Commonwealth v. Brooks

DISSENTING OPINION BY

LAZARUS, J.:

Because the Commonwealth failed to establish when the offenses against G.W. occurred with any particularity, defendant’s fundamental due process rights were violated and, therefore, I respectfully dissent.

This case stems from Brooks’ alleged abuse of C.B. and G.W. Brooks is the biological father of C.B. and formerly the boyfriend of G.W.’s deceased mother Sherry Walls.¹ At the time of trial, C.B. was a 12-year-old male and G.W. was a 14-year-old female. C.B. and G.W. each testified via closed-circuit television that' Brooks abused them inside an apartment they shared with Brooks and Walls. C.B. testified that Brooks forced him to perform oral sex and that Brooks sodomized him. G.W. testified that Brooks forced her to perform oral sex on him. Both testified Brooks threatened them with physical abuse if they did not comply.

The jury convicted Brooks with regards to his actions against G.W., of two counts of involuntary deviate sexual intercourse (“IDSI”) by forcible compulsion, two counts of IDSI by threat of forcible compulsion, two counts of IDSI of a child, two counts of sexual assault, two counts of indecent assault lack of consent, two counts of indecent assault by forcible compulsion, two counts of indecent assault of a child, and one count of indecent assault by threat of forcible compulsion.²

The jury acquitted Brooks of the same charges as they related to his alleged sexual misconduct toward C.B. The jury, however, convicted Brooks of two counts of endangering the welfare of a child (“EWOC”), arising from his conduct toward C.B. and G.W.³ The trial court sentenced Brooks to an aggregate term of twenty-two and one-half to forty-five years’ imprisonment.

Brooks argues that the evidence was insufficient to sustain his convictions because the Commonwealth did not establish the dates of the offenses with sufficient certainty.⁴ He relies on Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975), for the principle that fundamental due process requires the Commonwealth prove the commission of the offenses charged upon a date fixed with reasonable certainty. Devlin, 333 A.2d at 889. A Devlin claim is a form of motion in arrest of judgment. Commonwealth v. Fanelli, 377 Pa.Super. 555, 547 A.2d 1201, 1203 (1988) (en banc). If the claim is meritorious, the proper remedy is to vacate the judgment of sentence and discharge the defendant. Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83, 90 (1988).

In passing upon a motion in arrest of judgment, all of the testimony which has been admitted into evidence must be evaluated. This evidence is viewed in the light most favorable to the Commonwealth and the Commonwealth is entitled to the benefit of all favorable inferences which may be drawn from the evidence.

Commonwealth v. Groff, 378 Pa.Super. 353, 548 A.2d 1237, 1242 (1988) citing Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977).

In Devlin, the defendant was accused of sodomizing a mentally retarded adult. Id. at 889. The Commonwealth’s proof at trial provided only that the crime occurred at some unspecified time during the fourteen-month period from February, 1971 to April, 1972. Id. Defendant argued that because the Commonwealth’s allegation as to the time of the offense was so vague, he was precluded from preparing a defense to the charges against him. The Pennsylvania Supreme Court agreed and held that the defendant’s trial had been so fundamentally unfair as to be inconsistent with due process.⁵ The Court, however, declined to adopt a bright-line rule concerning the length of the time period in which the Commonwealth must establish the crime occurred. Instead, the Court emphasized that a case-by-case inquiry is appropriate.

The pattern of due process is picked out in the facts and circumstances of each case. Due process is not reducible to a mathematical formula. Therefore, we cannot enunciate the exact degree of specificity in the proof of the date of a crime which will be required or the amount of latitude which will be acceptable. Certainly, the Commonwealth need not always prove a single specific date of the crime. 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.

Devlin, 333 A.2d at 892 (citations and quotations omitted).

In Commonwealth v. Jette, 818 A.2d 533 (Pa.Super.2003), the victim testified that appellant sexually abused him on a continual basis for a period of approximately two years beginning when he was eight-years-old. Id. at 535. In determining that the evidence was sufficient, this Court cited the trial court’s finding that the victim ably “described four of the worst incidents, describing generally when they occurred by month and generally what time of the year.” Id.

Likewise, in Commonwealth v. G.D.M., Sr., 926 A.2d 984 (Pa.Super.2007) (“G.D.M."), this Court addressed a similar issue in a case involving ongoing, repeated sexual abuse of a six-year-old victim from September 1997 through March 1998. Id. at 990. In G.D.M. the victim was able to identify three different occasions on which his father abused him during the seven-month period of abuse. The victim remembered the month and year the abuse began because it correlated with his entry into kindergarten. The victim also recalled the month and year the abuse ended because it correlated with his father’s arrest. On appeal, appellant claimed the evidence was insufficient to sustain his convictions because the Commonwealth failed to establish the approximate dates on which the offense occurred. G.D.M., 926 A.2d at 989. This Court concluded that:

[u]nder these circumstances, we find that the due process concerns of Devlin are satisfied where the victim, as here, can at least fix the times when an ongoing course of molestation commenced and when it ceased.

Id. at 990 (emphasis added).

In the case sub judice, we are presented with a similar situation involving offenses the Commonwealth alleges occurred continuously from May through August of 2001. I am constrained to conclude that the Commonwealth has failed to establish when the offenses occurred with sufficient particularity to withstand Brooks’ due process challenge, because the victims could neither fix the times the ongoing abuse commenced nor when it ceased. G.D.M., supra. While the Commonwealth is not required to prove the crimes alleged occurred on the exact date set forth in the criminal information, Commonwealth v. Morrison, 180 Pa.Super. 121, 118 A.2d 258 (1955), and the Commonwealth has “broad latitude when attempting to fix the date of offenses which involve a continuous course of criminal conduct,” Commonwealth v. Groff, 378 Pa.Super. 353, 548 A.2d 1237 (1988); see also Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980); Commonwealth v. Yon, 235 Pa.Super. 232, 341 A.2d 169 (1975), the Commonwealth is not relieved entirely from establishing some defined time frame of when the crimes charged occurred. Devlin, supra. This is so even where the offenses charged involve a continuous course of criminal conduct. To do so would ignore the due process requirement that the Commonwealth prove the commission of the offenses charged upon a date fixed with reasonable certainty. Devlin, supra.

In this case, the Commonwealth presented the following evidence at trial. C.B. testified Brooks abused him when he lived with Brooks, Sherry Walls, and G.W. C.B. testified that the last time he lived with Brooks was “in the year 2001.” N.T. Trial, 9/17/08, at 79. He added that he was 4 years of age when he last lived with Brooks. Notably, C.B. was 4 years of age in the year 2000.

G.W. also testified that Brooks abused her when she lived with Brooks, Sherry Walls, and C.B. G.W. testified she was between the ages of 5 and 6 ’/¿ when she last lived with Brooks. The only testimony G.W. was able to provide about the timing of the alleged abuse was that the abuse occurred when it was light outside, and when the temperature was warm, which she remembers because she was wearing shorts. N.T. Trial, 9/17/08, at 116. Therefore, the abuse could have occurred at any time between April and October of any given year. Here, G.W. could not even specify whether she was in school, or identify the season of the year the abuse allegedly occurred.

In Jette, the victim testified that the abuse occurred over a two-year period beginning when the victim was eight-years-old. The victim described four of the worst incidents of abuse and identified what month and generally what time of the year the abuse occurred. In G.D.M., the victim specified a seven-month period of abuse, fixed in time by both month and year. This Court held that the due process concerns of Devlin were satisfied where the victim was able to “at least” establish when the abuse began and when the abuse ended. G.D.M., 926 A.2d at 990.

Here, neither C.B. nor G.W. testified to the month or year the abuse occurred. Neither testified the abuse occurred in the spring, summer, fall or winter. Neither testified to when the abuse commenced or when it ceased. Each testified only that the abuse occurred when they lived with Brooks. Such testimony might have adequately fixed the time frame in which the alleged abuse occurred had the Commonwealth specifically established when C.B. and G.W. lived with Brooks. This, the Commonwealth, however, was unable to do.

G.W. testified she was between 5 and 6 % years of age when she last lived with Brooks. According to that testimony, she last lived with Brooks sometime between the years 1999 and 2000. Appellant’s Brief, at 17. G.W.’s adoptive mother, Joyce Broomall, testified that G.W. lived with her on a permanent basis beginning in December of 2001. N.T. Trial, 9/17/08, at 130. Though this testimony appears to establish when G.W. ceased living with Brooks, it doesn’t establish when the abuse occurred.⁶ G.W. also testified that Brooks abused her when the temperature was warm. This testimony when viewed with Broomall’s testimony, even in the light most favorable to the Commonwealth as verdict winner, fails to establish with reasonable certainty a month or year when the abuse occurred. The abuse could have occurred when the temperature was warm in any year before 2001.

Likewise, C.B.’s testimony (if at all credible, since the jury acquitted Brooks of all charges but EWOC applicable to C.B.) fails to narrow the time frame in which the alleged abuse occurred to any specific month or year. C.B. testified he last lived with Brooks sometime in the year 2001 and the Commonwealth could only confirm that C.B. entered foster care sometime in 2001. N.T. Trial, 9/18/08, at 121. Moreover, although C.B. testified he was 4 years of age the last time he lived with Brooks, he would have been 4 years of age in 2000 and five years of age in 2001. Appellant’s Brief, at 16. This evidence, as a matter of due process, fails to afford the defendant a reasonable time frame from which to frame his defense.

Given the lack of evidence presented by the Commonwealth at trial, the trial court’s conclusion that the Commonwealth presented sufficient evidence to prove the abuse occurred between May 2001 and August 2001 is unsupportable. The trial court relies solely on C.B.’s testimony that “the alleged crimes occurred every day” and G.W.’s testimony that “the Defendant abused her when it was warm outside and she was wearing shorts.” Trial Court Opinion, 12/29/09, at 7. This testimony, however, on its face fails to fix any month, series of months, or year within which the abuse occurred.

It is similarly perplexing that the learned majority relies upon the trial court’s faulty reasoning. See Majority Opinion, at 858-59. Indeed, the majority concludes that the record supports the trial court’s finding that the Commonwealth presented sufficient evidence to prove the abuse occurred between May 2001 and August 2001. Like the trial court, the majority fails to specify anywhere in the record where the evidence indicates that the abuse occurred within any time frame. Neither the trial court nor the distinguished majority has explained how the Commonwealth, in this case, fixed, with reasonable certainty, the time frame within which the crimes are said to have occurred. Devlin, supra.

The majority also fails to address that portion of G.D.M. where this Court held that the due process concerns of Devlin were satisfied where the victim was able to “at least” establish when the abuse began and when the abuse ended. G.D.M., 926 A.2d at 990. The majority, instead, distinguishes G.D.M. in a cursory fashion along with another case cited by Brooks, Commonwealth v. Groff, 378 Pa.Super. 353, 548 A.2d 1237 (1988).⁷ In so doing, the majority states that neither case “holds that due process requires a victim of sexual abuse to provide temporal testimony of specific incidents that occurred during a prolonged period of abuse.” Majority Opinion, at 859.

While I agree with this, I would suggest, more to the point here, that what fundamental due process does require is that the Commonwealth present evidence fixing the date or dates, with reasonable certainty, upon which the crimes are said to have occurred. Devlin, supra. Indeed, in both Groff and G.D.M., the Commonwealth presented testimony either from the victim or other witnesses establishing, with reasonable certainty, the time frame within which the crimes alleged were said to have taken place. The absence of such evidence in the instant matter drives my determination that the Commonwealth failed to establish when the offenses occurred with sufficient particularity to withstand Brooks’ due process challenge.

Moreover, the Commonwealth’s argument that it fixed the dates of the alleged abuse with reasonable certainty is also unavailing. The Commonwealth argues:

The instant matter involves even more convincing facts than those upon which this Court decided G.D.M., 5r.[,] as in G.D.M., Sr., the abuse occurred continually over the period, daily in the case of C.B., and at least 10 times in the case of G.W. Each child testified the abuse occurred during the pei-iod in which they lived in an apartment in Chester with defendant and Sherry Walls.

Commonwealth’s Brief, at 13.

I disagree that this case involves facts more convincing than those presented to this Court in G.D.M. In G.D.M., the victim was able to indicate when the abuse began and when the abuse ended by both month and year. Here, C.B. and G.W. could do no more than allege that the abuse occurred when they lived with Brooks at some undefined time in the past. Evidence that Brooks abused the children during the period in which they lived with Brooks and Sherry Walls may well have established a fixed time period of when the abuse occurred. But the Commonwealth failed to establish with any degree of certainty when the children lived with Brooks.

Under these circumstances, the due process concerns of Devlin were not satisfied because the Commonwealth failed to establish when the abuse occurred with reasonable certainty. The cases herein do not stand for the proposition that the Commonwealth need not prove any dates at all. Rather, they indicate the Commonwealth must at least present evidence the crimes charged occurred during some span of months during some identified year, so that the defendant may be afforded a reasonable opportunity to frame his defense. Devlin, supra; Jette, supra; G.D.M., supra. Where the Commonwealth charges a defendant with committing certain offenses during a defined time period, due process cannot allow the Commonwealth to simply present evidence that the crimes occurred at some amorphous time in the past. To allow this would be to strip that defendant of his due process right to defend himself against those charges. The Commonwealth cannot sustain a conviction merely by proving that the alleged offenses were committed upon some unshown date or dates in the past.

Because the Commonwealth failed to establish when the offenses occurred with sufficient particularity to withstand Brooks’ due process challenge, I would reverse the trial court and vacate Brooks’ judgment of sentence.

1 . Walls died unrelated to any actions by Brooks.

2 . 18 Pa.C.S.A. § 3123(a)(1), 18 Pa.C.S.A. § 3123(a)(2), 18 Pa.C.S.A. § 3123(b), 18 Pa.C.S.A. § 3124.1, 18 Pa.C.S.A. § 3126(a)(1), 18 Pa.C.S.A. § 3126(a)(2), 18 Pa.C.S.A. § 3126(a)(7), and 18 Pa.C.S.A. § 3126(a)(3), respectively.

3 . 18 Pa.C.S.A. § 4304(a)(1).

4 . Because of my disposition on this issue I do not address the other issues raised.

5 . The Devlin Court based its holding on both the due process clause of the Fourteenth Amendment and on the state constitution, which provides that no one can be "deprived of life, liberty, or property, unless by the judgment of his peers or by the law of the land.” Pa. Const. art. I § 9. Devlin, 333 A.2d at 891.

6 . Note that G.W. never testified that the abuse ended when she stopped living with Brooks.

7 . In Groff, this Court determined that the Commonwealth proved with sufficient specificity the time frame within which the offense occurred (during the summer of 1985) to withstand appellant’s due process challenge under Devlin, despite that the victim could not recall when the abuse occurred, and could say only that she was living in appellant’s house and had been wearing a bathing suit at the time the incident occurred. Groff, 548 A.2d at 1239; 1242. The Commonwealth did so by eliciting testimony from other witnesses that during the summer of 1985, the victim complained that her ’’pee-pee” hurt, the victim said that appellant did “bad things,” the victim began to kiss her grandmother on the lips, and the victim appeared to be under great strain. Id. at 1248.