Commonwealth v. Niemetz

• Decision Date: 26 November 1980
• Parties: COMMONWEALTH of Pennsylvania v. Albert NIEMETZ, Appellant.
• Court: Pennsylvania Superior Court

422 A.2d 1369

282 Pa.Super. 431

COMMONWEALTH of Pennsylvania v. Albert NIEMETZ, Appellant.

Superior Court of Pennsylvania.

November 26, 1980

Argued Nov. 12, 1979. [Copyrighted Material Omitted]

Vincent R. Baginski, Pittsburgh, for appellant.

Kemal Mericli, Asst. Dist. Atty., Pittsburgh, for Commonwealth appellee.

Before PRICE CAVANAUGH and WATKINS, JJ.

PRICE, Judge:

Appellant Albert Niemetz, appeals from the judgment of sentence imposed after a jury convicted him of rape, ^[1] involuntary deviate sexual intercourse, ^[2] indecent assault, ^[3] and corruption of minors. ^[4] Post-trial motions for a new trial and in arrest of judgment were denied and appellant was sentenced to a term of imprisonment of from seven and one-half to fifteen years.

Appellant raises several contentions on appeal. Initially, appellant argues that the lower court erred by denying both his motion to quash the information and his demurrer. ^[5] Appellant further contends that he was denied due process of law as a result of various evidentiary rulings. First, appellant argues that the trial judge erroneously permitted the victim to testify concerning occurrences of rape and other similar activities specified in the information without identifying the dates of such occurrences. Second, appellant contends that it was error to admit evidence of any sexual conduct occurring beyond the pertinent period of limitation. Last, appellant asserts that he was denied due process by the trial court's refusal to permit cross-examination of the victim concerning whether he was or was not circumcised. Finding no merit in these contentions, we affirm the judgment of sentence.

Perceived in the light most favorable to the Commonwealth, see Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975); Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978), the following was adduced at trial. Bonnie Jean Wilmot, the victim herein, was appellant's stepdaughter. Only eighteen years of age at the time of trial, Ms. Wilmot nonetheless related a long and sordid narrative of her childhood. Her testimony revealed that she first met appellant when she was between five and six years old and in the first grade. As a nine year old third grade student she was forced to perform fellatio upon appellant and, as early as the fourth grade, was obliged to submit to sexual intercourse with him. Beatings and threats of violence forced Ms. Wilmot to submit to appellant's advances more frequently and by the time Ms. Wilmot was in the seventh grade, sexual contact with her stepfather became routine. She became pregnant and delivered a baby, Albert Bernard Niemetz, on April 5, 1976, when she was a sixteen year old ninth grader and had a second pregnancy terminated by an abortion on May 14, 1977. Sexually abused by appellant for the last time on or about June 10, 1977, Ms. Wilmot left her home and sought refuge in a rape crisis center on August 27, 1977. As a result of these incidents, appellant was tried and convicted of rape, involuntary deviate sexual intercourse, indecent assault and corruption of minors. ^[6] This appeal followed.

Initially, appellant contends that the lower court erred in denying both his pretrial application for a rule to quash and his application to quash the information. We disagree.

The information in the instant case provided, in pertinent part, that the alleged offenses occurred "on (or about) divers dates beginning in 1972 and continuing until August, 1977." Appellant thereafter requested a Bill of Particulars to obtain the specific dates, times and places of the pertinent offenses. The Commonwealth responded by explaining that it was unable to state with more specificity the dates of the offenses "except to say that the offenses occurred mostly on weekends." Appellant's bedroom in a former residence on Bogg's Avenue, the victim's sister's bedroom in a one time family residence on Carnahan Road and appellant's present home on Lucina Avenue in Pittsburgh were named as principal locations of the named offenses. Perceiving that the Commonwealth's response was inadequate, appellant filed a pretrial application for a rule to quash the information. This application was denied by the Honorable Robert E. Dauer. Appellant thereafter filed an Application to Quash attacking the validity of the information rather than the Commonwealth's response to his Bill of Particulars. This latter application was likewise denied in a well-reasoned opinion by the Honorable Zoran Popovich.

As regards appellant's contention that his Application for a Rule to Quash was improperly denied, we note that appellant did not question the validity of the information, ^[7] but rather challenged only the lack of specificity in the Commonwealth's response to his Bill of Particulars. An information, valid on its face, is not rendered demurrable or subject to a motion to quash by a defective response to a bill of particulars, see Commonwealth v. Hershman, 171 Pa.Super. 134, 139, 90 A.2d 314, 317 (1952), aff'd, 374 Pa. 311, 97 A.2d 777 (1953). Judge Dauer properly denied appellant's application, therefore, unless the information was defective, in which case, the second application, the application to quash, should have been granted.

To be valid, an information 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) (emphasis added). The information in the instant case averred the commission of offenses "on (or about) divers dates beginning in 1972 and continuing until August, 1977." This course was adopted because the Commonwealth was unable to "state the dates on which the offenses occurred with any more specificity." Since time is not of the essence in the crimes for which appellant was charged and convicted, see Commonwealth v. Yon, 235 Pa.Super. 232, 341 A.2d 169 (1975); Commonwealth v. Rouse, 207 Pa.Super. 418, 218 A.2d 100 (1966), the pertinent allegation contained in the information appears to fit precisely Rule 225's proviso that an allegation that an offense was committed "on or about any date within the period fixed by the statute of limitations shall be sufficient" when (1) time is not of the essence and (2) a precise date is unknown.

The decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion. See Commonwealth v. Hackney, 117 Pa.Super. 519, 522, 178 A. 417, 418 (1935); Commonwealth v. Schwartz, 56 Pa.D. & C.2d 147 (C.P.Phila.1972). A court, moreover, "should not sustain a motion to quash ... except in a clear case where it is convinced that harm has been done to the defendant by improper conduct that interfered with his substantial rights." Commonwealth v. O'Brien, 181 Pa.Super. 382, 397, 124 A.2d 666, 674 (1956), appeal dismissed, Commonwealth v. Laughlin, 389 Pa. 109, 132 A.2d 265 (1957), citing Commonwealth v. Brownmiller, 141 Pa.Super. 107, 116, 14 A.2d 907 (1940). In view of the rule in this Commonwealth that the Commonwealth need not prove the commission of a crime on the date previously alleged in the information, see Commonwealth v. Morrison, 180 Pa.Super. 121, 118 A.2d 258 (1955), it would be patently absurd to suggest that a more rigorous test of specificity must be used in ruling on a motion to quash. Moreover, we do not believe that it would serve the ends of justice to permit a person to rape and otherwise sexually abuse his child with impunity simply because the child has failed to record in a daily diary the unfortunate details of her childhood. Since the facts of the instant case preclude a definitive enumeration of events and because the record belies any assertion that the Commonwealth sought to abuse the flexibility of Rule 225, ^[8] we hold that it was not an abuse of discretion to deny the motions.

Appellant next contends that the trial court improperly permitted the victim to testify to incidents of rape without requiring her to specify the dates of such occurrences. Appellant's reliance on Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975) and Commonwealth v. Levy, 146 Pa.Super. 564, 23 A.2d 97 (1941), however, is misplaced. Rather than positing an automatic litmus test for determining the admissibility of evidence, those cases hold that a conviction cannot stand unless the Commonwealth establishes, to a reasonable degree of certainty, both the commission of an offense and the approximate date thereof. Thus, in Devlin, where the defendant was charged with a single incident of sodomy, the conviction was reversed because the Commonwealth alleged and proved only that the offense occurred at some point during a fourteen month period of time. In Levy, a conviction was reversed by this court because the Commonwealth alleged in its indictment that two incidents of sodomy occurred four days apart, the victim testified that the events occurred on two successive evenings but gave conflicting testimony as to their dates, and the victim's sister failed to corroborate any of the dates previously specified. Pivotal to both decisions was the fact that neither case involved a continuando, as does the instant case, and thus the offenses alleged were more susceptible to being dated within a "reasonable degree of certainty" than are those involved herein.

Our conclusion on this issue does not, moreover, mark a departure from precedent. Rather, this conclusion...