J-S23020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
                                        :
            v.                          :
                                        :
                                        :
ROBERT J. BOOTH, JR.                    :   No. 1773 EDA 2016

                Appeal from the Order Dated May 25, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005705-2015


BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                            FILED JULY 07, 2017

     Appellant, the Commonwealth of Pennsylvania, appeals from the order

of the Court of Common Pleas of Philadelphia County, entered on May 25,

2016, that dismissed the Commonwealth’s case against Appellee-Defendant

Robert J. Booth, Jr., on the basis of due process for pre-arrest delay. We

reverse and remand.

     The Complainant, J.M., alleges that, between 1988 and 1991, when

she was 8 to 11 years old, her uncle, Appellee, had unlawful sexual contact

with her. N.T., 6/4/15, at 13-15; Trial Ct. Op. at 1-3, 6. The alleged crimes

occurred primarily on school days between 3:30 P.M. and 8:00 P.M. in

Appellee’s second floor bedroom in the home of Complainant’s grandmother,

who is recently deceased.

     On August 22, 2014, the Complainant contacted law enforcement for

the first time. N.T., 3/23/16, at 24; Trial Ct. Op. at 1. On April 21, 2015,
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Appellee    was arrested and charged with involuntary deviant sexual

intercourse by forcible compulsion, aggravated indecent assault without

consent, and sexual assault.1

        A preliminary hearing was held on June 4, 2015, at which the

Complainant testified. She could not identify any living witnesses who were

in the house during any of the alleged incidents, could not recall any

particular time or date for the allegations of abuse, and did not testify as to

why she waited over two decades to report the alleged assaults.             N.T.,

6/4/15, at 13-15; Trial Ct. Op. at 2-3.

        On March 25, 2016, after a hearing, the trial court dismissed all

charges.     On May 25, 2016, the trial court heard and dismissed the

Commonwealth’s motion for reconsideration.

        The Commonwealth now raises the following issue on appeal:

        Did the lower court err by dismissing charges on the basis of due
        process for pre-arrest delay and lack of specificity where the
        relevant delay in reporting the offenses was not caused by the
        prosecution and the charges alleged a continuing course of
        criminal conduct against an eight-year-old child sex abuse
        victim?

Commonwealth’s Brief at 3.

        “[C]ourts should apply a standard of review that pays substantial

deference to the powers of the executive branch of government in deciding

when to file criminal charges.” Commonwealth v. Snyder, 713 A.2d 596,


1
    18 Pa.C.S. §§ 3123(a)(1), 3125(1), and 3124.1, respectively.



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605 (Pa. 1998) (internal quotation marks omitted). In determining whether

pre-arrest delay violates due process, the “inquiry must consider the reasons

for the delay and whether it resulted in actual prejudice to the accused.” Id.

at 604.      “[E]ven in the face of prejudice, delay is excusable if it is a

derivation of reasonable investigation. Thus, it is clear that any inquiry into

pre-arrest delay must be directed to both the existence of prejudice to the

defendant and to the cause of the delay.” Commonwealth v. Wright, 865

A.2d 894, 901 (Pa. Super. 2004) (per curiam) (emphasis omitted; citation

and internal quotation marks omitted), appeal denied, 885 A.2d 533 (Pa.

2005). A finding of either prong alone is insufficient; both prongs must be

established in order to conclude that a defendant’s due process rights have

been violated.    For the second prong, the defendant must show “that the

delay was an intentional device” used by the prosecution “to gain a tactical

advantage over the accused.”         Commonwealth v. Neff, 860 A.2d 1063,

1073 (Pa. Super. 2004) (citation omitted), appeal denied, 878 A.2d 863

(Pa. 2005); see also Snyder, 713 A.2d at 605 (at a minimum, a showing of

more than mere negligence in the conduct of a criminal investigation is

required).

      In the case before us, the Commonwealth argues that the two-prong

test was not satisfied. It states:

      Even assuming that [Appellee] was prejudiced by the delay in
      initiating criminal proceedings, due process is offended only
      where such delay is attributable to wrongful conduct on the part
      of the Commonwealth. Here, the Commonwealth promptly and


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     properly filed charges less than a year after the victim reported
     [Appellee]’s crimes to law enforcement for the first time. Nor
     was [Appellee] entitled to relief on the theory that the victim
     could not specify the dates of the ongoing sexual abuse she had
     suffered at his hands as a young child with greater particularity.
     The [trial court]’s order should be reversed and the case
     remanded for trial.

Commonwealth’s Brief at 7.

     The trial court’s opinion comprehensively discusses and properly

disposes of the first prong of the test to establish a due process claim for

pre-arrest delay under Snyder, 713 A.2d at 604 – i.e., prejudice:

     Due process of law requires that a defendant be advised of the
     dates of an alleged offense with some degree of particularity in
     order for him to be able to properly defend himself.
     Commonwealth v. Wilson, 825 A.2d 710, 715 ([Pa. Super.]
     2003) (citing Commonwealth v. Devlin, 333 A.2d 888, 890
     ([Pa.] 1975)). The Commonwealth need not definitely prove the
     dates laid in the indictment. Commonwealth v. Luktisch, 680
     A.2d 877[, 880] (Pa. Super. 1996). Rather, the standard is that
     the date of the offense be proved with “reasonable certainty.”
     Commonwealth v. Levy, 146 Pa. Super. 564, 23 A.2d 97, 99
     (1941). As noted by the Devlin court, where allegations lack a
     precise date and time, courts will consider many factors in light
     of all aspects of the case, including whether or not the failure to
     plead a precise date limits the ability of the defendant to present
     an alibi defense. Devlin, 333 A.2d 888 at 891. While it is true
     that a relaxed standard applies to cases of abuse against a
     minor, “any leeway permissible would vary with the nature of
     the crime and the age and condition of the victim, balanced
     against the rights of the accused.” Id. at 892.

     In the instant matter, the twenty-five year (25) delay in filing
     the charges against [Appellee] . . . provides grounds for
     dismissal of the charges as it renders [Appellee] unable to
     present a meaningful defense to the allegations. . . . [T]he
     Commonwealth gained an unfair tactical advantage against
     [Appellee] due to the lengthy passage of time and the loss of
     critical defense testimony through death and memory loss.
     Specifically, [Appellee] cannot produce witnesses who might


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      provide exculpatory testimony about his location at the date and
      time of each alleged incident, nor can he produce documents and
      records to corroborate work schedules, recreational activities,
      appearances at social events or proof of residency. He cannot
      call the only witness alleged by the [C]omplainant to have
      possibly been present at the scene of the alleged abuse as she is
      recently deceased. . . .

      Aggravating the prejudice against [Appellee], attributable to the
      extended delay in bringing these charges, is the fact that
      [Appellee] faces a three-year period of accountability [for the
      criminal acts of which he is accused]. Analyzing the Devlin
      factors along with all other aspects of the case, the
      Commonwealth’s failure to plead a precise date eliminates any
      potential alibi for the dates and/or times in question.
      Information to the effect that the crime was committed on any
      single weekday afternoon within a [three]-year period does not
      meet the “reasonable certainty” rule announced in Levy, as it
      prevents [Appellee] from any fair opportunity to discover
      evidence that would indicate his conduct on the days in question.

      A spread of dates that covers three years, combined with the
      allegation that is over twenty[] years old, significantly prejudices
      [Appellee] and causes an inadequate opportunity to defend.

Trial Ct. Op. at 5-6.

      The Commonwealth counters that Commonwealth v. Devlin, 333

A.2d 888 (Pa. 1975), is inapplicable to the current case because Devlin

involved “a single offense [that] was alleged to have occurred at some

wholly unspecified time during a fourteen month period.” Commonwealth’s

Brief at 12-13. Instead, the Commonwealth states that Commonwealth v.

Niemetz, 422 A.2d 1369 (Pa. Super. 1980), is controlling, because “a

different analysis must be employed where the perpetrator’s acts were

ongoing.” Commonwealth’s Brief at 13. The Commonwealth continues that

“it would not ‘serve the ends of justice to permit a person to rape or


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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. (quoting Niemetz, 422 A.2d at 1373).

       However, the trial court was not concerned only about Appellee

suffering prejudice due to the duration of the alleged abuse. See Trial Ct.

Op. at 5-6.    The trial court’s apprehension was based primarily on the

inexplicable “lengthy passage of time” from the end of the ongoing series of

alleged crimes in 1991 to the reporting of them in 2014.          Id. at 2, 5-6

(citing N.T., 6/4/15, at 13-15). Although the Complainant was still a minor

in 1991, she was in her mid-thirties by 2014.       Niemetz is distinguishable

from the current action because the victim in Niemetz reported her abuse a

few months after the last abusive act, once she had reached the safety of a

rape crisis center.   Here, the Complainant waited about two decades to

report the alleged crimes, which occurred after a “critical” witness (her

grandmother) had died, and she failed to proffer any reason for the delay,

such as regaining repressed memories. Id. at 2 (citing N.T., 6/4/15, at 13-

15).   Niemetz is inapposite and does not ameliorate the concerns about

prejudice. Thus, the trial court did not err in concluding that the first prong

of the test for a due process claim based on pre-arrest delay was satisfied,

as the delay caused Appellee prejudice for all of the reasons that the trial

court explained. See Snyder, 713 A.2d at 604.




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     However, a finding of prejudice alone is insufficient to hold that a

defendant’s due process rights were violated by any pre-arrest delay. See

Wright, 865 A.2d at 901. Here, the trial court failed separately to analyze

the second prong of the due process test — whether the delay was the fault

of the Commonwealth. To the extent that the trial court’s conclusions about

fault can be extrapolated from its analysis, we note that the trial court

stated that the “delay in filing the charges” was “through no fault of the

Commonwealth,” Trial Ct. Op. at 5 (emphasis added), but that, “[w]hether

done intentionally or not, the Commonwealth gained an unfair tactical

advantage against [Appellant] due to the lengthy passage of time and the

loss of critical defense testimony through death and memory loss.” Id. at 6.

Thus, the trial court did not find “that the delay was an intentional device”

employed by the Commonwealth, a required element of the due process

analysis. See Neff, 860 A.2d at 1074. Indeed, the trial court wrote that it

could not tell whether the delay was “done intentionally or not.”    Trial Ct.

Op. at 5. In the absence of a finding of intent, the Commonwealth cannot

have culpability. Neff, 860 A.2d at 1074; Snyder, 713 A.2d at 605.

     Because Appellee did not show “that the delay was an intentional

device” used by the prosecution, Neff, 860 A.2d at 1074, the second prong

of the due process test was not established.    Thus, we hold that the trial

court improperly dismissed the Commonwealth’s case against Appellee.

     Order reversed. Case remanded. Jurisdiction relinquished.



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         Judge Olson joins the memorandum.

         Judge Musmanno files a concurring statement in which Judge Olson

joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2017




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