her mid-thirties by 2014. Niemetz is distinguishable
from the current action because the victim in Niemetz reported her abuse a
few months after the last abusive act, once she had reached the safety of a
rape crisis center. Here, the Complainant waited about two decades to
report the alleged crimes, which occurred after a “critical” witness (her
grandmother) had died, and she failed to proffer any reason for the delay,
such as regaining repressed memories. Id. at 2 (citing N.T., 6/4/15, at 13-
15). Niemetz is inapposite and does not ameliorate the concerns about
prejudice. Thus, the trial court did not err in concluding that the first prong
of the test for a due process claim based on pre-arrest delay was satisfied,
as the delay caused Appellee prejudice for all of the reasons that the trial
court explained. See Snyder, 713 A.2d at 604.
-6-
J-S23020-17
However, a finding of prejudice alone is insufficient to hold that a
defendant’s due process rights were violated by any pre-arrest delay. See
Wright, 865 A.2d at 901. Here, the trial court failed separately to analyze
the second prong of the due process test — whether the delay was the fault
of the Commonwealth. To the extent that the trial court’s conclusions about
fault can be extrapolated from its analysis, we note that the trial court
stated that the “delay in filing the charges” was “through no fault of the
Commonwealth,” Trial Ct. Op. at 5 (emphasis added), but that, “[w]hether
done intentionally or not, the Commonwealth gained an unfair tactical
advantage against [Appellant] due to the lengthy passage of time and the
loss of critical defense testimony through death and memory loss.” Id. at 6.
Thus, the trial court did not find “that the delay was an intentional device”
employed by the Commonwealth, a required element of the due process
analysis. See Neff, 860 A.2d at 1074. Indeed, the trial court wrote that it
could not tell whether the delay was “done intentionally or not.” Trial Ct.
Op. at 5. In the absence of a finding of intent, the Commonwealth cannot
have culpability. Neff, 860 A.2d at 1074; Snyder, 713 A.2d at 605.
Because Appellee did not show “that the delay was an intentional
device” used by the prosecution, Neff, 860 A.2d at 1074, the second prong
of the due process test was not established. Thus, we hold that the trial
court improperly dismissed the Commonwealth’s case against Appellee.
Order reversed. Case remanded. Jurisdiction relinquished.
-7-
J-S23020-17
Judge Olson joins the memorandum.
Judge Musmanno files a concurring statement in which Judge Olson
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
-8-