Commonwealth v. Boyer
Decision Date | 19 March 1970 |
Citation | 264 A.2d 173,216 Pa.Super. 286 |
Parties | COMMONWEALTH of Pennsylvania v. Donald M. BOYER, Jr., Appellant. |
Court | Pennsylvania Superior Court |
Theodore S. Danforth, Lancaster, for appellant.
Henry J. Rutherford, Asst. Dist. Atty., Lancaster, for appellee.
Before WRIGHT, P.J., and WATKINS, MONTGOMERY JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
A criminal complaint was lodged against Donald M. Boyer charging him and others with the crimes of burglary and larceny at the Leola Bowling Lanes in Leola, Pennsylvania. The criminal complaint stated:
The Indictment which followed also charged the crimes to have been committed 'on or about December 28, 1967'.
Boyer filed a formal notice of alibi, stating:
'1. The above named defendant intends to claim an alibi defense for each of the dates involved in the counts listed above.
2. For the night of Thursday, December 28, 1967, he will show by his mother, Mrs. Donald Boyer, Gordonville, R.D. #1 Pennsylvania, that he was at the home of his parents at Gordonville, R.D. #1, Pennsylvania.'
The case then proceeded to trial on the above Indictment and two other Indictments charging defendant with burglaries and larcenies on January 7, 1968 to which crimes defendant also interposed the defense of alibi.
As to the burglary and larceny alleged to have occurred on December 28 1967, State policeman Robert Haycock testified he arrived at the Leola Bowling Lanes at 9 A.M. on the morning of December 28, a Thursday, and found the place burglarized. He could not testify as to when this burglary and larceny occurred.
However written statements and the testimony of codefendants in the case, who pleaded guilty and who testified in defendant's behalf, revealed the crimes to have occurred on the night of December 27, 1967. Consequently, this testimony together with that of Trooper Haycock, made defendant's alibi for the night of December 28 completely ineffectual.
The Commonwealth did not explain why it had alleged, in the Criminal Complaint and in the Indictment, that December 28 was the date of the crime, when it knew, from information received in the case, that the actual date was December 27. It did not contend it had erred. It made no attempt to prove the crimes were committed on December 28, nor did it move to amend the indictment to allege December 27 as the date of the crime. The Commonwealth merely chose to ignore the variance.
Defense counsel made a motion to quash the indictment by reason of the variance between the allegata and probata which the court below refused. The jury returned a verdict of guilty on all three indictments. Defendant then moved for a new trial, which motion was refused and this appeal followed.
The refusal of the motion to quash the Indictment has presented a question not as yet directly passed upon by our Pennsylvania courts: In view of the alibi defense, was the variance between the date alleged in the Indictment and the date proved at trial a fatal defect? A survey of the existing law compels an affirmative answer.
The general rule is as stated in Commonwealth v. Levy, 146 Pa.Super. 564, at page 571, 23 A.2d 97, at page 100, (1941):
'The Commonwealth is not bound by the date laid in the bill of indictment but can show any date within the statutory period and prior to the finding of the indictment, Except in cases where time is of the essence of the offense: Com. v. Powell, 23 Pa.Super. 370; Commonwealth v. Major, 198 Pa. 290, 47 A. 741.' (Emphasis supplied)
In this case, the Complaint filed against defendant expressly makes time of the essence in that 'Thursday' was inserted as the day of the crime in the complaint form which contained the words 'insert only if day of week is essential element of offense'. Though the dictum in the Levy Case, supra, would indicate that dates approximating those set forth in the Indictment may be proved and be sufficient to convict an accused, it must be noted that the alibi defense in that case did not refer to the dates set forth in the Indictment but to other dates appearing in the evidence so that the issue here presented was not involved.
In the present case, December 28 was the date alleged in the Indictment, and in reliance on that date, the defendant filed his formal notice of alibi 'for the night of December 28'. To charge him with knowledge that the Commonwealth meant the night of December 27 would be to charge him with a guilty knowledge, contrary to the presumption of innocence with which the law clothes him.
In Commonwealth v. Spanos, 153 Pa.Super. 547, 34 A.2d 902 (1943), this court affirmed the allowance of an amendment of the indictment to correct an obvious clerical error in the date alleged, this court noting, however:
(Emphasis supplied).
In Commonwealth v. Rouse, 207 Pa.Super. 418, 218 A.2d 100 (1966), we noted that no alibi was offered for either the date charged in the Indictment or for any other date and therefore held there was no merit to defendant's argument that he was deprived of the ability to assert an alibi defense 'in violation of the Fifth and Fourteenth Amendments to the Federal Constitution' by the failure of the Commonwealth to prove that the offenses charged happened on the date set forth in the Indictment.
The above reasoning in the Spanos and Rouse cases clearly indicates this court's point of view to be that the existence of an alibi defense does make the time alleged material to defendant's case. This view has been adopted by courts of other jurisdictions which have had occasion to pass upon the issue.
In State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961), the State had knowledge that the crime charged occurred on the last day of March or the early part of April, and yet the Indictment charged the misconduct to have occurred on March 19, 1961. The defense was alibi. The lower court held that the time of the commission of the offense was not of the essence, and the appellate court (Supreme Court of North Carolina) reversed, saying:
* * *'(Emphasis supplied.)
The above rule was quoted and affirmed in State v. Wilson, 264 N.C. 373, 141 S.E.2d 801 (1965), the court holding, however, that the variance in that case was not material to defendant's alibi defense as the alibi included the date placed in evidence as well as the other date charged in the Indictment.
In State v. Campbell, 324 Mo. 249, 22 S.W.2d 645 (1929), the Missouri Supreme Court held that where the defense was alibi it was prejudicial error for the trial court to instruct the jury it could convict if it found the offense to have been committed at any time within the three-year statute of limitations.
It has been uniformly held in other jurisdictions that where the state has...
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