Commonwealth v. Martz

J-A08007-15
2015 PA Super 144COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DERECK MICHAEL MARTZ,
Appellee No. 1502 MDA 2014
Appeal from the Order Entered August 11, 2014
In the Court of Common Pleas of Montour County
Criminal Division at No(s): CP-47-CR-0000029-2014
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
OPINION BY SHOGAN, J.: FILED JUNE 24, 2015
Appellant, the Commonwealth of Pennsylvania, appeals from the
order1 entered on August 11, 2014, applying the infancy defense and
dismissing those counts of the amended information (“Information”) that
encompass acts occurring prior to April 2, 1999, when Appellee, Dereck
*
Retired Senior Judge assigned to the Superior Court.
1
While the appealed order is interlocutory, the Commonwealth, in its notice
of appeal, certified that the trial court’s August 11, 2014 order substantially
handicapped the prosecution of this case. See Pa.R.A.P. 311(d) (“In a
criminal case, . . . the Commonwealth may take an appeal as of right from
an order that does not end the entire case where the Commonwealth
certifies in the notice of appeal that the order will terminate or substantially
handicap the prosecution.”); see also Commonwealth v. Brister, 16 A.3d
530, 534 (Pa. Super. 2011) (“The Commonwealth’s good faith certification,
alone, provides an absolute right to appeal . . . .”). Thus, the instant appeal
is properly before us.
1
J-A08007-15
Michael Martz, reached fourteen years of age. For the reasons that follow,
we reverse and remand.
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, 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 court2 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
2
An individual who has reached the age of twenty-one is not a child
pursuant to the Juvenile Act, 42 Pa.C.S. §§ 6301 et seq., and is subject to
the jurisdiction of the criminal courts, despite being accused of committing
the offense before the age of eighteen. See, e.g., Commonwealth v.
Monaco, 869 A.2d 1026, 1028–1030 (Pa. Super. 2005) (relying on § 6302
of the Juvenile Act and concluding individual who was twenty-two years old
at time of his arrest was not a child and could not proceed in juvenile court).
2
J-A08007-15
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, 713 A.2d 81(Pa. 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”3 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
3
An infancy defense entails the common law presumption that children
between the ages of seven and fourteen years lack the capacity to commit
crimes. In the Interest of G.T., 597 A.2d 638, 639 (Pa. Super. 1991) (en
banc).
3
J-A08007-15
commit the crimes.4 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.
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
4
While Appellee did not file a written motion to dismiss based on the
infancy defense or give prior written notice of intent to present an infancy
defense, he did assert his infancy in several paragraphs of his omnibus
pretrial motion. Omnibus Pretrial Motion, 4/3/14, at ¶¶ 20, 27, 31–32.
4
J-A08007-15
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.Appellee filed a Motion for Appointment of Standby Counsel on
September 8, 2014, which the trial court granted on September 16, 2014.
The Commonwealth filed its notice of appeal on September 9, 2014,
certifying that dismissal of the charges substantially handicapped or
terminated its case pursuant to Pa.R.A.P. 311(d). Standby counsel withdrew
on September 26, 2014, due to a conflict of interest. Pursuant to the trial
court’s order of September 16, 2014, the Commonwealth filed a concise
statement of errors complained of on appeal on October 9, 2014. In an
order dated October 15, 2014, the trial court appointed new standby counsel
for Appellee.6 In an order filed on October 16, 2014, and in reliance upon
5
The trial court addressed Appellee’s and the victim’s ages in relation to the
alleged acts as follows:
The Amended Information alleges a continuing course of conduct
from 1996 to 2002, expanded from the original information.
This means that [Appellee] could have been as young as 10 (on
January 1, 1996) [or] as old as 17 (on December 31, 2002),
while the victim could have been as young as 5 and as old as 12
at the time of the alleged acts.
Opinion and Order, 8/11/14, at 5.
6
Appellee filed a pro se brief in this appeal.
5
J-A08007-15
Pa.R.A.P. 1925(a), the trial court incorporated its Opinion filed on August 11,
2014, “as the basis for the Order of August 11, 2014.” Order, 10/16/14.
The Commonwealth raises two issues for our review, as follows:
I. The Infancy Defense is a doctrine that can no longer be
recognized as a defense since the adoption of the Juvenile
Act of 1976, 42 Pa.C.S.A. §6301 et. seq. in that its
application would result in inequitable and disparate
treatment of offenders and victims in the juvenile justice
versus the adult criminal justice system for the same
offenses.
II. The Infancy Defense is in essence a claim of “diminished
capacity” or “lack of capacity” which requires the
Defendant to admit guilt, but then allows the Defendant to
assert the same as an affirmative defense which can only
be determined at Trial by the fact finder, and cannot be
used to exclude evidence or dismiss charges prior to Trial.
Commonwealth Brief at 4.
The Commonwealth’s issues involve questions of law. Therefore, our
standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Barger, 956 A.2d 458, 461 (Pa. Super. 2008) (citing
Commonwealth v. States, 938 A.2d 1016 (Pa. 2007)).
In its first issue, the Commonwealth argues that the infancy defense
has been superseded by the Juvenile Act. Specifically, the Commonwealth
states that the Juvenile Act re-defined a “delinquent child” as a child “ten
years of age or older whom the court has found to have committed a
delinquent act and is in need of treatment, supervision, or rehabilitation.”
Commonwealth Brief at 10 (citing 42 Pa.C.S. § 6302). The Commonwealth
then contends that “[o]bviously, the common law age limits were altered by
6
J-A08007-15
the adoption of this legislation which clearly establishes a presumption of
capacity for children over the age of ten (10) who have committed crimes.”
Commonwealth Brief at 10. The Commonwealth also argues that an
offender “who was under the age of fourteen (14) at the time he committed
a crime, but who was not arrested until he was an adult, would be effectively
immune from prosecution” as an adult, and that such a position “would
effectively vitiate the Legislature’s intentional expansion of victim’s rights
and the [expanded] Statute of Limitations in just this type of sexual assault
case.”7 Id. at 8. Although we appreciate the Commonwealth’s concerns, we
are constrained to disagree.
The purpose of the infancy defense is to “protect children from
retribution in recognition of their inability to differentiate right from wrong.”
In the Interest of G.T., 597 A.2d 638, 641–642 (Pa. Super. 1991) (en
banc). The common law defense of infancy has a long jurisprudential
history:
Down through the centuries the law has attempted to save
offending children from the rigidity of the criminal law applicable
to adults, but the history of the law has disclosed that such
attempts were only sporadic and in many instances
accomplished very little. As early as the fifth century B.C., the
Twelve Tables (c. 488–451) made the theft of crops at night a
capital crime, but a youthful offender could escape with a fine
double the value and a flogging. The Romans promulgated the
defense of infantia which provided absolute immunity for those
7
The statute of limitations for sexual assaults on minors has been extended
to “any time up to the later of the period of limitation provided by law after
the minor has reached 18 years of age or the date the minor reaches 50
years of age.” 42 Pa.C.S. § 5552(b.1), (c)(3).
7
J-A08007-15
children who were incapable of speech. Puberty was established
as the upper limit of eligibility for mitigated treatment. Between
infancy and puberty, criminal responsibility depended on a
combination of three factors—the proximity of age to either
infancy or puberty, the nature of the offense, and the mental
capacity of the offender.
“By the seventeenth century, the Roman classification of
criminal responsibility became the basis of the English common-
law approach, so that children under seven were incapable of
committing a crime while those between seven and fourteen
were presumed incapable. Such presumption however was
rebuttable by strong and clear evidence. Those fourteen and
over were subject to the same criminal laws as were adults.” D.
Frauenhofer, A. Hart, J. Keefe, P. May, E. Sheehy, & T. Wilson,
“Practice and Procedure of the Juvenile Court for the State of
Connecticut,” 41 Conn.B.J. 201, 206 (1967); see 1 W. LaFave &
A. Scott, Substantive Criminal Law § 4.11(a); see generally A.
Kean, “The History of the Criminal Liability of Children,” 53
L.Q.Rev. 364 (1937); A. Walkover, “The Infancy Defense in the
New Juvenile Court,” 31 UCLA L.Rev. 503 (1984).
In re Tyvonne, 558 A.2d 661, 663–664 (Conn. 1989). “As with most
American common law principles, the infancy defense was imported from
Great Britain during colonization and remained in effect after the United
States was formed.” Tara Schiraldi, For They Know not What They Do:
Reintroducing Infancy Protections for Child Sex Offenders in Light of In re
B.W., 52 AM.CRIM.L.REV. 679, 683 (Summer 2015).
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
8
J-A08007-15
child does possess the criminal capacity; a child over the age of
14 years is prima facie capable of the commission of a crime.
Commonwealth v. Green, 151 A.2d 241, 246 (Pa. 1959). Thus, “any
special immunity or presumption of incapacity ceases” when the child
reaches fourteen. Commonwealth v. Cavalier, 131 A. 229, 234 (Pa.
1925).8
Despite this longstanding adherence to the infancy defense in
Pennsylvania, this Court held in Interest of G.T. that the common law
defense of infancy was “irrelevant in determinations of delinquency in our
juvenile justice system.” Interest of G.T., 597 A.2d. at 643. We reasoned
that:
The purpose of determining delinquency under the Juvenile Act
is to identify those children who have committed an act which
would be a crime if it had been committed as an adult and who
are, therefore, in need of special treatment, supervision and
rehabilitation. Delinquency proceedings are not criminal in
nature but are intended to address the special problems of
children who have engaged in aberrant behavior disclosing a
need for special treatment. Therefore, the defense of infancy,
created to protect children from retribution in recognition of their
inability to differentiate right from wrong, is irrelevant to a
determination regarding a juvenile’s amenability to treatment,
rehabilitation and supervision. Indeed, the Act provides that, in
some instances where it is determined that rehabilitative goals
cannot be met, the court may rule that the offense should be
prosecuted, and transfer the matter to criminal proceedings.
See 42 Pa.C.S. § 6355 (a)(4)(iii)(A).
8
In fact, pursuant to the Juvenile Act, “delinquent act” does not include
murder and many other offenses if committed by a child fifteen years of age
or older. 42 Pa.C.S. § 6302. These charges may be directly filed in criminal
court.
9
J-A08007-15
Id. at 641–642. In so holding, however, we emphasized that “we are not of
the opinion that our decision today encroaches upon the common law
defense. The infancy defense arises in a criminal proceeding and, as we
have stated, a delinquency proceeding is not criminal in nature.” Id. at 642
(emphasis in original).
In applying the infancy defense, the trial court in the case sub judice
relied on the reasoning of Interest of G.T., as follows:
In G.T., the Superior Court held that, as to juvenile court
proceedings, the Juvenile Act, 42 Pa.C.S. §6301 et seq.,
abrogated the common law Infancy Defense because, in the
opinion of the Superior Court, the juvenile courts would be
unable to provide the treatment intended by the Juvenile Act for
children as young as 10 years of age if the Infancy Defense were
to continue to be applicable to “delinquency proceedings” under
the Juvenile Act, as differentiated from a “criminal proceeding.”
G.T., 597 A.2d at 642 (emphasis in original).
In the present case, the Juvenile Act does not apply, since
the Defendant is 29 years old and the jurisdiction of the Juvenile
Act ends when a juvenile delinquent reaches the age of 21
years. See: Definition of “child” at §6302 (under 21 years of
age) and application of that term at §6321 (“Commencement of
proceedings”) and §6303 (“Scope of chapter”); Commonwealth
v. Monaco, 2005 Pa. Super. 79, 869 A.2d 1026 (2005). Since it
is the Juvenile Act which abrogated the Infancy Defense, and
only in juvenile court delinquency proceedings, and since the
policy of the Juvenile Act as articulated in G.T., supra, to
facilitate the treatment of a “child” in juvenile court is not
applicable to the present case, which is a “criminal proceeding,”
the Infancy Defense applies and the Defendant is rebuttably
presumed to have lacked the capacity to appreciate the
criminality of his alleged actions through the age of 14 years.
Trial Court Opinion, 8/11/14, at 4.
10
J-A08007-15
Given our prior pronouncement in Interest of G.T., we cannot
conclude that the trial court erred in finding that the infancy defense remains
viable in criminal proceedings. In Interest of G.T., we held that the infancy
defense was abrogated by the Juvenile Act in juvenile proceedings because
otherwise, the juvenile court would be unable to provide treatment. That
holding does not undermine the underlying reason for the common law
defense, i.e., “to protect children from retribution in recognition of their
inability to differentiate right from wrong. . . .” Interest of G.T., 597 A.2d
at 641–642. Although, in this case, we are not protecting a “child” from
retribution in a criminal proceeding, we are determining criminal
responsibility. The ability to differentiate right from wrong is integral to that
determination.
Furthermore, repeal of our common laws by implication is disfavored.
To modify the common law, a statute must expressly declare its intent to do
so in its provisions. In re Rodriguez, 900 A.2d 341, 415 (Pa. 2003)
(quoting Rahn v. Hess, 106 A.2d 461, 464 (Pa. 1954) (“Statutes are never
presumed to make any innovation in the rules and principles of the common
law or prior existing law beyond what is expressly declared in their
provisions”); accord United States v. Texas, 507 U.S. 529, 534 (1993)
(“In order to abrogate a common-law principle, the statute must ‘speak
directly’ to the question addressed by the common law.”). Thus, we cannot
11
J-A08007-15
conclude that the Juvenile Act abrogated the viability of the common law
defense of infancy in criminal proceedings.
In summary, criminal proceedings are a determination of criminal
responsibility, while the purpose of a juvenile disposition hearing is to
determine treatment necessary for rehabilitation. In Interest of G.T., the
viability of the common law defense of infancy in criminal proceedings was
preserved by this Court. The Commonwealth has not directed us to any
subsequent developments in the statutory or common law that cause us to
abandon this position. Therefore, we hold that the common law defense of
infancy remains applicable in criminal proceedings where a defendant is
being prosecuted for conduct committed before the age of fourteen. To hold
otherwise would subject individuals to retribution for conduct at an age
where they were unable, or presumptively unable, to differentiate right from
wrong.
The Commonwealth’s second issue alternatively maintains that once
Appellee verbally asserted the infancy defense, the trial court erroneously
shifted the burden to the Commonwealth to prove that Appellee had
“capacity” at the time the crimes allegedly were committed. The
Commonwealth suggests that the infancy defense is an affirmative one to be
raised as a method to cast doubt on Appellee’s capacity at trial, rather than
as a rebuttable presumption raised pretrial. Commonwealth Brief at 15–17.
12
J-A08007-15
We disagree, but find that the Commonwealth was not provided with a full
and fair opportunity to rebut the presumption in this case.
At the July 9, 2014 hearing, Appellee introduced the infancy defense
as follows:
[By Appellee]: I think I will raise by other issue now. . . .
* * *
It’s called the infancy defense. It’s a common law defense
in Pennsylvania and actually the—if this case would have
been tried in juvenile court, it was abolished by the juvenile
act, but what it does is protects children between the ages of
seven and 14-years-old. And what it does is it considers
them to be incapable of committing a crime. It’s a common
law rule. It’s still active in Pennsylvania. It it’s not in the
context of the juvenile act which this case is—what we’re
doing here is we’re prosecuting a child in an adult court
situation.
* * *
I’m saying the infancy defense is not relevant dealing with
juvenile children being I don’t know if you want to say
prosecuted or adjudicated as delinquent in court in a juvenile
setting, but a child—for acts that were committed by a child
that are being tried in adult court, the infancy defense which,
by the way it’s presumed—the presumption is actually for
children that are between the ages of seven and 14-years-
old . . . .
N.T., 7/9/14, at 18–19. The trial court subsequently scheduled a
supplemental hearing for July 30, 2014. In an order dated July 15, 2014,
and filed July 18, 2014, the trial court stated that one of the purposes of the
hearing would be to consider Appellee’s “oral motion to dismiss based upon
the ‘infancy defense’” along with Appellee’s March 24, 2014 Motion for Bill of
13
J-A08007-15
Particulars and Other Appropriate Relief and “that portion of the Omnibus
Motion alleging prejudicial delay. . . .” Order, 7/18/14, at 1. The trial court
explained in that order that “all three motions require consideration of
common facts and legal issues that relate to each other. . . .” Id.The majority of the July 30, 2014 hearing was devoted to the issue of
prejudicial delay and involved the Commonwealth’s presentation of the
testimony of Danville Police Chief Eric D. Gill. N.T., 7/30/14, at 2–26.
Toward the end of the hearing, and after the Commonwealth had rested, the
trial court briefly addressed the issue of the infancy defense with Appellee.
Appellee stated the following:
What I want to say is I am not asking for dismissal based on the
infancy [defense]. My motion is for dismissal for lack of am [sic]
specific dates for me to prepare the defense of infancy at trial.
The infancy defense itself would not be—it would be something
that would be given to a Jury. It would be an additional burden
of proof.
N.T., 7/30/14, at 28. At that point, Appellee, still proceeding pro se,
presented the court and the Commonwealth with a brief on this issue. In
response to the trial court’s inquiry, the Commonwealth indicated its desire
to file a brief as well. Id. at 34–35. The Commonwealth also asked to be
able to present evidence and stated:
[U]pon researching the infancy defense and the issues that now
have been raised by that particular defense, if you will, that
[Appellee] is claiming, it seems appropriate that I be able to
bring in some of his past record which shows his interaction with
the legal system, his knowledge of right and wrong, which
certainly go[] to his question of capacity.
14
J-A08007-15
Id. at 37 (emphasis added). The trial court refused to hear testimony,
however, and responded as follows: “The hearing is closed on this infancy
defense issue. I am going to make a ruling on it.” Id.
The Commonwealth now contends:
The prosecution does not bear the burden of establishing
capacity; instead, [Appellee] would first have to admit that he
committed these sexual offenses against the victim. The Infancy
Defense would then be an attempted justification, excuse or
mitigation of [Appellee’s] criminal conduct. The Commonwealth
would then present rebuttal evidence to contradict [Appellee’s]
affirmative defense in that regard. The issue would be decided
by the jury at the time of trial.
Commonwealth Brief at 16 (emphasis in original).
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. Based on this reasoning and the lack of any
subsequent pronouncements from our Supreme Court or legislation in this
area, we are not persuaded by the Commonwealth’s references to the
15
J-A08007-15
defense of diminished capacity or mental infirmity. Thus, any presumption
under the infancy defense should be available to Appellee for his conduct up
until fourteen years of age. Id.; Cavalier, 131 A. 229.
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 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.
Order reversed. Case remanded for proceedings consistent with this
Opinion. Jurisdiction relinquished.
16
J-A08007-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2015
17