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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.




                                        -2-
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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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