Com. v. Brownlee, R. ( 2017 )

J-S78039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT CHARLES BROWNLEE
Appellant No. 686 WDA 2016
Appeal from the PCRA Order April 11, 2016
in the Court of Common Pleas of Jefferson County Criminal Division
at No(s): CP-33-CR-0000004-2014
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 11, 2017
Appellant, Robert Charles Brownlee, appeals from the order of the
Jefferson County Court of Common Pleas denying his Post Conviction Relief
Act1 (―PCRA‖) petition. Appellant pleaded guilty to (1) one count of
corruption of minors graded as a third degree felony (―felony corruption‖),2
(2) eight counts of corruption of minors graded as first degree
misdemeanors (―misdemeanor corruption‖),3 and (3) one count of indecent
assault—person less than thirteen years of age.4 Appellant asserts that
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 6301(a)(1)(ii).
3
18 Pa.C.S. § 6301(a)(1)(i).
4
18 Pa.C.S. § 3126(a)(7).
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guilty plea counsel (―defense counsel‖) was ineffective for failing to object to
defects in the criminal information and guilty plea colloquy. We affirm.
On November 19, 2013, Appellant was arrested and charged with
corruption of minors and indecent exposure for exposing himself to two
young girls. The incident report, authored by a state trooper, stated in
relevant part:
I have reviewed the taped interviews of both victims.
During the interview, victim 1 . . . advises that her step
uncle [Appellant] would take her on walks, alone, while
they were at the cabin. During the walks he would
undress and masturbate in front of her. She advises that
this happened about 3-6 times every weekend they were
at the cabin from the time she was age 8 until she was 13.
She said she would go to the camp on holiday weekends
like Memorial Day and the Fourth of July, about 4 times a
year. She estimated that these incidents occurred a total
of approximately fifty times.
R.R. 273a.5 Defense counsel sent a copy of the incident report to Appellant.
Id. at 167a.
On February 21, 2014, the Commonwealth filed a 143-count
information against Appellant. On May 7, 2014, the Commonwealth filed a
151-count amended information charging Appellant with committing fifty
counts of felony corruption, fifty counts of misdemeanor corruption, fifty
counts of indecent assault and one count of indecent exposure ―in Heat[h]
Township‖ between May 28, 2007 and September 2, 2013. The amended
5
For the parties‘ convenience, we cite to the reproduced record.
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information defined each count of felony and misdemeanor corruption with
the same template:
[Appellant] corrupts or tends to corrupt the morals of a
minor less than 18 years of age, or who aids, abets,
entices or encourages any such minor in the commission of
an offense under Chapter 31 (relating to sexual offenses),
to-wit: In that the actor did corrupt the morals of [one of
the victims], while she was between the ages of [four
through ten years, in the case of the first victim, or eight
through thirteen years, in the case of the second victim],
he would take the child on a walk and then undress in
front of her and masturbate.
Id. at 277a. None of the felony corruption counts included the element of
―course of conduct‖ that the legislature added to the corruption of minors
statute as of December 6, 2010.6
6
Effective December 6, 2010, the corruption of minors statute was amended
to provide in relevant part:
(a) Offense defined.—
(1) (i) Except as provided in subparagraph (ii),
whoever, being of the age of 18 years and upwards, by
any act corrupts or tends to corrupt the morals of any
minor less than 18 years of age, or who aids, abets,
entices or encourages any such minor in the
commission of any crime, or who knowingly assists or
encourages such minor in violating his or her parole or
any order of court, commits a misdemeanor of the first
degree.
(ii) Whoever, being of the age of 18 years and upwards,
by any course of conduct in violation of Chapter 31
(relating to sexual offenses) corrupts or tends to
corrupt the morals of any minor less than 18 years of
age, or who aids, abets, entices or encourages any such
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Prior to Appellant‘s guilty plea, defense counsel and Appellant watched
a video recording of forensic interviews with both victims. Id. at 205a.
On May 7, 2014, Appellant entered an open plea of guilty to one count
of felony corruption, eight counts of misdemeanor corruption and one count
of indecent assault.
During the guilty plea colloquy, the trial court defined corruption of
minors as follows: ―For the charge of corruption of minors, the
Commonwealth would have to prove beyond a reasonable doubt that . . .
you engaged in some type of activity that would corrupt or tend to corrupt
the morals of a person under the age of 18; and for this level of corruption,
it would be of a sexual nature.‖7 Id. at 316a. The court did not explain the
difference between felony and misdemeanor corruption and did not mention
the ―course of conduct‖ element of felony corruption. See footnote 6,
supra. There was also no description of the dates or times of the offenses
during the colloquy. Nevertheless, defense counsel waived the reading of
the facts. R.R. at 316a. The court asked Appellant whether he had
minor in the commission of an offense under Chapter
31 commits a felony of the third degree.
18 Pa.C.S. § 6301(a)(1) (emphasis added).
7
The court also defined indecent assault as ―touch[ing] or caus[ing] a minor
to touch a private or intimate part of the body . . . for the purpose of sexual
arousal either in [the defendant] or the minor.‖ R.R. at 316a.
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―sufficient time to review all the written facts charged against [him] with
[defense counsel].‖ Id. at 317a. Appellant answered: ―Yes, sir.‖ Id.
At sentencing on October 23, 2014, the trial court observed that
Appellant had five prior convictions for indecent exposure or indecent assault
between 1980 and 1992. Id. at 328a. In view of Appellant‘s prior history,
the planning that was necessary to commit the present offenses, and
Appellant‘s lack of remorse, the court sentenced Appellant to ten consecutive
terms of one to two years‘ imprisonment, resulting in an aggregate sentence
of ten to twenty years‘ imprisonment. Id. at 368a-372a. Appellant‘s
sentence on the felony corruption count was identical to his sentence on the
nine other counts. The court also determined that Appellant was a sexually
violent predator. Id. at 329a.
On November 3, 2014, Appellant filed post-sentence motions claiming
that his sentence was excessive. On November 12, 2014, the trial court
denied Appellant‘s post-sentence motions. Appellant did not file a direct
appeal.
On November 3, 2015, Appellant timely filed a counseled PCRA
petition alleging, inter alia, that defense counsel was ineffective for
neglecting to object to (1) the Commonwealth‘s failure in the information
and amended information to identify the dates and locations of the charged
crimes with the degree of specificity necessary to enable Appellant to defend
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himself, and (2) the trial court‘s failure to explain the elements of each
offense during Appellant‘s guilty plea hearing.
On January 14, 2016, the PCRA court held an evidentiary hearing
during which defense counsel and Appellant testified. Defense counsel
testified that he received various documents in the course of his
representation of Appellant, including a criminal complaint, affidavit of
probable cause, incident report and information. Id. at 164a-169a.
Defense counsel testified that he did not see any defects in the
information when he first received it. Id. at 169a. During the course of
representation, counsel had ―numerous meetings and conversation[s]‖ with
Appellant and ―discuss[ed] the corruption of minors, the whole case,
basically,‖ including the elements of this offense. Id. at 196a.
Defense counsel also testified that he and Appellant watched
videotaped forensic interviews of the victims. Based on these interviews,
defense counsel stated that ―we knew that at least we were able to
understand why the number of counts were charged in the complaint . . . .‖
Id. at 206a. Defense counsel added that ―specific dates‖ were ―never
detailed. But we had dates of the holiday weekends on those years [when
the incidents took place] because that‘s when the family would get together
at the family camp in Jefferson County.‖ Id.
Defense counsel admitted, however, that he did not describe the
―course of conduct‖ element of felony corruption to Appellant:
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Q. Now, can you tell us whether you had explained at all to
[Appellant] the distinction between a felony three
[c]orruption—because he pled guilty to one of those—and
an M one . . . [c]orruption . . . ?
A. Can I [say] what?
Q. Whether you ever talked to him about the distinction of
it. One count was graded as a felony three; the rest were
graded as M one.
A. I don‘t want to say—I can‘t define the moment where I
sat in front of him and talked to him. The case was sort of
compressed into a relatively short amount of time, and we
had numerous conversations and correspondence . . . .
Q. [R]egarding the felony three [c]orruption distinction,
you were asked the question about whether you ever
objected to the [c]ourt not saying during his colloquy of
[Appellant], not saying to [Appellant] that it specifically
requires a course of conduct. Did you see any advantage
to you, or to [Appellant], to object to the [c]ourt‘s
description of the offense at that time?
A. No. To be honest, I didn‘t pick up on that until this
PCRA [petition] was filed against me.
Id. at 218-19a.
Appellant testified during the PCRA hearing that at the time of his
guilty plea, he knew the identity of the victims and the fact that the charges
arose from incidents at a camp in Heath Township. Id. at 239a. Appellant
understood why the Commonwealth charged him with fifty separate
incidents, but he believed the Commonwealth could prove only six such
incidents. Id. at 239-41a. He further understood that it was risky to go to
trial on all charges ―in light of the environment of the [c]ourt and so on.‖
Id. at 241a.
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On March 9, 2016, Appellant filed a post-hearing memorandum in
which he explained his theory of ineffective assistance, and the evidentiary
proceedings, as follows:
The [i]nformation spanned seventy[-]six (76) months
(over 2300 days) but did not identify the dates or locations
of the alleged incidents. The [i]nformation did not identify
the dates and locations of each incident so there was
nothing in the information as a stand-alone document
distinguishing one count from the other. [Defense
counsel] agreed [during the evidentiary hearing] that the
[i]nformation failed to include all of the elements of [the
felony counts of] 18 [Pa.C.S. §] 6301(a)(1)(ii) because it
failed to state the ―course of conduct‖ element. There was
no way of determining from the charging instrument that
the [misdemeanor] violations of 18 [Pa.C.S. §] 6301(a)(1)
were not the same crime or lesser included offenses of the
violation of 18 [Pa.C.S. §] 6301(a)(1)(ii). He had no
explanation for his failure to object to the trial court‘s
omission of the ―course of conduct‖ element during the
plea colloquy. He did not discuss an alibi defense with
[Appellant]. He did not challenge the charging instrument
because he did not want to antagonize the prosecution.
He did not want to risk a heavy sentence if convicted after
a trial. He stated that the prosecution insisted on the [§]
6301(a)(1)(ii) (F3) charge ―because [the prosecution] was
insisting in the plea negotiations that one of the girls had
put one of the incidents at issue after the date that it was
enacted.‖ He did not see any advantage to contesting the
―course of conduct‖ element until the PCRA petition was
filed. He did not review the [s]tipulated [a]mended
[i]nformation with [Appellant] and he did not identify the
separate instances to which [Appellant] was entering a
guilty plea. He did not recall whether [Appellant] admitted
to eight instances of ―this conduct.‖
[Appellant] took the stand and testified that when he
retained [defense counsel], he had not made up his mind
whether to take the case to trial or negotiate a plea. He
discussed an alibi defense with [defense counsel], but he
could not develop it because he did not know what dates
for which he would need the alibi. [Defense counsel] did
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not explain the basic elements of each offense or the
elemental facts the prosecution would have to prove if the
case went to trial. [Defense counsel] did not investigate
an alibi defense. If he had been told the [i]nformation was
deficient because it did not set forth a reasonably certain
date for each offense, he would not have pled guilty. He
did not believe the prosecution could prove [fifty] separate
instances of corruption of the morals of a minor or
indecent exposure. He testified that he exposed himself
six (6) times. He was concerned about taking the case to
trial ―in light of the environment of the [c]ourt and so on.‖
He did not agree that he would have had a problem
because of the six incidents. If the case had gone to trial,
he would not have made any admissions, and he would
have exposed the victims‘ exaggerations. He would have
been able to produce alibi testimony based on the girls‘
whereabouts and/or his whereabouts. He would have
been able to produce evidence that the girls were not
where they said they were or he was not where the girls
said he was and thereby establish an alibi.
Post-Hr‘g Mem., 3/9/16, at 41-42 (citations omitted).
On April 11, 2016, the PCRA court entered an opinion and order
denying Appellant‘s petition. Despite conceding that it did not mention the
―course of conduct‖ element during the guilty plea hearing, the court
determined that Appellant‘s claim lacked arguable merit, because he had
actual notice that a ―course of conduct‖ was part of the felony corruption
count:
[Appellant] was represented from start to finish by
[defense counsel], who was actively engaged with his
client from start to finish. As he credibly testified, he and
[Appellant] met several times and had numerous
conversations between the date of the preliminary hearing
and the date [Appellant] entered his guilty pleas, during
which time [defense counsel] clearly explained the
elements of all 151 charges. From speaking with his
attorney, therefore, [Appellant] knew on [the date of his
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guilty plea] that ―course of conduct‖ was part of the F3
[c]orruption of [m]inors count to which he was pleading.
He also knew that the victims, and the Commonwealth on
their behalf, were together alleging [fifty] separate
instances of the offensive conduct over a five-and-a-half–
year period. Notwithstanding the [c]ourt‘s failure to state
that the F3 entailed a course of conduct, therefore,
[Appellant] was well aware prior to pleading guilty of that
statutory element and the Commonwealth‘s evidence to
prove it.
PCRA Ct. Op., 4/11/16, at 10. The PCRA court also determined that
Appellant failed to demonstrate prejudice from the failure to mention the
―course of conduct‖ element during the guilty plea colloquy. Id.
Appellant filed a timely notice of appeal to this Court. Both Appellant
and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
1. Whether [guilty plea] counsel was ineffective for failing
to object to the trial court‘s violation of the Fourteenth
Amendment Due Process Clause arising from the court‘s
failure to inform [Appellant] of each and every element of
a felony violation of [18 Pa.C.S. §] 6301(a)(1)(ii)?
2. Whether [guilty plea] counsel was constitutionally
ineffective for failing to object to a criminal information
and stipulated amended information that failed to include
all of the elements of a felony violation of [18 Pa.C.S. §]
6301(a)(1)(ii)[,] including the ―course of conduct‖
element[,] and failed to identify the dates and locations of
the crimes with sufficient specificity to protect the federal
and state constitutional right to fair notice of the charge
and protect [Appellant‘s] right not to be punished more
than once for the same crime?
Appellant‘s Brief at 1-2 (some capitalization omitted).
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―On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court‘s findings are
supported by the record and without legal error.‖ Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). When a PCRA
petitioner alleges ineffective assistance of counsel, counsel is presumed to
have provided effective representation unless the petitioner pleads and
proves that: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable basis for his or her conduct; and (3) the petitioner was
prejudiced by counsel‘s action or omission. Commonwealth v. Spotz, 84
A.3d 294, 311 (Pa. 2014). ―In order to meet the prejudice prong of the
ineffectiveness standard, a defendant must show that there is a reasonable
probability that but for counsel‘s unprofessional errors, the result of the
proceeding would have been different.‖ Commonwealth v. Reed, 42 A.3d
314, 319 (Pa. Super. 2012) (citation and quotation marks omitted), appeal
denied, 114 A.3d 416 (Pa. 2015). A claim of ineffective assistance of
counsel will fail if the petitioner does not meet any of the three prongs.
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). ―The burden
of proving ineffectiveness rests with [a]ppellant.‖ Commonwealth v.
Rega, 933 A.2d 997, 1018 (Pa. 2007) (citation omitted).
To prove ineffective assistance of defense counsel,
the defendant must show that counsel‘s deficient
stewardship resulted in a manifest injustice, for example,
by facilitating entry of an unknowing, involuntary, or
unintelligent plea. See, e.g., [Commonwealth v. Allen,
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732 A.2d 582, 587 (Pa. 1999)] (―Allegations of
ineffectiveness in connection with the entry of a guilty plea
will serve as a basis for relief only if the ineffectiveness
caused appellant to enter an involuntary or unknowing
plea‖).
Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004) (some
citations omitted). This standard is equivalent to the ―manifest injustice‖
standard applicable to all post-sentence motions to withdraw a guilty plea.
Id.
In his first argument, Appellant contends that the PCRA court erred by
declining to find defense counsel ineffective for (1) failing to inform
Appellant of the ―course of conduct‖ element in the felony subsection of the
corruption of minors statute, 18 Pa.C.S. § 6301(a)(1)(ii), and (2) failing to
request the trial court to define this element during his guilty plea hearing.
Appellant contends that he would not have pleaded guilty to any charges
had he been informed of this element.
A valid guilty plea colloquy must delve into six areas: (1) the nature of
the charges, (2) the factual basis for the plea, (3) the right to a jury trial,
(4) the presumption of innocence, (5) the maximum sentencing ranges, and
(6) the plea court‘s power to deviate from any recommended sentence.
Comment, Pa.R.Crim.P. 590(A)(2); Flanagan, 854 A.2d at 500. A guilty
plea must be knowing, voluntary and intelligent in order to be constitutional.
See Henderson v. Morgan, 426 U.S. 637, 645 (1976).
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The failure to mention an element of the charged offense during a
guilty plea colloquy does not automatically invalidate the plea. The United
States Supreme Court has instructed that
[i]nstead of testing the voluntariness of a plea by
determining whether a ritualistic litany of the formal legal
elements of an offense was read to the defendant, . . . the
court should examine the totality of the circumstances and
determine whether the substance of the charge, as
opposed to its technical elements, was conveyed to the
accused.
Henderson, 426 U.S. at 644.
Pennsylvania courts have repeatedly followed the same principle. In
Commonwealth v. Shaffer, 446 A.2d 591 (Pa. 1982), our Supreme Court
cited Henderson’s presumption and observed: ―So also may we presume
that, absent an assertion that appellant did not understand the nature of the
crimes, counsel explained the nature of the offense in sufficient detail to give
him notice of that which he admits by entering a plea of guilty.‖ Shaffer,
446 A.2d at 595. Shaffer noted with approval Henderson’s directive that
―the validity of a plea may be determined from the ‗totality of the
circumstances‘ attendant upon the entry of the plea.‖ Id. (citing
Henderson, 426 U.S. at 644). Justice McDermott concurred, commenting
that attacks on guilty plea colloquies are ―all too often . . . used to disguise
with legalistic formalism, what is, in essence, an attempt to obtain a new
trial as relief from the sting of a jail sentence.‖ Id. at 598 n.1.
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In Commonwealth v. Gardner, 452 A.2d 1346 (Pa. 1982), a PCHA
decision entered shortly after Shaffer, the defendant contended that
counsel was ineffective for permitting him to enter a guilty plea when the
trial court neglected to inform him of his right to participate in jury selection.
Gardner, 452 A.2d at 1346-47. Our Supreme Court examined not only the
oral and written plea colloquy, but also the off-the-record communications
between the defendant and counsel, to determine whether the defendant
was informed of this right prior to his guilty plea. Id. at 1347. The
defendant had not been so informed on the record, but at the evidentiary
hearing on the PCHA petition, trial counsel explained that he had not
objected to the guilty plea colloquy because, prior to the colloquy, he had
twice informed the defendant of the right not mentioned by the trial court on
the record. Id. Based on this record, the Supreme Court held that trial
counsel did not provide ineffective assistance and affirmed the denial of
PCHA relief. Id. Gardner makes clear that evidence other than the record
of the actual plea colloquy, such as off-the-record communications between
attorney and client, can be relevant to the question of whether the
defendant voluntarily, knowingly, and intelligently entered his guilty plea.8
8
See also Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003) (citation
omitted) (to determine voluntariness of guilty plea, ―trial court may consider
a wide array of relevant evidence under this standard including, but not
limited to, transcripts from other proceedings, off-the-record
communications with counsel, and written plea agreements‖);
Commonwealth v. Schultz, 477 A.2d 1328, 1329 (Pa. 1984) (defendant
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The ―course of conduct‖ element of felony corruption in 18 Pa.C.S. §
6301(a)(1)(ii) ―require[s proof of] multiple acts over time‖ that corrupt or
tend to corrupt the morals of a minor. Commonwealth v. Kelly, 102 A.3d
1025, 1031 (Pa. Super. 2014). To satisfy ex post facto requisites, at least
one of these acts must occur on or after the effective date of the ―course of
conduct‖ element, December 6, 2010.9
could not withdraw guilty plea for robbery despite trial court‘s failure to
inform him during his guilty plea colloquy that theft was an element of
robbery, where defendant was aware of the nature of the charges based on
―overwhelming‖ evidence outlined during guilty plea colloquy as well as fact
that he had three prior robbery convictions); Commonwealth v. Martinez,
453 A.2d 940, 942-43 (Pa. 1982) (where defendant pled guilty to third
degree murder and robbery, but there was ―no recitation of the elements of
the crimes‖ during the guilty plea colloquy, plea was voluntary and knowing
because defendant was aware of nature of charges based on extensive
evidence of guilt presented during the plea colloquy); Commonwealth v.
Yager, 685 A.2d 1000, 1004-05 (Pa. Super. 1996) (although guilty plea
colloquy did not inform defendant of possibility of consecutive sentences,
totality of circumstances surrounding the plea demonstrated that defendant
fully understood nature and consequences of his plea; defendant signed
written guilty plea acknowledging that he discussed possible range of
sentences with counsel, and counsel testified that he advised defendant of
likelihood of consecutive sentences).
9
Both the United States Constitution and the Pennsylvania Constitution
prohibit the enactment of ex post facto laws. U.S. Const. Art. I, § 10; Pa.
Const. Art. I, § 17. These provisions ―attempt[] to preserve for persons the
right to fair warning that their conduct will give rise to criminal penalties.‖
Commonwealth v. Kizak, 148 A.3d 854, 857 (Pa. Super. 2016) (citations
and quotation marks omitted). A law violates ex post facto principles when,
inter alia, ―(1) the law makes an act criminal which was not criminal when
done; (2) the law aggravates a crime—one which makes it greater than it
was when committed; [or] (3) the law changes a punishment, and makes it
greater than it was when a punishable act was committed. . . .‖ Id. (citation
omitted). ―[I]n order for a criminal or penal law to be deemed an ex post
facto law, two critical elements must be met: it must be retrospective, that
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Here, defense counsel admitted during the PCRA hearing that he failed
to explain the ―course of conduct‖ element to Appellant; indeed, he did not
even notice that this element was missing from the information until he
received Appellant‘s PCRA petition. R.R. at 218-19. Moreover, the ―course
of conduct‖ element is missing from each felony corruption count in the
information. During the guilty plea colloquy, the trial court did not mention
the course of conduct element, and defense counsel waived the reading of
the facts, which would have detailed the evidence that established
Appellant‘s course of conduct.
Despite these omissions, Appellant admitted committing a course of
conduct of sex offenses, since he acknowledged during the PCRA hearing
that there were six occasions in which he exposed himself to and
masturbated in front of the victims. See Kelly, 102 A.3d at 1031.
Moreover, Appellant implicitly acknowledged that at least one of these
offenses took place after December 6, 2010. Appellant admitted watching a
videotape of the victims‘ forensic interviews prior to his guilty plea in which
one victim stated that he abused her at least fifty times on holiday weekends
between May 2007 and September 2013. Based on the videotape, he
is, it must apply to events occurring before its enactment, and it must
disadvantage the offender affected by it.‖ Id. (citations and quotation
marks omitted). Under these precepts, an ex post facto violation would
occur if the Commonwealth purported to satisfy the ―course of conduct‖
element solely with evidence of acts that took place before the effective date
of this element.
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admitted ―under[standing] why the Commonwealth charged [him] with [at
least] 50 separate incidents‖ of corruption of minors. R.R. at 236a, 239a.
Further, defense counsel testified that he reviewed the videotape together
with Appellant and also sent Appellant a copy of a police report in which one
of the victims stated that he abused her when she was between ages eight
and thirteen, close to the same time period as May 2007 to September
2013. Although the question is close, we conclude that the totality of these
circumstances establishes that Appellant was on notice at the time of his
guilty plea that at least one of the incidents in his course of sex offenses
took place after December 6, 2010. For these reasons, the PCRA court
correctly concluded that Appellant‘s first allegation of ineffective assistance
of counsel lacks arguable merit.
We also agree with the PCRA court that this argument fails due to lack
of prejudice. The failure to mention the course of conduct element during
the guilty plea colloquy did not induce Appellant to plead guilty. Instead, the
record satisfies us that he pleaded guilty to avoid the danger of going to
trial. Proceeding to trial would have exposed Appellant to the risk of a guilty
verdict on 151 sexual offenses—a risk that would have been exacerbated by
the introduction of his five prior convictions for sexual offenses. By pleading
guilty to ten offenses, including one felony corruption count, Appellant
eliminated the risk of a potentially catastrophic sentence that might have
arisen from the verdict.
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In his second argument on appeal, Appellant maintains that defense
counsel was ineffective for failing to object to the criminal information‘s
failure to state the dates and locations of his offenses with sufficient
specificity. Appellant states that the information ―charges 151 separate and
distinct crimes which allegedly occurred between 2007 and 2013. Without
dates and locations, there was no way to tell whether or not it charged the
same crime in more than one count.‖ Appellant‘s Brief at 23. No relief is
due on this issue.
The information must ―fix the date when an alleged offense occurred
with reasonable certainty.‖ Commonwealth v. Jette, 818 A.2d 533, 535
(Pa. Super. 2003) (citation and quotation marks omitted). The purpose of
this requirement is to provide the defendant with sufficient notice to meet
the charges and prepare a defense. Commonwealth v. Gibbons, 784 A.2d
776, 780 n. 2 (Pa. 2001) (Saylor, J., concurring).
However, ―[d]ue process is not reducible to a
mathematical formula,‖ and the Commonwealth does not
always need to prove a specific date of an alleged crime.
Commonwealth v. Devlin, [] 333 A.2d 888, 892 ([Pa.]
1975) . . . Permissible leeway regarding the date
provided varies with, inter alia, the nature of the crime and
the rights of the accused. See Pa.R.Crim.P. 560(B)(3),
stating that it shall be sufficient for the Commonwealth to
provide in the information, if the precise date of an offense
is not known, an allegation that the offense was committed
on or about any date within the period fixed by the statute
of limitations.
Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super. 2006) (some
citations omitted). Moreover, ―the Commonwealth must be afforded broad
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latitude when attempting to fix the date of offenses which involve a
continuous course of criminal conduct.‖ Commonwealth v. G.D.M., Sr.,
926 A.2d 984, 990 (Pa. Super. 2007) (citations omitted). This is especially
true when the case involves sexual offenses against a child victim. Id.
Particularly illustrative in this regard is Commonwealth v. Niemetz, 422
A.2d 1369 (Pa. Super. 1980), in which the information alleged that the
defendant sexually abused the minor victim ―on (or about) divers[e] dates
beginning in 1972 and continuing until August[] 1977.‖ Id. at 1372. This
language, we held, was satisfactory because ―the Commonwealth was
unable to state the dates on which the offenses occurred with any more
specificity.‖ Id. at 1373 (quotation marks omitted). We reasoned that it
would be unfair ―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.‖ Id.
In this case, Appellant exposed himself to the minor victims multiple
times over a six-year period. Appellant himself admits that he knew the
victims and engaged in this misconduct against them six times at a camp in
Heath Township. Thus, as in Niemetz, it would be unjust to allow Appellant
to escape criminal liability for these acts merely because the minor victims
did not write down the dates of the incidents.
Appellant also insists that the information‘s alleged lack of specificity
violates his double jeopardy rights because ―without dates and locations,
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[the information] charged the same crime in more than one count,‖ and
therefore, Appellant could have been punished more than once for the same
crime. We agree with the PCRA court that this argument is speculative:
[T]he prejudice [Appellant] asserts is wholly theoretical. It
assumes that he will, at some future date, again face
criminal charges stemming from allegations that he
exposed his penis and masturbated in front of [the victims]
while taking walks with them between May 28, 2007 and
September 2, 2013. It assumes, moreover, that the
Commonwealth‘s failure to clarify that the incidents in this
case occurred ―at the family camp‖ in Heath Township,
Jefferson County and ―during Memorial Day weekends,
Labor Day weekends, and one Fourth of July weekend‖ will
make it difficult or impossible to ascertain whether the
subsequent charges violate the Double Jeopardy Clause.
Entirely speculative, though, this scenario cannot establish
prejudice.
PCRA Ct. Op. at 9.
Order affirmed. Jurisdiction relinquished.
P.J.E. Bender joins the Memorandum.
Judge Ott Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2017
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