Com. v. Gerstner

• Decision Date: 24 March 1995
• Citation: 656 A.2d 108,540 Pa. 116
• Parties: , 98 Ed. Law Rep. 870 COMMONWEALTH of Pennsylvania, Appellee, v. Harold GERSTNER, Appellant.
• Court: Pennsylvania Supreme Court

Page 108

656 A.2d 108

540 Pa. 116, 98 Ed. Law Rep. 870

COMMONWEALTH of Pennsylvania, Appellee, v. Harold GERSTNER, Appellant.

Supreme Court of Pennsylvania.

Submitted June 27, 1994.

Decided March 24, 1995.

[540 Pa. 118] Foster A. Stewart, for appellant.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Scott A. Bradley, Asst. Dist. Atty., for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

This appeal requires us to interpret the scope of the phrase "person responsible for the child's welfare" within the context of 42 Pa.C.S. § 5554(3). ¹ If we agree with the Superior Court and conclude that appellant, Harold Gerstner, was a "person responsible for the child's welfare," then the statute of limitations is tolled and appellant will face trial on criminal charges. If we determine that appellant was not a "person responsible for the child's welfare," we must reinstate the trial court's order dismissing the criminal charges. We hold that appellant can in fact be described as a "person responsible for the child's welfare" within the context of 42 Pa.C.S. § 5554(3). The events at issue occurred on or about May 1, 1984, through December of 1987. During this period, appellant provided baby-sitting services for the two minor children (the victim and her sister) of a friend, whom he had met through their mutual participation in an Alcoholics Anonymous program. Appellant baby-sat for the children in his own home "sometimes once a week, sometimes less, sometimes more." When appellant cared for the children, neither their mother nor any other adult was present. Occasionally, the children would remain overnight with appellant; sometimes, the mother stayed at appellant's home with her children after appellant had watched them. However, on most of these occasions the children were alone with appellant. The children looked upon appellant as a friend of the family, and he was not paid for watching them.

On September 21, 1992, appellant was charged with one count of Indecent Assault ² and one count of Corruption of Minors. ³ The prosecution filed a Notification of Commonwealth's Intention to Proceed Pursuant to the Tolling of Statute of Limitations Provisions under 42 Pa.C.S. § 5554(3). In its Notification, the Commonwealth acknowledged that the criminal complaint, dated on June 4, 1992, was filed after the statute of limitations had run. However, the Commonwealth contended that because the victim was under the age of 18, ⁴ and appellant was the paramour of the victim's parent and/or the person responsible for the victim's welfare when he watched her, the tolling provisions of 42 Pa.C.S. § 5554 would apply.

Appellant filed an Omnibus Pretrial Motion which included a motion to dismiss on the grounds that each charge against him was barred by the applicable statute of limitations. Appellant asserted that because he was not the paramour of the victim's parent, and was not in any way responsible for the child's welfare, he was never in an association with the victim sufficient to satisfy the tolling provisions of the statute.

On January 26, 1992, the Court of Common Pleas of Allegheny County held a hearing on appellant's motions. At this point, the Commonwealth abandoned the argument that appellant was a paramour of the victim's parent, and pursued only the theory that while baby-sitting, appellant was a person responsible for the victim's welfare. On February 22, 1993, the trial court concluded that because appellant fulfilled none of the statutory criteria, the tolling provisions of Section 5554(3) did not apply and granted Appellant's Motion to Dismiss for Violation of Statute of Limitations. On appeal, the Superior Court reversed and remanded for trial, reasoning that because Appellant was in fact a person responsible for the child's welfare, Section 5554(3) tolled the statute of limitations. Commonwealth v. Gerstner, 428 Pa.Super. 337, 630 A.2d 1277 (1993) (Del Sole, J. dissenting). We granted allocatur to determine the proper application of Section 5554(3).

After the January hearing on appellant's status, the trial court made the following factual findings:

The charges arose when the victim was approximately seven or eight years old. The [Appellant] was at least 53 years old when this incident occurred in 1984. The [Appellant] is not a familial relative of the victim. The mother of the victim testified that there was no romantic relationship between her and the defendant. She met him in 1983 and they became very good friends. She occasionally used other baby-sitters but during the time they were friends he would baby-sit the children once or twice a week without pay at his home. The mother characterized him as a good friend but not a father figure to her children nor an authority figure authorized to discipline the children in her absence.

(N.T. at 3, Feb. 22, 1993).

From these facts, the trial court concluded:

Clearly in light of the mother's testimony, the [Appellant] is not a parent nor, in fact, any relative at all to this child victim. Moreover, the [Appellant] was not a paramour of the mother. She testified that he was simply a friend. She also testified that she and the child victim did not reside with the [Appellant], only that they stayed at his house very briefly. Finally, the [Appellant] was not someone responsible for the child's welfare. He was merely a babysitter. The applicable cases stress that the [Appellant] exercises control over the victim and has the advantage of an authority figure that somehow deters the child from reporting the abuse. However, from the testimony of the mother, there wasn't any kind of emotional pressure on the child not to report the incident in a timely fashion. Accordingly, the Commonwealth is barred from prosecution notwithstanding 42 PACS [sic] Section 5554(3).

(Id. at 4-5).

In reversing, the Superior Court first discussed Commonwealth v. Bethlehem, 391 Pa.Super. 162, 570 A.2d 563 (1989), alloc. denied, 525 Pa. 610, 577 A.2d 542 (1990) which involved "sexual assaults by the victim's uncle during periodic visits to the victim's parent's home, while the victim's parents were at home in the next room." Id., 391 Pa. Super. at 167, 570 A.2d at 565. The court found that the legislature did not intend the phrase "person responsible for the child's welfare" to apply "to an uncle visiting the victim's parents' home." Id. at 168, 570 A.2d at 566. Because the parents were present in the next room, the court reasoned that "it was the parents and not the visiting relative who remained the 'person(s) responsible for the child's welfare' " within the meaning of Section 5554(3). Id. The court construed the phrase "person responsible for the child's welfare" to apply "to persons under whose permanent or temporary custody and control the parent(s) or legal guardian(s) have placed a child...." Id.

The Superior Court then applied Bethlehem 's definition of "person responsible for the child's welfare" as "one who has 'permanent or temporary custody and control' of the child" to Appellant and concluded,

Under the record facts of this case, it is apparent that Gerstner, as babysitter, had temporary custody and control of the child at the time the alleged offenses took place. Hence it cannot be refuted that Gerstner was responsible for the child's welfare, and consequently, the statute of limitation period was tolled by § 5554(3).

Gerstner, 428 Pa.Super. at 342, 630 A.2d at 1280.

To support this conclusion, the Superior Court relied upon Commonwealth v. Powers, 395 Pa.Super. 231, 577 A.2d 194 (1990). There, a grandfather was convicted of offenses relating to the sexual abuse of his granddaughter while baby-sitting for her. On appeal to the Superior Court, the grandfather claimed that trial counsel was ineffective for failing to "pursue a pre-trial motion to quash on statute of limitations grounds." Id. at 234-235, 577 A.2d at 195. The Powers court concluded that the grandfather was not prejudiced by counsel's failure because, "as an adult babysitter for absent parents, appellant was acting as a 'person responsible for the child's welfare' within the meaning of the phrase in 42 Pa.C.S.A. § 5554(3)...." Id. (emphasis in original).

After analyzing both Bethlehem and Powers, the Superior Court stated,

The same logic is applicable in this case. Gerstner was the child's babysitter, in his home, on a regular basis. He had temporary custody and control of both children, being responsible for them for hours at a time. This included those occasions when the young girls stayed in his house overnight, under his care, while the mother was absent. This arrangement lasted approximately three years. The trial court minimized these facts. That the child's mother and Gerstner were not paramours has no bearing on the determination of whether he was responsible for the child's welfare while babysitting. We conclude that Gerstner was, at the time of the alleged criminal acts, responsible for the child's welfare. The trial court erred by finding otherwise.

Gerstner, 428 Pa.Super. at 343, 630 A.2d at 1280 (emphasis in original).

In Bethlehem, the Superior Court equated one responsible for a child's welfare with one who stands in loco parentis. Bethlehem, 391 Pa.Super. at 168, 570 A.2d at 566. In the case sub judice, the Superior Court treated this comparison as dicta. ⁵ Gerstner 428 Pa.Super. at 341, 630 A.2d at 1280. However, other than stating that in loco parentis is "used almost exclusively in matters of child custody," id., the court failed to distinguish the terms. This has resulted in some confusion. Therefore, before addressing the merits of this case, we shall attempt to dispel the confusion surrounding the terms in loco parentis and "person responsible for the child's welfare."

As the Superior Court stated:

The term in loco parentis is not part of 42 Pa.C.S. § 5554; in fact, it is a specific,...