Commonwealth v. LibengoodCommonwealth v. Libengood
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 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,
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 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 reviews
- Whether the trial court erred in dis-missing [Appellant‘s m]otion in [l]i-mine 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?
- 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 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
(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.
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
“To the extent practicable, [the Pennsylvania Rules of Criminal Procedure] shall be construed in consonance with the rules of statutory construction.”
In this context, the text of
Pennsylvania Rules of Criminal Procedure 572 and 579 both address the same class of things, i.e., motions filed by the defendant prior to trial. Thus, they must be read in pari materia. See
We next consider the object to be obtained in setting deadlines for the filing of motions by a defendant prior to trial. 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 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
Our interpretation of
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, 234 Pa.Super. 111, 338 A.2d 610 (1975). In Albanesi, this Court stated that if the defendant failed to file a motion within the time periods specified by
For all of these reasons, we hold that a defendant waives any objection to a bill of particulars furnished by the Commonwealth unless he or she files a timely motion under
In his second issue, Appellant argues that his sentence is illegal. “Issues relating to the legality of a sentence are
Appellant argues that he was sentenced to a mandatory minimum sentence pursuant to
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
In sum, we hold that a defendant waives any objection to a bill of particulars furnished by the Commonwealth when he or she fails to file a timely motion pursuant to Pennsylvania Rule of Criminal Procedure 572(C). In this case, Appellant failed to file a timely Rule 572(C) motion and, therefore, the trial court did not abuse its discretion by denying his motion in limine. Moreover, we conclude that the trial court did not impose a mandatory minimum sentence pursuant to
Judgment of sentence affirmed.
Notes
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.