Com. v. Moore, L.

J-A27034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEE ANDREW MOORE, :
:
Appellant : No. 2009 WDA 2013
Appeal from the Judgment of Sentence entered on November 15, 2013
in the Court of Common Pleas of Mercer County,
Criminal Division, No. CP-43-CR-0000378-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 08, 2014
Lee Andrew Moore (“Moore”) appeals from the judgment of sentence
imposed following his convictions of involuntary deviate sexual intercourse,
unlawful contact with a minor, statutory sexual assault, corruption of the
morals of a minor, and indecent assault. See 18 Pa.C.S.A. §§ 3123(a)(7),
6318(a)(1), 3122.1, 6301(a)(1)(i), 3126(a)(8). We affirm.
The trial court set forth the relevant underlying facts as follows:
[Moore] was arrested on March 8, 2012[,] and charged with [the
above-mentioned crimes.] These charges arose from [Moore’s]
alleged on-going sexual abuse of his former step-son, R.M.,
between the years of 2004 and 2008.
A preliminary hearing was held before Magisterial District Judge
Lorinda Hinch on March 19, 2012. [Moore] was ordered held for
trial on all counts at the conclusion of that hearing.
[Moore] waived arraignment on July 19, 2012.
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A jury trial commenced on March 18, 2013. A mistrial was
declared during voir dire.
A second jury trial commenced on July 18, 2013. On July 19,
2013, R.M. testified at trial that his date of birth is July 3, 1989;
that the abuse started in mid to late Fall of 2004 …; and that it
ended when he graduated from high school in June of 2007. At
the conclusion of the trial, the jury returned guilty verdicts on all
counts.
***
[Moore] was sentenced to a term of imprisonment of not less
than 5 years nor more than 15 years on the charge of
[i]nvoluntary [d]eviate [s]exual [i]ntercourse; a consecutive
term of imprisonment of not less than 4 years nor more than 10
years on the charge of [u]nlawful [c]ontact with a [m]inor, and
concurrent terms of imprisonment on the remaining charges.
This appeal followed.
Trial Court Opinion, 1/23/14, at 1-2.
On appeal, Moore raises the following questions for our review:
1. Whether [Moore] was improperly convicted of [u]nlawful
[c]ontact [w]ith a [m]inor … and sentenced to 4 to 10 years’
incarceration[,] as the alleged victim ceased being a minor on
July 3, 2007[,] and the Commonwealth did not file the
criminal charge until March 6, 2012[,] which is beyond the
2[-]year statute of limitations pursuant to 42 Pa.C.S.A.
§ 5552(a)[,] thus denying the [trial] court of subject matter
jurisdiction[?]
2. Whether [Moore] was improperly convicted of [i]ndecent
[a]ssault … as the Commonwealth set forth in the Criminal
Information the language of the statute that did not become
effective until January 23, 2006[,] which was after the latest
date of the criminal conduct when the alleged victim turned
16 on July 3, 2005[,] thus denying the [trial] court of subject
matter jurisdiction[?]
3. Whether [Moore] was improperly convicted of [c]orruption of
[m]inors … as the Commonwealth set forth in the Criminal
Information a specific section of the Pennsylvania Crimes
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Code that did not become effective until December 6, 2010[,]
which was after the latest date of the criminal conduct when
the alleged victim turned 18 on July 3, 2007[?]
4. Whether the combined errors by the Commonwealth in
incorrectly setting forth 3 of the 5 crimes [Moore] was
specifically charged with [in] the Criminal Information
deprived [Moore] of Due Process of Law so as to infringe upon
his Constitutional Rights to a Fair Trial under the Constitutions
of the United States and the Commonwealth of
Pennsylvania[?]
Brief for Appellant at 5.
In his first claim, Moore contends that his conviction of unlawful
contact with a minor is barred by the statute of limitations. Id. at 10, 16.
Moore argues that the charged crimes occurred between 2004 and 2007,
when the victim turned 18-years-old. Id. at 10. Moore asserts that the
statute of limitations for the crime of unlawful contact with a minor is two
years under 42 Pa.C.S.A. § 5552(a)1 and thus, the latest the Commonwealth
could have charged him was July 2009. Brief for Appellant at 11. Moore
points out that the Commonwealth did not institute the instant criminal case
until March 6, 2012. Id.
1
Section 5552(a) states that “[e]xcept as otherwise provided in this
subchapter, a prosecution for an offense must be commenced within two
years after it is committed.” 42 Pa.C.S.A. § 5552(a). Relevantly, the crime
of unlawful contact with a minor is not stated under section 5552(b.1)
(listing major sexual offenses), or section 5552(c)(3) (stating that if the
period prescribed in subsection (a) or (b.1) has expired, a prosecution may
nevertheless be commenced for a “sexual offense committed against a minor
who is less than 18 years of age 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.”). Thus, the statute of limitations
for a crime of unlawful contact with a minor is two years from the date the
acts were committed. See Trial Court Opinion, 1/23/14, at 3.
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Moore claims that the trial court does not dispute that the conviction of
unlawful contact with a minor was barred by the statute of limitations, but
instead finds that he waived the issue by his failure to properly raise it in the
trial court. Id. at 11-13. Moore argues that he did not waive this issue
because the Criminal Information did not include the victim’s name, age, or
the dates of the alleged improper contact, and therefore, he was unaware of
the expiration of the statute of limitations. Id. at 10, 13. Moore further
contends that Pennsylvania Rule of Criminal Procedure 578, Omnibus Pretrial
Motion for Relief, does not specify that the affirmative defense of statute of
limitations must be raised in a pretrial motion. Brief for Appellant at 13-14.
Moore additionally claims that based upon the expiration of the statute of
limitations, the trial court did not have jurisdiction to impose a sentence.
Id. at 14-16.
Initially, we observe that an assertion that the statute of limitations
has expired in a criminal case is waivable. See Commonwealth v.
Rossetti, 863 A.2d 1185, 1190 (Pa. Super. 2004).
In Commonwealth v. Darush, 501 Pa. 15, 20 n.4, 459 A.2d
727, 730 n.4 (1983), the Pennsylvania Supreme Court held that
a statute of limitations claim is waived if not raised in a pretrial
omnibus motion seeking dismissal of the charges. Id. In two
decisions following Darush, this Court found statute of
limitations claims to be waived when not raised at the first
available opportunity and when raised after the imposition of
sentence. Commonwealth v. Groff, 378 Pa. Super. 353, 548
A.2d 1237, 1244-45 (1988); Commonwealth v. Stover, 372
Pa. Super. 35, 538 A.2d 1336, 1339 (1988). In Stover, we
stated that a defendant had from the expiration date of the
statute of limitations until the date of sentencing to raise the
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issue of statute of limitations[,] and that the failure to raise it in
a timely fashion constituted a waiver of the claim. Stover, 538
A.2d at 1339. … See also[] Commonwealth v. Morrow, 452
Pa. Super. 403, 682 A.2d 347, 349 (1996) (proper procedure for
raising a statute of limitations claim is in an omnibus pretrial
motion); Commonwealth v. Vidmosko, 393 Pa. Super. 236,
574 A.2d 96, 97-98 (1990) (statute of limitations claim waived
when not raised prior to trial); Commonwealth v. Riley, 330
Pa. Super. 201, 479 A.2d 509, 515 (1984) (statute of limitations
claim is waived when not raised pre-trial).
Rossetti, 863 A.2d at 1190. Thus, a defendant waives his statute of
limitations defense if he fails to raise it before the date of his sentencing.
See id.; Stover, 538 A.2d at 1338 (stating that the defendant “failed to
raise the defense of the statute of limitations at any time in the trial court.
Thus, we find the defense of the statute of limitations to have been waived .
. . .”).
Here, Moore did not raise a statute of limitations defense in either his
pretrial Motion or at any time before sentencing. Moreover, in light of the
numerous cases stating that a statute of limitations defense must be raised
in a pretrial motion, Moore’s claim regarding Criminal Rule 578 does not
entitle him to relief. See Groff, 548 A.2d at 1244 (concluding that pursuant
to Pa.R.Crim.P. 306 (now Rule 578), the defendant waived a challenge to
the statute of limitations because he failed to raise the issue in a pretrial
motion); see also Pa.R.Crim.P. 578, cmt. (providing the types of relief that
are appropriate for omnibus pretrial motions under Rule 578and stating that
“rule is not intended to limit other types of motions, oral or written, made
pretrial or during trial …. The earliest feasible submissions and rulings on
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such motions are encouraged.”); Darush, 459 A.2d at 730 n.4; Rossetti,
863 A.2d at 1190. Furthermore, Moore should have been aware of the
statute of limitations defense. Moore acknowledges that the Criminal
Information states that the alleged unlawful contact occurred between 2004
and 2008, and that he was not charged until 2012. See Brief for Appellant
11, 13 (wherein Moore admits that the Criminal Information stated that the
alleged unlawful contact occurred between 2004 and 2008, and he was not
charged until 2012). Finally, the expiration of the statute of limitations did
not remove the trial court’s subject matter jurisdiction. See
Commonwealth v. Lenart, 242 A.2d 259, 262 (Pa. 1968) (stating that
“the statute of limitations is not per se a bar to prosecution; it is an
affirmative defense which must be pleaded. Thus, if not pleaded, the
prosecution machinery will grind.”); see generally Bellotti v. Spaeder,
249 A.2d 343, 344 (Pa. 1969) (stating that “defense of the statute of
limitations does not divest the court of power to hear the action and may be
waived by consent or conduct of the parties. It is merely a procedural bar to
recovery.”). Based upon the foregoing, Moore waived his statute of
limitations defense.2
2
Here, the Commonwealth and the trial court do not dispute that the statute
of limitations expired with regard to the unlawful contact with a minor
charge. Thus, to gain relief, Moore should file a Post Conviction Relief Act
petition, asserting ineffective assistance of counsel for failing to raise the
statute of limitations defense in a timely manner. See Commonwealth v.
Grant, 813 A.2d 726, 737-38 (Pa. 2002) (stating that ineffective assistance
of counsel claims should be raised on collateral review).
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In his second and third claims,3 Moore raises issues with regard to the
adequacy of the Criminal Information concerning the corruption of a minor
and indecent assault charges. Brief for Appellant at 17-20. Moore
specifically argues that he was improperly convicted of indecent assault
because the Commonwealth relied upon statutory language that did not
become effective until January 23, 2006, when the latest date of the alleged
criminal conduct was July 3, 2005. Id. at 17, 18-19. Moore similarly argues
that his corruption of a minor conviction was improper because the
Commonwealth relied upon statutory language that did not become effective
until December 6, 2010, when the latest date of the alleged criminal conduct
was July 3, 2007. Id. at 17, 19-20. Moore claims that because the offenses
were incorrectly charged, he should not have been tried or convicted of the
crimes. Id. at 18, 20.
Bills of information are governed by the Pennsylvania Rules of Criminal
Procedure, which require that they include a plain and concise statement of
the essential elements of the offense substantially the same as or cognate to
the offense alleged in the complaint[.]” Pa.R.Crim.P. 560(B)(5); see also
Commonwealth v. Badman, 580 A.2d 1367, 1371 (Pa. Super. 1990)
(stating that “[t]he information should be read in a common sense manner,
rather than being construed in an overly technical sense.”). Additionally,
Pa.R.Crim.P. 560(C) provides that “[t]he information shall contain the official
3
Moore has addressed his second and third claims together.
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or customary citation of the statute and section thereof, or other provision of
law that the defendant is alleged therein to have violated; but the omission
of or error in such citation shall not affect the validity or sufficiency of the
information.” Pa.R.Crim.P. 560(C). “The purpose of the information is to
advise the accused of the allegations and the crimes charged, to give
sufficient notice to allow the opportunity to prepare a defense, and to define
the issues for trial.” Commonwealth v. Kisner, 736 A.2d 672, 674 (Pa.
Super. 1999).
Initially, we note that Moore did not raise this claim before the trial
court. See Pa.R.Crim.P. 578, cmt. (stating that types of relief appropriate
for omnibus pretrial motions include “to quash or dismiss an
information[.]”); Commonwealth v. Parmer, 672 A.2d 314, 316 (Pa.
Super. 1996) (stating that “[a] claim that the information or indictment
charges the defendant with the wrong crime must be made by written pre-
trial motion to quash.”). As Moore had ample opportunity to raise such a
claim, we deem his challenge to the Criminal Information waived for
purposes of appellate review. See Parmer, 672 A.2d at 316.
Nevertheless, even if Moore had properly preserved his claim, he
would not be entitled to relief. The charge of indecent assault is set forth in
Count 5 of the Criminal Information as follows:
The District Attorney of Mercer County, Pennsylvania, by this
Information presents that on (or about) 2004-July 2005
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[Moore] did have indecent contact with a complainant and/or
caused the complainant to have indecent contact with [Moore]
and/or did intentionally cause the complainant to come into
contact with seminal fluid, urine, or feces for the purpose of
arousing sexual desire in [Moore] or the complainant and the
complainant was less than 16 years of age and [Moore] was four
or more years older than the complainant and the complainant
and [Moore] were not married to each other, in that [Moore],
four or more years older than the victim, did engage in deviate
sexual intercourse per os and/or anus, on several occasions,
with a male victim while he was fourteen (14) and/or fifteen (15)
years of age, said incidents occurring at 250 East Butler Street in
the Borough of Mercer, Mercer County, Pennsylvania,
in violation of 18 Pa.C.S.A. [§] 3126(a)(8)[.4]
Criminal Information, 7/23/12, at 3 (unnumbered, footnote added).
4
Here, until January 23, 2006, the Crimes Code defined indecent assault as
[a] person who has indecent contact with the complainant or
causes the complainant to have indecent contact with the person
is guilty of indecent assault if … the complainant is less than 16
years of age and the person is four or more years older than the
complainant and the complainant and the person are not married
to each other.
18 Pa.C.S.A. § 3126(a)(8) (effective until January 23, 2006). The amended
and current language of section 3126(a)(8) states that a person commits
indecent assault if
the person has indecent contact with the complainant, causes
the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and … the complainant is
less than 16 years of age and the person is four or more years
older than the complainant and the complainant and the person
are not married to each other.
18 Pa.C.S.A. § 3126(a)(8).
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The charge of corruption of minors is set forth in Count 4 of the
Criminal Information as follows:
The District Attorney of Mercer County, Pennsylvania, by this
Information presents that on (or about) 2004-2008
[Moore], being of the age of 18 years and upwards by any act
corrupted or tended to corrupt the morals of a minor less than
18 years of age, or did aid, abet, entice or encourage any such
minor in the commission of a crime, in that [Moore], on several
occasions, did supply a minor male with pornographic material
and/or videos while [Moore] did perform oral sex and/or
masturbation on the minor while the minor was fourteen (14)
and/or fifteen (15) and/or sixteen (16) and/or seventeen (17)
years of age, said incidents occurring at 250 East Butler Street in
the Borough of Mercer, Mercer County, Pennsylvania,
in violation of 18 Pa.C.S.A. [§] 6301(a)(1)(i)[.5]
Criminal Information, 7/23/12, at 2 (unnumbered, footnote added).
5
With regard to corruption of minors, the Crimes Code, until December 6,
2010, defined corruption of minors, in relevant part, as follows:
Whoever, being of the age of 18 years and upwards, by any act
corrupts or tends to corrupt the morals of any minor less than 18
years of age, or who aids, abets, entices or encourages any such
minor in the commission of any crime, or who knowingly assists
or encourages such minor in violating his or her parole or any
order of court, commits a misdemeanor of the first degree.
18 Pa.C.S.A. § 6301(a)(1) (effective until December 6, 2010). The amended
and current language of section 6301(a)(1)(i) states that a person commits
corruption of minors if
being of the age of 18 years and upwards, by any act corrupts or
tends to corrupt the morals of any minor less than 18 years of
age, or who aids, abets, entices or encourages any such minor in
the commission of any crime, or who knowingly assists or
encourages such minor in violating his or her parole or any order
of court, commits a misdemeanor of the first degree.
18 Pa.C.S.A. § 6301(a)(1)(i).
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Although the Criminal Information cites to the amended and current
language in the Crimes Code, it nonetheless contained all necessary
elements of the crimes of indecent assault and corruption of minors. When
read in a common sense manner, the Commonwealth’s Criminal Information
specifically put Moore on notice that he committed the crimes in question by
performing various acts on a male victim between the ages of 14 and 17.
See Commonwealth v. Lohr, 468 A.2d 1375, 1377 (Pa. 1983) (stating
that “[i]f there exists a variance between the allegations of an information
and proof at trial, such variance is harmless error unless a defendant could
be misled at trial, prejudicially surprised in efforts to prepare a defense,
precluded from anticipating the prosecution’s proof, or otherwise impaired
with respect to a substantial right.”); see also Commonwealth v. Sims,
919 A.2d 931, 939 (Pa. 2007) (stating that “[t]o comport with due process,
the notice provided must be sufficiently specific so as to allow the defendant
to prepare any available defenses should he exercise his right to a trial.”).
Accordingly, even if he properly preserved his claim regarding the adequacy
of the Criminal Information, it would be without merit. See
Commonwealth v. Jones, 929 A.2d 205, 211-12 (Pa. 2007) (holding that
there was no merit to challenge to bills of information where bills provided
formal and specific notice of accusations and charges); see also In re R.M.,
790 A.2d 300, 306 (Pa. 2002) (stating that “the disparity between the
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charging document and the proof at trial was not material, or because the
disparity, though material, did not prejudice the defendant.”).
In his final claim, Moore restates his above claims and seeks a new
trial with a Criminal Information that accurately reflects the accusations
made against him. Brief for Appellant at 21-22. As we have already
concluded that his claims do not entitle him to relief on direct appeal, we will
not further address the claims.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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