Com. v. Libengood, J. , 152 A.3d 1057 ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY P. LIBENGOOD
Appellant No. 593 MDA 2016
Appeal from the Judgment of Sentence January 25, 2016
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000918-2015
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 29, 2016
Appellant, Jeffrey P. Libengood, appeals from the judgment of
sentence entered on January 25, 2016, as made final by the denial of his
post-sentence motion on March 14, 2016. We affirm.
The factual background and procedural history of this case are as
follows. During 2014, Appellant repeatedly sexually abused S.D. On June
18, 2015, the Commonwealth charged Appellant via criminal information
with four counts of aggregated indecent assault of a child,1 two counts of
rape of a child,2 two counts of statutory sexual assault,3 involuntary deviate
1
18 Pa.C.S.A. § 3125(a)(7).
2
18 Pa.C.S.A. § 3121(c).
3
18 Pa.C.S.A. § 3122.1(b).
* Retired Senior Judge assigned to the Superior Court
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sexual intercourse with a child,4 corruption of minors,5 endangering the
welfare of a child,6 and indecent assault of a child.7
On or about June 22, 2015, Appellant waived his right to arraignment.
On or about July 2, 2015, Appellant requested a bill of particulars from the
Commonwealth. When the Commonwealth failed to respond to that request,
Appellant filed a motion on July 16, 2015 seeking a bill of particulars
outlining the exact dates of the alleged assaults. The trial court granted the
motion and ordered the Commonwealth to provide a bill of particulars. On
July 23, 2015, the Commonwealth filed its bill of particulars which stated, in
relevant part, “[t]he alleged incidents in the above captioned [case]
occurred at various times between January 1, 2014 and December 20, 2014
as stated in the criminal complaint and criminal information.” Bill of
Particulars, 7/23/15, at 1.
On October 28, 2015, Appellant filed a motion in limine seeking to
bar S.D.’s testimony because the Commonwealth’s bill of particulars was
insufficient. The trial court orally denied the motion that same day. On
October 29, 2015, Appellant was convicted of two counts of aggregated
indecent assault of a child, rape of a child, two counts of statutory sexual
4
18 Pa.C.S.A. § 3123(b).
5
18 Pa.C.S.A. § 6301(a)(1)(ii).
6
18 Pa.C.S.A. § 4304(a)(1).
7
18 Pa.C.S.A. § 3126(a)(7).
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assault of a child, corruption of minors, endangering the welfare of a child,
and indecent assault of a child. The trial court sentenced Appellant to 10 to
20 years’ imprisonment for the rape of a child conviction. The prison
sentences imposed for the remaining convictions were ordered to run
concurrently with the rape of a child sentence. On February 4, 2016,
Appellant filed a post-sentence motion. On March 16, 2016, the trial court
denied the post-sentence motion. This timely appeal followed.8
Appellant presents two issues for our review:
1. Whether the trial court erred in dismissing [Appellant’s m]otion
in [l]imine after the Commonwealth failed to provide full and
complete responses to his request and court order for more
specific dates and times for the alleged incidents, and simply
charged a one[-]year time frame, precluding his ability to
adequately defend himself?
2. Whether the trial court erred in applying the mandatory
minimum sentence provisions of 42 Pa.C.S.[A.] § 9718(a)(1) in
light of Commonwealth v. Wolfe[, 106 A.3d 800 (Pa. Super.
2014), aff’d, 140 A.3d 651 (Pa. 2016)]?
Appellant’s Brief at 3-4.
In his first issue, Appellant argues that the trial court erred in denying
his motion in limine to bar S.D.’s testimony. In that motion, Appellant
8
On April 12, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On May 5, 2016, Appellant filed his concise statement.
On June 13, 2016, the trial court issued its Rule 1925(a) opinion.
The Commonwealth contends that Appellant waived his first issue because of
lack of specificity in his concise statement. We conclude, however, that
Appellant’s concise statement was not so vague as to warrant waiver of his
first issue.
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argued that the Commonwealth’s failure to provide the exact dates upon
which the assaults occurred in its bill of particulars warranted barring S.D.’s
testimony. Although Appellant’s motion was titled a motion in limine, it was
in fact a motion pursuant to Pennsylvania Rule of Criminal Procedure 572(C).
We review a trial court’s Rule 572 decision for an abuse of discretion. See
Commonwealth v. Mercado, 649 A.2d 946, 959 (Pa. Super. 1994)
(citation omitted).
Rule 572 provides that:
(A) A request for a bill of particulars shall be served in writing by
the defendant upon the attorney for the Commonwealth within
[seven] days following arraignment. The request shall promptly
be filed and served as provided in Rule 576.
(B) The request shall set forth the specific particulars sought by
the defendant, and the reasons why the particulars are
requested.
(C) Upon failure or refusal of the attorney for the Commonwealth
to furnish a bill of particulars after service of a request, the
defendant may make written motion for relief to the court within
[seven] days after such failure or refusal. If further particulars
are desired after an original bill of particulars has been
furnished, a motion therefor may be made to the court within
[five] days after the original bill is furnished.
(D) When a motion for relief is made, the court may make such
order as it deems necessary in the interests of justice.
Pa.R.Crim.P. 572. As noted above, in this case the Commonwealth provided
its bill of particulars on July 23, 2015. Appellant did not file his motion in
limine until October 28, 2015 – more than 90 days after the bill of
particulars was furnished.
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The trial court denied Appellant’s motion on two grounds. First, the
trial court found that Appellant failed to provide a compelling reason why he
failed to seek relief under Rule 572(C) within five days. Second, the trial
court found that even if it were to consider the merits of Appellant’s motion,
he was not entitled to relief. As we ascertain no abuse of discretion by the
trial court in denying the motion because of Appellant’s failure to comply
with the five-day time limit proscribed by Rule 572(C), we decline to address
the trial court’s alternative holding on the merits.
We find instructive this Court’s decision in Commonwealth v.
Montalvo, 641 A.2d 1176 (Pa. Super. 1994). In Montalvo, like in the case
at bar, the defendant filed a motion in limine because of his dissatisfaction
with the bill of particulars provided by the Commonwealth. This Court stated
that “when defense counsel desires further particulars after an original bill of
particulars has been furnished, the proper action is to file a motion
requesting the additional particulars within five days after the original
bill is furnished.” Id. at 1186 (citation omitted; emphasis added).
Although not explicitly stated in Montalvo, the implication of this
Court’s statement is that the failure of a defendant to file a motion within
five days of the original bill of particulars being filed by the Commonwealth
results in the defendant waiving any defect in the bill of particulars provided
by the Commonwealth. This reading of Montalvo is confirmed by dicta
contained within this Court’s decision in Commonwealth v. Albanesi, 338
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A.2d 610 (Pa. Super. 1975). In Albanesi, this Court stated that if the
defendant failed to file a motion within the time periods specified by Rule
572’s predecessor, the defendant may be precluded from later seeking relief
because of the Commonwealth’s failure to provide an appropriate bill of
particulars. Id. at 611.
This treatment of an untimely Rule 572(C) motion also comports with
the handling of untimely omnibus pretrial motions. Under Rule 579, the
defendant’s omnibus pretrial motion generally must be filed within 30 days
of arraignment. See Pa.R.Crim.P. 579(A). As this Court has explained,
failure to file an omnibus pretrial motion within that time period results in
waiver of any issues raised in an untimely omnibus pretrial motion. See
Commonwealth v. Borovichka, 18 A.3d 1242, 1248 (Pa. Super. 2011).
We ascertain no reason why filing a late Rule 572(C) motion should be
treated differently than filing a late omnibus pretrial motion.
The time requirements included within the Pennsylvania Rules of
Criminal Procedure for filing certain motions are critical to the efficient
administration of justice. Specifically, the time requirements permit trial
courts sufficient time to consider various legal issues and rule thereon while
ensuring the defendant has a speedy trial. Furthermore, failure to file a
timely motion is likely to result in a waste of judicial resources. This case
provides an example of that dynamic. If the trial court granted Appellant’s
motion and barred S.D.’s testimony, there is little question that the
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Commonwealth would have immediately appealed that order to this Court.
That appeal necessarily would have been filed literally minutes before the
jury panel was to be sworn and the case begun. This would have resulted in
the jurors, who were waiting in the jury room during argument on
Appellant’s motion, being sent home. Although in some instances such
delayed proceedings are unavoidable, as the trial court aptly noted in its
Rule 1925(a) opinion in this case, the only explanation Appellant’s counsel
provided for the untimely filing of the Rule 572(C) motion was trial tactics.
Trial tactics cannot excuse a blatant violation of the applicable court rules.
Accordingly, we conclude that the trial court did not abuse its discretion in
denying Appellant’s motion in limine on timeliness grounds.
In his second issue, Appellant argues that his sentence is illegal.
“Issues relating to the legality of a sentence are questions of law. Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super.
2016) (ellipsis and citation omitted).
Appellant argues that he was sentenced to a mandatory minimum
sentence pursuant to 42 Pa.C.S.A. § 9718, which provides that a defendant
convicted of the rape of a child be sentenced to not less than 10 years’
imprisonment. In Wolfe, our Supreme Court held “that Section 9718 is
irremediably unconstitutional on its face, non-severable, and void.” Wolfe,
140 A.3d at 663. Thus, any sentence imposed thereunder is illegal. See id.
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The trial court in the case sub judice, however, did not impose a
sentence pursuant to section 9718. Although the trial court referenced
section 9718, it explicitly stated that it was not applying the statute.
Specifically, the trial court stated that, despite its disagreement with this
Court’s decision in Wolfe and the fact that, at the time of sentencing,
allocatur had been granted in Wolfe, it was bound by this Court’s decision
that section 9718 is unconstitutional. See N.T., 1/25/16, at 26-27. Thus, it
proceeded to sentence Appellant without consideration of the mandatory
minimum sentence. See id. at 27. Upon consideration of the 42 Pa.C.S.A.
§ 9721(b) factors, the trial court determined that the 10 to 20 year sentence
previously mandated by section 9718 was appropriate in this case and thus
imposed that sentence. See id. As Appellant was not sentenced pursuant
to section 9718, his sentence is legal and he is not entitled to relief on this
claim of error.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2016
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