Commonwealth v. Yon

• Decision Date: 24 June 1975
• Citation: 341 A.2d 169,235 Pa.Super. 232
• Parties: COMMONWEALTH of Pennsylvania. v. Dale William YON, Appellant.
• Court: Pennsylvania Superior Court

341 A.2d 169

235 Pa.Super. 232

COMMONWEALTH of Pennsylvania. v. Dale William YON, Appellant.

Superior Court of Pennsylvania.

June 24, 1975.

James H. English, Altoona, for appellant.

Amos Davis, Dist. Atty., Hollidaysburg, for appellee.

Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

PRICE, Judge.

Following a jury trial on August 1, 1974, appellant was found guilty of statutory rape, ^[1] sodomy, ^[2] and corrupting the morals of a minor child. ^[3] Motions for new trial and in arrest of judgment were filed and denied, and on November 25, 1974 appellant was sentenced. The sentence was modified on January 20, 1975, and this appeal followed.

The only issue raised by appelalnt concerns the lower court's refusal to quash the indictments for lack of specificity of the date or dates on which the alleged offenses took place.

The situation giving rise to this appeal is both sad and sordid. Suffice to say that the female child involved was thirteen (13) years of age and living with her mother and step-father during the time framed in the indictments from January 1, 1972, to July 1, 1973. It is alleged that during that period and at the direction of her step-father and perhaps her mother this child engaged in many and varied sexual acts with numerous individuals, among them this appellant.

The indictments returned against this appellant read that appellant committed these offenses 'between 1 January 1972 and 1 July, in the year of our Lord one thousand nine hundred 73, at the Borough of Williamsburg in the County (Blair). . . .' Appellant filed a request for a Bill of Particulars, seeking to obtain the 'date and time, as exact as may be, that the offense is alleged to have occurred.' The Commonwealth disclosed the following information in response:

'The Commonwealth is able to establish when the defendant first came to the victim's home being on or about January 1, 1972 and subsequent visits up to July 1, 1973.'

At trial the victim testified to two (2) occasions when appellant came to her home. The first such visit testified to was shortly after a specified hearing before a Magistrate. The parties stipulated such hearing was held on June 26, 1972. The victim further testified that the second occasion was two (2) or three (3) weeks after the first visit, and further that both were in the summer of 1972. Whether this meant the months of July and August, as would be expected of a child of these years, or the more technical inclusion of a part of September is of no importance. The point is that the occasions were most certainly between June 26, 1972, and September 22, 1972 the technical end of that summer. Either of these time periods does not seem too difficult to establish, nor does it seem to place too difficult a burden upon the Commonwealth by indictment to be more specific, as to time, than an eighteen (18) month period. It certainly does not excuse a duplication of this carelessness in the Bill of Particulars.

Apparently the January 1, 1972, to July 1, 1973, period was the time span in which the child lived with her mother and stepfather and perhaps is the total time span of the alleged sexual activities with many individuals. But that fact does not excuse the laxity of the Commonwealth as to this appellant. The question then is whether this laxity is fatal to the validity of the indictment. More specifically, does it inform appellant of that which he must be prepared to meet in the preparation of his defense?

Rule 213(a)(3) of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix provides:

'(a) An indictment shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:

'. . .

'(3) 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.' (Emphasis added)

This court has had prior occasions to discuss the sufficiency of an indictment. In Commonwealth v. Campbell, 116 Pa.Super. 180, 186, 176 A. 246, 249 (1935), we stated:

'Of course, the indictment must be drawn with reasonable clearness and certainty to show the substance, time, and place of the alleged offense, so that a defendant may be informed in an intelligent manner of what he is called upon to answer and protected against a second conviction of the same offense: Seifried v. Com., 101 Pa. 200; Com. v. Romesburg, 91 Pa.Super. 559, 562. 'The particularity demanded, however, is only of the degree required in declarations,--'certainty to a certain intent in general;' or that which, upon a fair and reasonable construction, may be called certain, and in which the averments of matters obviously arising from implication is unnecessary: (Citing cases).

"Whether the indictment, in the case before us, might not have been framed with greater precision and certainty, on the points embraced in the motion to quash, need not be considered; we have only to determine whether it sets forth, with the requisite certainty, the essentials of the offense which it is dessigned (sic) to charge.' Com. v. White, 24 Pa.Super. 178, 180. See, also, Com. v. Frey, supra, 50 Pa. 245. This indictment stood these legal tests.'

In Commonwealth v. Rouse, 207 Pa.Super. 418, 218 A.2d 100 (1966), bills of indictment alleged that Rouse had committed several crimes, among them sodomy and corrupting the morals of a minor child, 'on or about November 15, 1964.' Rouse contested the validity of the indictment, arguing that it was not specific enough as to time and place. In passing upon his contention, this court stated:

'It is well established in this jurisdiction that the Commonwealth is not restricted to proof of the crime on the exact date stated in the indictment. Commonwealth v. Morrison, 180 Pa.Super. 121, 118 A.2d 258 (1955). In the prosecution of sodomy or other crimes in which a particular date or day of the week is not the essence of the offense, the Commonwealth's burden is to prove the commission of the crime upon some date fixed with reasonable certainty and within the prescribed statutory period. Commonwealth v. Mourar, 167 Pa.Super. 279, 74 A.2d 734 (1950). We are of the opinion that this burden was met in this case. Here the trial judge, who observed all the witnesses and assessed their credibility, found that 'on several occasions during the period from approximately the first week in November to the second week in December, and on or about the New Year', the defendant committed the acts with which he was charged. . . .' 207 Pa.Super. at 422--23, 218 A.2d at 102.

In the instant case, appellant's defense was founded entirely on a mistaken identity theory. He denied knowing the victim, the step-father or the mother. He offered tatoos on his body, which the victim failed to rememeber, as evidence of mistake. He offered witnesses and evidence that he was bearded and long haired during the interval in question, and not clean shaven and short haired as described by the victim. He denied ever being in Williamsburg. In short, at no point in the record did appellant indicate any prejudice by reason of the lack of specific dates in the preparation of his defense. Nor has be contended that the time of the offense is an essential element thereof.

While each case must be separately analyzed to determine the sufficiency of an allegedly improper indictment, we believe that under the facts and circumstances of the instant case, the indictment met the requirements of Rule 213(a)(3) and the tests established by prior cases. As stated by the lower court:

'That it did not in anywise affect or change or alter the defense of the defendant or his ability to defend is best demonstrated by his positive and affirmative testimony to the effect that he had never visited nor had he had sexual relations of any nature or character with the child here involved nor with her mother. He testified that this lack of connection between himself and the child here involved referred to the time complained of or testified to as well as all other times. We believe in light of all the circumstances here, that the averment as of time was sufficient: Commonwealth v. Devlin, 225 Pa.Super. 138, 310 A.2d 310 (1973).' ^[4]

Judgment affirmed.

JACOBS, J., concurs in the result.

VAN der VOORT, J., files a concurring opinion in which WATKINS, President Judge, joins.

VAN der VOORT, Judge (concurring):

While I concur in the majority's affirmance of judgment of sentence, I note my...