Com. v. McClucas

• Decision Date: 14 October 1986
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Elmer C. McCLUCAS, Sr., Appellant.
• Court: Pennsylvania Superior Court

Page 68

516 A.2d 68

357 Pa.Super. 449

COMMONWEALTH of Pennsylvania, Appellee, v. Elmer C. McCLUCAS, Sr., Appellant.

Superior Court of Pennsylvania.

Submitted June 23, 1986.

Filed Oct. 14, 1986.

Joshua D. Lock, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy Dist. Atty., Harrisburg, for Com., appellee.

Before OLSZEWSKI, CERCONE and HESTER, JJ.

OLSZEWSKI, Judge:

This matter comes before this Court on appeal from a judgment of sentence. Appellant, Elmer C. McClucas, Sr., was convicted of rape (3 counts), statutory rape (3 counts), incest, simple assault (2 counts), corruption of minors, and endangering the welfare of children. ¹ These offenses were allegedly committed against appellant's minor child on or about March 1979 through April 1984. Various pre-trial motions challenging, inter alia, the factual allegations contained in the informations and the rise of certain offenses which occurred outside the statute of limitations period were filed and denied. In addition, the court denied a defense request to exclude all testimony relating to any offenses which occurred outside the statutory period. Following his conviction, appellant was sentenced to a cumulative term of five-to-ten years imprisonment. Appellant now contends that: (1) trial counsel was ineffective in failing to seek a dismissal of certain counts of the information charging incidents of rape, statutory rape, and corruption of minors which occurred outside of the period allowed for prosecutions; (2) trial counsel was ineffective in failing to seek an arrest of judgment where the remaining charges were supported by insufficient evidence; (3) the informations should have been dismissed inasmuch as they violated Pa.R.Crim.P. 225(b) by alleging criminal violations outside the period of the statute of limitations; (4) the informations charging appellant with rape, statutory rape, and incest were insufficient and thus denied him the opportunity to defend himself; and (5) testimony regarding criminal acts committed by appellant outside of the statute of limitations period was improperly admitted into evidence. We will address these arguments seriatim.

After a careful review of the record, we note appellant's trial counsel attempted, although unsuccessfully, via pre-trial motions ² to challenge the informations on the basis that certain offenses contained therein were time-barred. In addition, trial counsel filed a supplemental omnibus pre-trial motion ³ that included a motion to dismiss the information due to a lack of specificity and the expiration of the statute of limitations and argued these motions prior to trial. Premised on the concerted efforts of appellant's trial counsel, we cannot say that appellant was denied the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We similarly find with respect to appellant's second argument asserting similar deprivations, that appellant's trial counsel did raise the insufficiency of the evidence argument in a motion for a new trial and in arrest of judgment. Consequently, appellant's claim of ineffective assistance of counsel must fail.

Nor are we persuaded by appellant's third argument that the informations filed against appellant should have been dismissed inasmuch as they violated Pa.R.Crim.P. 225(b) by containing offenses which occurred beyond the statute of limitations. It is well established that a reviewing court will only reverse a decision granting or denying a motion to quash when the lower court clearly has abused its discretion. Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984); Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980). See also Commonwealth v. Hackney, 117 Pa.Super. 519, 178 A. 417 (1935).

The Pennsylvania Rules of Criminal Procedure, in pertinent part, provide that in order for an information to be valid, it must contain, inter alia:

The date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient Pa.R.Crim.P. 225(b)(3).

A review of the informations filed in the instant case indicate that the offenses occurred on or about March 1979 through April 1984. We are aware that a five year period of limitations governs the acts of rape, statutory rape, and incest, 42 Pa.C.S.A. Sec. 5552(b), and that a two year period of limitations covers the remaining offenses not described in the latter section, 42 Pa.C.S.A. Sec. 5552(a). Thus, under a strict application of this rule, appellant's argument seems to have merit. Nevertheless, we are inclined to find an exception.

Commencing at the tender age of ten and one-half years, the victim was repeatedly sexually abused by her father and forced to have sexual intercourse with him from June 1979 until June 1980 on a weekly basis. In addition to the sexual assaults, evidence further revealed that appellant intimidated the child and instructed her not to disclose these events to anyone. As a result the victim testified that she was afraid to tell anyone about the incidents until approximately June of 1980 when she revealed these facts to her mother. Following a brief separation, the abuse again continued in November of 1982. Although the informations were not filed until May 1985, we do note that the complaint and summons were issued on February 25, 1985, less than five years after the incidents were first reported. Since the latter period is determinative of the timeliness of the information, we must conclude that the lower court did not abuse its discretion in failing to dismiss the information. See Commonwealth v. Kimble, 323 Pa.Super. 499, 470 A.2d 1369 (1984) (Commonwealth commenced defendant's prosecution in a timely fashion where complaint and summons were issued within the limitations period although the indictment was not issued until after the expiration of the limitations period.)

Nor do we find merit in appellant's next contention that the informations charging him with rape, statutory rape, and incest were not sufficiently specific to apprise him of the notice of the charges against him. In particular, appellant argues that the "lack of chronological specificity" prevented appellant from adequately defending himself. We disagree.

In Commonwealth v. Niemetz, wherein the appellant was convicted of similar offenses (i.e., rape, involuntary...