Com. v. Bethlehem

• Decision Date: 15 December 1989
• Citation: 570 A.2d 563,391 Pa.Super. 162
• Parties: COMMONWEALTH of Pennsylvania v. Richard BETHLEHEM, Appellant.
• Court: Pennsylvania Superior Court

Page 563

570 A.2d 563

391 Pa.Super. 162

COMMONWEALTH of Pennsylvania v. Richard BETHLEHEM, Appellant.

Superior Court of Pennsylvania.

Submitted May 8, 1989.

Filed Dec. 15, 1989.

David Crowley, Asst. Public Defender, Mercer, for appellant.

W. Jeffrey Yates, Asst. Dist. Atty., Bellefonte, for Com., appellee.

Before MONTEMURO, MELINSON and HESTER, JJ.

MELINSON, Judge.

Appellant, Richard Allen Bethlehem, appeals from judgment of sentence imposed following convictions of rape, statutory rape, and involuntary deviate sexual intercourse arising from his sexual abuse of his young niece. Bethlehem contends that this action was brought outside the applicable statute of limitations. Regrettably, appellant is correct and we are constrained to reverse the convictions and discharge appellant.

This appeal presents the following four questions relating to the application of various statute of limitations provisions to the facts of this case.

I. Whether the applicable two and five year statute of limitations periods for the offenses alleged (42 Pa.C.S.A. § 5552 (a & b)) were tolled pursuant to 42 Pa.C.S.A. § 5554(3).

II. Whether the complaint stated the time of the offenses with the "reasonable degree of specificity" required.

III. Whether the Commonwealth established beyond a reasonable doubt that the offenses occurred within the applicable limitations periods.

IV. Whether the trial court erred in failing to instruct the jury with regard to the factual determination that the offenses occurred within the limitations periods.

We shall discuss these interrelated questions, seriatim.

I. Tolling of the Statute of Limitations

Prior to trial, Bethlehem moved to have the complaint dismissed because it alleged offenses outside the applicable statute of limitations. The complaint against Bethlehem was filed June 3, 1987. Though the complaint initially alleged that Bethlehem continued to sexually abuse the victim during family visits to the victim's former residence after she and her parents moved from Bellefonte, the victim repeatedly testified at the preliminary hearing that the offenses occurred only while she lived in Bellefonte with her parents. The Commonwealth presented no evidence that the assaults continued after the move from Bellefonte. Bethlehem presented uncontradicted evidence that the victim and her family moved from Bellefonte on or before May 17, 1982, which would place the assaults outside the applicable limitations periods for the offenses charged. Bethlehem's motion to dismiss on statute of limitations grounds was denied at the preliminary hearing.

Bethlehem renewed the request for dismissal in pretrial motions, and an evidentiary hearing was conducted during which additional evidence was presented in support of Bethlehem's dismissal motion. Again, the Commonwealth made no attempt to challenge or cast doubt upon the claim that the victim had moved from Bellefonte prior to May 17, 1982, despite the fact that the complaint in this case was filed, on June 3, 1987, more than five years after May 17, 1982. Rather, the sole argument raised by the Commonwealth was that this Court's decision in Commonwealth v. Fanneli, held that time elements were not controlling in cases involving minors.

By way of response, counsel for Bethlehem disputed that the case cited stood for the broad proposition urged, and argued that the only way the running of the statute of limitations for crimes against minors would be tolled was when the father or a guardian was the perpetrator, which was not the case here. The Commonwealth made no reply, and in no way attempted to establish that the provisions of 42 Pa.C.S.A. § 5554(3) applied under the facts of this case. The trial court then denied the motion to dismiss the charges, without explanation. (See N.T. 10/15/87 at 2-16).

The failure to grant dismissal of the charges on statute of limitations grounds at the preliminary hearing or pretrial motions stage is inexplicable. The clear and uncontradicted evidence presented, from the victim herself and from wholly unbiased sources, demonstrated that the victim moved from Bellefonte where the offenses were alleged to have occurred more than five years prior to the filing of the complaint in this case. Thus, in the absence of proof that the statute of limitations had been tolled, the longest applicable limitations period had already expired by the time a complaint was filed in this case.

The Commonwealth neither pled nor proved at that juncture that any tolling provision applied. Instead, the Commonwealth relied solely upon its erroneous construction of this Court's unpublished opinion in Commonwealth v. Fanelli, which was later superceded and replaced by a published opinion of this Court sitting en banc. See Commonwealth v. Fanelli, 377 Pa.Super. 555, 547 A.2d 1201 (1988). Neither of this Court's opinions in that case purported to render statute of limitations provisions irrelevant or not controlling in cases involving offenses against minors. Rather, Fanelli addressed the separate and distinct issue of how specific the indication of the date of an offense set forth in the criminal complaint needed to be in order to comply with constitutional due process specificity requirements. We are compelled to find that Bethlehem's statute of limitations defense was valid and the charges should have been dismissed.

The trial court's acceptance of the Commonwealth's post-verdict assertions that 42 Pa.C.S.A. § 5554(3) applied to toll the limitations period was erroneous in two fundamental respects. We shall discuss each separately.

First, the law requires that any allegation that the running of a statute of limitations period was tolled by an applicable statutory exception must be made in the complaint itself, or at the latest, a reasonable time before trial. See Commonwealth v. Cruz, 355 Pa.Super. 176, 512 A.2d 1270 (1986); Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981). Review of the record reveals that there was no pre-trial notice, actual or constructive, of the Commonwealth's intent to claim the statute of limitations had been tolled under 42 Pa.C.S.A. § 5554(3). Indeed, the Commonwealth rested, at both the pre-trial and trial stages of this case, upon its erroneous assertion that limitations periods had been deemed not to be controlling in cases involving crimes against minors. The Commonwealth did not contest Bethlehem's counsel's assertion that the "parent or guardian" exception, i.e. 42 Pa.C.S.A. § 5554(3), did not apply. The Commonwealth's post-verdict claim that proof of the applicability of an exception was adduced at trial comes too late. See Commonwealth v. Cruz, supra, 512 A.2d at 1273 n. 2, citing Commonwealth v. Eackles, supra, 428 A.2d at 619. ¹

Second, and perhaps more important, the trial court's post-verdict basis for applying the exception is unsustainable on its merits. The offenses alleged in the instant case involved sexual assaults by the victim's uncle during periodic visits to the victim's parents' home, while the victim's parents were at home and in the next room. (See N.T. 10/16/87 at 18-25; see especially N.T. 10/16/87 at 24 ("my mom was doing dishes and my dad was out there listening to music")). Such facts do not permit application of the tolling provisions of 42 Pa.C.S.A. § 5554(3):

§ 5554. Tolling of statute

Except as provided by section 5553(e) (relating to disposition of proceedings within two years), the period of limitation does not run during any time when:

* * *

* * *

(3) a child is under 13 years of age, where the crime involved injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of the child's parents or by a person responsible for the child's welfare, or any individual residing in the same home as the child, or a paramour of the child's parent.

(Emphasis added).

The Commonwealth argues on appeal that because the victim was eight years old, and because she knew Bethlehem as a relative, the tolling provisions of 42 Pa.C.S.A. § 5554(3) apply. The Commonwealth argues further that Section 5554(3) was intended "to toll the statute of limitation for any crime committed against the person of a child under the age of 18." (Commonwealth Brief at 7, emphasis added). The trial court provided more specific grounds for the application of Section 5554(3) to this case. The trial court held that the victim's parents had placed their trust in Bethlehem making him responsible for her welfare, and in the alternative, that her parents were negligent themselves and thereby caused her injuries. (Trial Court Opinion at 4-5). Unfortunately, we cannot agree with the trial court that such circumstances provide a basis for applying Section 5554(3).

We do not believe that in the context of this statute the phrase, "person responsible for the child's welfare," was intended by the legislature to apply to an uncle visiting the victim's parents' home. Without precluding application of this portion of the tolling provision to such a relative under different circumstances, at least when, as here, the parents were at home and in the next room when the sexual assault occurred, it was the parents and not the visiting relative who remained the "person(s) responsible for the child's welfare" within the meaning of the provision in question. We construe the provision to apply to persons under whose permanent or temporary custody and control the parent(s) or legal guardian(s) have placed a child, in other words, those who stand in loco parentis to the child. See 1 Pa.C.S.A. § 1903(b). The Commonwealth made no showing of such responsibility being vested in Bethlehem at the time of the assaults. Hence, we must conclude that this portion of the tolling statute could not properly be applied to the circumstances of this case.

Likewise, we do not believe that a visiting relative may be deemed to fall within the intended meaning of the phrase, "any individual...