Judges Opinions Public Notices, — October 31, 2019 11:09 — 0 Comments

Public Notices, October 30, 2019

Volume 57, No. 13

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

FICTICIOUS NAMES

ORPHAN’S COURT DIVISION NOTICES

 

TABLE OF CONTENTS

COMMONWEALTH OF PENNSYLVANIA V. RICHARD A. BARKER

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF JOYCE ARLENE RODKEY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

James M. Rodkey, Co-Executor

Duane T. Rodkey, Co-Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF DOROTHY A. SHELTON, late of the Borough of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert J. Shelton, Executor

67 Springhaven Court

Palmyra, PA 17078

 

Stanley A. Smith, Esquire

Barley Snyder

213 Market Street

12th Floor

Harrisburg, PA 17101

 

ESTATE OF ANITA M. SIMON, late of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Patricia K. Moyer, Executrix

6857 Old Route 22

Bethel, PA 19507

 

Robin S. Levengood, Esquire

1136 Penn Avenue

Wyomissing, PA 19610

 

ESTATE OF ESTHER S. YOUD, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Mary Ann Hoover, Co-Executrix

Dorcas G. Breckbill, Co-Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

 

ESTATE OF DOROTHY M. PURCELL, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Zabrina Marie Hart, Executrix

 

Matthew M. Karinch, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF MARGUERITE L. SHUTTER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Gina A. Wessner, Executrix

 

Harry W. Fenton, Esquire

809 Chestnut Street

Lebanon, PA 17042

 

SECOND PUBLICATION

 

ESTATE OF CRAIG D. SCHULZE, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administrator.

 

Chad A. Schulze, Administrator

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF ROBERT F. KLICK, a/k/a, ROBERT FRANCIS KLICK, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Agatha M. Klick, Executrix

28 Arbor Drive

Myerstown, PA 17067

 

Jonathan B. Batdorf, Esquire

317 East Lancaster Avenue

Shillington, PA 19607

 

ESTATE OF MARGUERITE L. SHUTTER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Gina A. Wessner, Executrix

 

Harry W. Fenton, Esquire

809 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF MARY WARNER, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Sharon Frederickson, Co-Executrix

 

Bruce Frederickson, Co-Executor

 

Melanie Walz Scaringi, Esquire

Scaringi Law

2000 Linglestown Road, Suite 106

Harrisburg, PA 17110

 

ESTATE OF CONSTANCE J. NACE, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Wendy J. Kozicki

685 Newberry Road

Middletown, PA 17057

 

John D. Enck, Esquire

Spitler, Kilgore, & Enck, PC

522 S. 8th Street

Lebanon, PA 17042

 

THIRD PUBLICATION

 

ESTATE OF BRYAN E. RITTLE, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Pamela J. Rittle, Administratrix

 

Mark W. Allshouse, Esquire

CHRISTIAN LAWYER SOLUTIONS, LLC

4833 Spring Road

Shermans Dale, PA 17090

 

ESTATE OF BERNICE C. BRANDT, late of the Borough of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Richard C. Clay

17 Katy Lane

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF MICHAEL EZELL, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Jack Ezell, Administrator

1908 Carlton Drive

Lebanon, PA 17042

 

Johnna J. Kopecky, Esquire

120 South Street

Harrisburg, PA 17101

 

ESTATE OF LUCILLE A. RUSSO, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Joel A. Russo, Executor

 

Hazen Law Group

2000 Linglestown Road

Suite 202

Harrisburg, PA 17110

 

ESTATE OF ALETHEA B. SHURSKIS a/k/a ALETHEA SHURSKIS, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathrine E. Mihalko, Executrix

206 Philips Drive

Myerstown, PA 17067

 

Edward J. Coyle

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF PAUL W. HIBSHMAN, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Jill H. Rogers, Executrix

401 Carlisle Avenue

Prospect Park, PA 19076

 

John D. Enck, Esquire

Spitler, Kilgore, & Enck, P.C.

522 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF E. PAUL WEAVER, III a/k/a ELMER PAUL WEAVER, III, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Miriam I. Weaver, Executrix

 

  1. Elvin Kraybill, Esquire

Gibbel, Kraybill & Hess, LLP

P.O. Box 5349

Lancaster, PA 17606

 

FICTICIOUS NAME NOTICES

NOTICES IS HEREBY GIVEN, pursuant to the provisions of the Fictitious Names Act of Pennsylvania (54 Pa.C.S. Section 301 et. Seq.), that an application for a registration of a Fictitious Name was filed with the Department of State of the Commonwealth of Pennsylvania, for the conduct of a business under the Fictitious Name of SSC3, with its principal office or place of business at 425 Awol Rd., Jonestown, PA 17038. The names and addresses of all entities who are parties to the registration are: Sterling Sports Cars III llc, 425 Awol Rd., Jonestown, PA 17038.

 NOTICE IS HEREBY GIVEN that, effective July 17, 2019, United Church of Christ of Christ Homes, Inc., 30 North 31st Street, Camp Hill, Cumberland County, Pennsylvania registered the name “UCC Home Care” by filing a Fictitious Name Registration under the Fictitious Names Act, 54 Pa.C.S. § 311(g) with the Pennsylvania Department of State in Harrisburg, Pennsylvania, for the conduct of business at its place of business situated at One Kindred Place, Annville, Lebanon County, Pennsylvania.

 

LATSHA DAVIS & MARSHALL, P.C.

1700 Bent Creek Boulevard, Suite 140

Mechanicsburg, PA 17050

 

 

NOTICE IS HEREBY GIVEN that, effective August 23, 2019, United Church of Christ of Christ Homes, Inc., 30 North 31st Street, Camp Hill, Cumberland County, Pennsylvania registered the name “UCC Home Health” by filing a Fictitious Name Registration under the Fictitious Names Act, 54 Pa.C.S. § 311(g) with the Pennsylvania Department of State in Harrisburg, Pennsylvania, for the conduct of business at its place of business situated at One Kindred Place, Annville, Lebanon County, Pennsylvania.

 

LATSHA DAVIS & MARSHALL, P.C.

1700 Bent Creek Boulevard, Suite 140

Mechanicsburg, PA 17050

 

 

ORPHAN’S COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

Orphans’ Court

Division Notices

 

Notice is hereby given that the following accounts in decedents estates,

Guardianships and trusts have been filed in the Office of the Register of

Wills and Clerk of Orphans’ Court of Lebanon County, and that the same

will be presented to the Court of Common Pleas-Orphans’ Court Division of

said County for Confirmation NISI on

 

Monday, November 4, 2019 AT 10:00 A.M.

In Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRUBUTION FILED BY EXECUTORS OR ADMINISTRATORS

 

  1. Kreider, Michael D., aka Kreider, Michael Dennis, Dec’d. Jason M. Kreider, Exr., John D. Enck, Atty.

 

FIRST AND FINAL ACCOUNTS WITH NO PROPOSED SCHEDULE OF DISTRIBUTION FILED BY EXECUTORS OR ADMINISTRATORS

 

  1. Bowman, Mary Ellen, Dec’d., Edward F. Krause, Exr., Paul W. Kilgore, Atty.

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed

ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are filed within twenty (20) days after the same are confirmed NISI.

 

 

BRIAN CRAIG

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

 

 

 

 

Commonwealth of Pennsylvania v. Richard A. Barker

 

Criminal Action-Law-Statutes of Limitations-Felony Offenses-Misdemeanor Offenses-Stacking of Statute of Limitations Amendments

 

On April 30, 2018, Defendant was charged with felony and misdemeanor offenses relating to alleged sexual abuse of two (2) child victims between the years 1986 and 1999. Defendant filed a Motion to Dismiss seeking dismissal of the charges on the basis that the charges were lodged after the applicable statutes of limitations had expired relating to all charges.

 

  1. Statutes of limitations are designed to effectuate the preservation of evidence, to protect the right of potential defendants to repose and to ensure administrative efficiency and convenience.

 

  1. For offenses committed prior to 1990, the applicable statute of limitations for the enumerated felony offenses required that a crime be charged within five (5) years of the date of the offense.

 

  1. Effective February 17, 1991, the statute of limitations for the enumerated offenses was extended to up to the period of limitation provided by law, or five (5) years, after a minor has reached eighteen (18) years of age.   Also under the amendment effective February 17, 1991, the statute of limitations for misdemeanor offenses required that a prosecution must be commenced within two (2) years of the date of the incident with extension of the statute for two (2) years after the victim attained age eighteen (18) if the victim was a minor at the time of the offense.

 

  1. The statute of limitations for the subject felony offenses further was extended by amendments in 2002 and 2007 for victims who were minors at the time of the offense until the victim attained has attained age fifty (50). The statute of limitations for misdemeanor offenses was not extended by the same amendments in 2002 and 2007 for victims who were minors at the time of the offenses.

 

  1. In Commonwealth v. Harvey, 542 A.2d 1027 (Pa.Super. 1988), the Pennsylvania Superior Court found that the statute of limitations changes effective February 17, 1991 extended the period to commence prosecution where a prior statute of limitations for prosecution of the offenses had not yet expired.

 

  1. The fact that applicable statute of limitations has been amended several times between the date of the felony offenses and the date of the lodging of charges will not preclude the application of the newer statute of limitations.

 

  1. The Commonwealth is permitted to stack statute of limitations amendments for purposes of commencing timely prosecution of Defendant in this case since each amendment was adopted prior to the expiration of the former statute of limitations that was in effect with regard to the felony charges.

 

  1. Since the 2002 and 2007 amendments did not extend the time for prosecution of misdemeanor offenses until the victims attained age fifty (50) and the misdemeanor charges were lodged in the cases more than two (2) years after the victims attained age eighteen (18), the charges are barred by the applicable statute of limitations.

 

L.C.C.C.P. No. CP-38-CR-0000817-2018, Opinion by Charles T. Jones, Jr., Judge, April 8, 2019.

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                       :

PENNSYLVANIA                                 :

:

  1.                                   :     Docket No.: CP-38-CR-817-2018

:

RICHARD A. BARKER,                        :

Defendant.                                              :

 

ORDER OF COURT

 

AND NOW, to wit, this 8th day of April, 2019, upon consideration of Defendant’s Motion to Dismiss, the materials submitted at the hearing on January 16, 2019, and the Briefs submitted by the parties, it is hereby ORDERED that said Motion is GRANTED in part and DENIED in part. The Court dismisses Counts 4 through 11 (the misdemeanors) of the Criminal Information. Felony Counts 1-3 remain viable for prosecution by the Commonwealth.

Defendant is directed to appear at the Call of the List scheduled for April 9, 2019 at 8:30 a.m. and for the Criminal Trial Term beginning on April 22, 2019 at 8:30 a.m. in the designated Courtroom.

 

BY THE COURT:

 

____________________________, J.

CHARLES T. JONES, JR.

 

 

 

cc:     Matthew S. Kopecki, Esquire

District Attorney’s Office (Megan E. Ryland-Tanner, Esquire)
Court Administration (Leslie Fillak)

Cynthia V. Lose-Morgan, Esq. (Law Clerk)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                       :

PENNSYLVANIA                                 :

:

  1.      :     Docket No.: CP-38-CR-817-2018

:

RICHARD A. BARKER,                        :

Defendant.                                              :

 

APPEARANCES:

 

Megan E. Ryland-Tanner, Esquire                               For Commonwealth

 

Matthew S. Kopecki, Esquire                                       For Defendant

 

 

OPINION BY JONES, JR., J.:

Before this Court is Defendant’s Motion to Dismiss for failure to bring timely prosecution. Defendant asserts that his Motion to Dismiss should be granted because the Commonwealth failed to prosecute Defendant prior to the exhaustion of the applicable statute of limitations.

 

  1. FACTUAL & PROCEDURAL HISTORY

The prosecution in this case began as a result of an investigation into sexual abuse allegations by multiple step-children of Defendant. See Exhibit 1. Defendant was born in 1953 and would have been between the ages of thirty-two and forty-six in August 1986 through 1999. See Magisterial Criminal Docket No. MJ-52303-CR-0000136-2018. The Defendant is alleged to have orally and digitally penetrated the genitals of L.V., a child less than sixteen years of age, as well as, causing L.V.’s mouth and/or lips to touch his penis. District Attorney’s Criminal Information. The Defendant is also alleged to have engaged in sexual contact and inappropriate touching with D.M. and L.V., both minors at the time. Id. Finally, the Defendant is alleged to have endangered the welfare of L.V. and D.M. by violating a duty of care, protection, or support by engaging in sexual contact and/or communications with his underage step-daughters. Id. The Criminal Information alleged that Defendant committed the aforementioned crimes on or about August 1986 through 1999 in Lebanon County, Pennsylvania. Id.

Defendant was charged on April 30, 2018 with the following:

Count 1: IDSI Person w/ Mental Disability, 18 Pa.C.S. §3123 §§A5 (F1);

Count 2: IDSI Person w/ Mental Disability, 18 Pa.C.S. §3123 §§A5 (F1);

Count 3: Agg. Ind. Assault-Comp. Suffers Mental Dis., 18 Pa.C.S. §3125 §§A6 (F2);

Count 4: Corruption of Minors, 18 Pa.C.S. §6301 §§A (M1);

Count 5: Corruption of Minors, 18 Pa.C.S. §6301 §§A (M1);

Count 6: Ind. Assault Person w/ Mental Disability, 18 Pa.C.S. §3126 §§A6 (M1);

Count 7: Ind. Assault Person w/ Mental Disability, 18 Pa.C.S. §3126 §§A6 (M1);

Count 8: Ind. Assault Person w/ Mental Disability, 18 Pa.C.S. §3126 §§A6 (M1);

Count 9: Ind. Assault Person w/ Mental Disability, 18 Pa.C.S. §3126 §§A6 (M1);

Count 10: Endangering Welfare of Children, 18 Pa.C.S. §4304 (M1); and

Count 11: Endangering Welfare of Children, 18 Pa.C.S. §4304 (M1).

On May 31, 2018, Defendant waived his Preliminary Hearing. On June 18, 2018 Defendant waived his Arraignment. After a series of continuances, Defendant filed his Motion to Dismiss on December 4, 2018. A Pre-Trial Hearing regarding Defendant’s Motion was scheduled for December 26, 2018, but then continued to January 16,2019. On January 16, 2019, in lieu of presenting factual testimony and evidence, the parties agreed to a stipulated submission of the first twelve pages of the police report (Exhibit 1). The parties also agreed and requested to file briefs. The briefing deadline was extended from February 15, 2019 until March 1, 2019. Concurrently, Defendant’s case was moved to the April Call of the List and Criminal Trial term. Both parties have submitted briefs regarding Defendant’s Motion to Dismiss. The matter is now ripe for review and disposition.

 

  1. DISCUSSION

Defendant’s Motion to Dismiss is properly before this Court for disposition pursuant to the Pennsylvania Criminal Rules of Procedure. Pa. R. C. P. Rule 578(5). Defendant was charged with three felonies and eight misdemeanors. The Statute of Limitations varies between felony and misdemeanor offenses. Thus, the analysis of this case will be bifurcated to undertake a proper analysis of the factual allegations and the timing of their occurrence to determine whether prosecution was timely commenced for both the felony and misdemeanor offenses in this case.

 

  1. Felony Offenses

Counts 1-3 of the Criminal Information are the felony offenses charged in this case. Count 1, Involuntary Deviate Sexual Intercourse, alleges that the Defendant did touch his mouth or tongue to L.V.’s genitals while she was under sixteen years of age. Count 2, Involuntary Deviate Sexual Intercourse, alleges that the Defendant had L.V. touch his penis with her mouth and/or lips while being a person less than sixteen years of age. Count 3, Aggravated Indecent Assault alleges that the Defendant digitally penetrated L.V.’s genitals while she was under fourteen years of age, and the Defendant at the time was a person older than eighteen years of age.

Exhibit 1, the Pennsylvania State Police Incident Report places the date of these three offenses roughly between May 26, 1989-1991 when L.V. was six and seven years old. Exhibit 1, Pages 4-6. Prior to 1990, the applicable Statute of Limitations for the enumerated felony offenses required that the crime be charged within five years of the date of the offense. 42 Pa.C.S. §5552 (Act 199 of 1984). Effective February 17, 1991, the statute of limitations was modified and extended for victims who were under the age of eighteen at the time the crime was committed. The 1990 Statute of Limitations Amendment[1] extended the statute of limitations “up to the period of limitation provided by law after the minor has reached eighteen years of age.” 42 Pa.C.S. §5552 (Act 208 of 1990). Thus, prosecution of crimes alleged to have been committed against L.V. after February, 17, 1991 would be tolled until L.V. reached the age of eighteen on May 26, 2001, and then would expire five years after her eighteenth birthday on May 26, 2006. Determining whether the alleged criminal acts would have occurred on or before the 1990 modification to 42 Pa.C.S. §5552 is not possible with the evidence provided at this time. However, the Court finds this indetermination of no consequence in light of Commonwealth v. Harvey.[2]

The Pennsylvania Superior Court in Commonwealth v. Harvey addressed the issue of prosecuting a case where the alleged offense occurred prior to enactment of a lengthier statute of limitation amendment, but prior to, the expiration of the previous statute of limitation governing the offense. In Harvey, the defendant was charged and convicted of rape. Commonwealth v. Harvey, supra, at 1027. At the time the offense occurred, the statute of limitations in effect provided for a two-year limitation. Id. at 1028. The defendant raped his girlfriend’s daughter beginning in 1976 and ending in May or July of 1981 when the victim was eleven years old. Id. At the time the offenses occurred, there was a two-year statute of limitations for the offense of rape which would require prosecution to commence no later than July, 1983. Id. Prior to the expiration of this time period the statute of limitations was lengthened by amendment to five years, effective July 1982. Id. Charges were brought against Harvey in May, 1984, after the two-year period had expired, but still within the five-year period provided by the modified statute. Id.

Harvey appealed arguing that the prosecution was barred by the two-year statute of limitations for rape in effect when the rape occurred despite the enactment of the five-year statute of limitations prior to expiration of the two-year statute. Id. Defendant argued the 1982 Statute of Limitations Amendment was improperly applied retroactively in his case. Id. at 1028-29. The Superior Court disagreed. Id. at 1031. The Superior Court spent a significant amount of time interpreting the intention of the legislature as it related to the statute and subsequent 1982 Statute of Limitations Amendment, and found that the same was prospective in nature. The Statute with the new five-year limitation was not retroactive because it did not serve to “revive” time barred cases, but rather extended the period to commence prosecution where a prior two-year period for prosecution had not yet expired. Id. at 1029-31.

 

Applied instantly, the sexual abuse is alleged to have occurred when L.V. was six and seven, between May 1989 and May 1991 and the two-year period for the statute of limitations had not yet expired prior to enactment of the 1990 Statute of Limitation Amendment thus extending the period for commencement of prosecution until May 26, 2006, five years after L.V. turned eighteen years old.

Prosecution was not commenced in the case sub judice until April 30, 2018 when charges were filed, nearly twelve years after the statute of limitations would have run per the 1990 Statute of Limitations Amendment to 42 Pa.C.S. §5552. Importantly, two statute of limitations amendments, in 2002 and 2007, extended the statute of limitations for victims, who were minors at the time of the offense, until the victim turned fifty years old. The Defendant argues that the statute of limitations cannot be extended over several amendments. Defendant’s March 4, 2019 Brief, 3-5. Further, that the statute of limitations was triggered when L.V. turned eighteen and cannot be extended. Id. at 5-6. The Commonwealth responds that there is no prohibition to stacking the amendments and the Commonwealth has until the victim turns fifty years old to file the charges. Commonwealth’s March 1, 2019 Brief, 4.

Defendant argues that there is no legal authority to permit extension of the statute of limitations over several amendments. Further, Harvey involved the extension of the statute of limitations over one amendment, which extended the time for prosecution from two to five years. Defendant’s March 4, 2019 Brief, 4. (emphasis in the original). Defendant suggests to allow the stacking of amendments would deprive him of his right and ability to present a viable defense, and such would be in violation of the purposes of a statute of limitations. Id. at 4-5. Moreover, that stacking in the instant matter would force Defendant to defend against claims that are thirty years old, not two or three years old as was the case in Harvey. Id. at 5. Finally, the Defendant asks the Court to consider that the Harvey Court was not required to address the issue of preservation of evidence or an individual’s ability to adequately defend themselves from allegations that are decades old as is the case instantly. Id.

The Court will first address Defendant’s contention that to allow prosecution for the sexual abuse alleged to have occurred between May 1989 and May 1991 (twenty-seven to twenty-nine years ago) would violate the purpose of the statute of limitations and unfairly require Defendant to defend against the action. As the Defendant submits, our Courts recognize that the Statute of Limitations:

requires aggrieved individuals to bring their claims within a certain time of the injury, so that the passage of time does not damage the defendant’s ability to adequately defend against claims made … the statute of limitations supplies the place of evidence lost or impaired by lapse of time, by raising a presumption which renders proof unnecessary. Statutes of limitations are designed to effectuate three purposes: (1) preservation of evidence; (2) the right of potential defendants to repose; and (3) administrative efficiency and convenience. Meehan v. Archdiocese of Phil., 870 A.2d 912, 919 (Pa. Super 2005)(internal citations omitted).

Defendant’s March 4, 2019 Brief, 4.

 

The Commonwealth asks this Court to consider Commonwealth v. Louden[3] which began as a Lebanon County case that resulted in appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court considered the Pennsylvania Legislature’s decision to allow a greater reporting period for those victims who were minors at the time of the sexual abuse and commented:

It is inherent in cases where sexual abuse of a child is at issue that the victim may be reluctant to bring charges, may be prevented from bringing charges by an abusive parent or guardian, or may be unable to articulate the circumstances surrounding the abuse in the same manner that would be expected of an adult victim. Our legislature has addressed these concerns unique to child sexual abuse cases by, among other measures, tolling the limitations period for prosecution of these crimes until the child reaches eighteen years of age, see 42 Pa.C.S. §5552(c)(3). Underlying this legislative effort is the recognition that prosecution of child sexual abuse charges frequently involves problems with the victim’s memory or ability to communicate details of the abuse coherently at trial. Commonwealth v. Louden, supra, at 1185.

Commonwealth’s March 1, 2019 Brief, 2-3.

The Court finds Defendant’s argument instantly incongruent with the express language of 42 Pa.C.S. §5552 (West 2019). Exception (c)(3) under Section 5552 of the Judiciary and Judicial Procedure Code states, “[A] prosecution may [] be commenced for: Any sexual offense committed against a minor who is less than eighteen years of age any time up to the later of the period of limitation provided by law after the minor has reached eighteen years of age or the date the minor reaches fifty years of age.” 42 Pa.C.S. §5552(c)(3). Thus, in the unfortunate, but likely event that a person commits a sexual offense against a child on the eve of their eighteenth birthday, said individual is subject to prosecution for his or her crime until the victim turns fifty, a time amounting to thirty-two years plus a day. This timeframe exceeds the timeframe for the alleged enumerated felony offenses in this case, by three to five years. In conclusion, Defendant’s argument that the time period involved if the stacking of amendments is permitted is unavailing.

The Court now addresses Defendant’s contention that the Commonwealth is not permitted to stack more than one statute of limitations amendment; and in the alternative, even if the Commonwealth is permitted to stack amendments the 2007 Statute of Limitations Amendment should not be stacked because L.V. turned eighteen on May 26, 2001 and the five-year statute of limitations would have run on May 26, 2006 prior to the January 29, 2007 Statute of Limitations Amendment. Counsel for Defendant was candid that he was unable to find any case law that addressed the counting of time for purposes of the statute of limitations in a case such as this, and believes this case is one of first impression. Defendant’s March 4, 2019 Brief, 6. The Commonwealth did not submit a Reply Brief addressing Defendant’s argument that because L.V. was older than eighteen at the time of the 2002 and 2007 Statute of Limitations Amendments she should be considered an adult for the purposes of counting time and was only entitled to the twelve year statute of limitations extension provided by the 2002 Statute of Limitations Amendment. The Commonwealth hangs its hat on Harvey and the fact that L.V. was a minor at the time of the alleged sexual abuse.

This Court finds the Pennsylvania Superior Court case of A.S. v. Kane[4] instructive on the question presented above. On October 6, 2014, A.S. filed a Private Criminal Complaint asserting he was the victim of criminal offenses (including Involuntary Deviate Sexual Intercourse and Sexual Assault) committed by Gerald A. Sandusky, a public employee. A.S. v. Kane, supra, at 1168. After review, the Office of the Attorney General denied the Complaint on the basis that the statute of limitations for bringing the alleged charges had passed. Id. at 1169. It was the opinion of the Attorney General that the public employee exception, would have to be applied twice, and “that type of stacking appears to be prohibited by the statute as written.” Id. The trial court found that A.S.’s cause of action was not time barred, and overruled the denial of A.S.’s Private Criminal Complaint. Id. The Office of the Attorney General appealed. Id.

The Pennsylvania Superior Court undertook the analysis of whether the applicable statute of limitations, which had been amended several times between the date the offenses allegedly occurred and the date A.S. brought the Private Criminal Complaint, when applied, would permit A.S.’s Complaint. Id. The willingness of the Superior Court to apply multiple amendments to the timeline of facts in the A.S. v. Kane case is supportive of the Commonwealth’s argument that there is no prohibition on stacking, and the same is consistent with the holding in Harvey.

In the A.S v. Kane case, the criminal activity was alleged to have occurred in June of 1988. Id. at 170. At the time, A.S. would have been sixteen years old,[5] and the statute of limitations required the prosecution to commence within five years from the date of the offense.[6] Accordingly, the statute of limitations would have expired on June 30, 1993. Id. Prior to this date, on February 19, 1991, as discussed above, the statute of limitations was amended to provide that prosecution must be commenced within five years from the date of the victim’s eighteenth birthday.[7] At the time Section 5552 was amended by Act 208 of 1990, the statute of limitations under Act 199 of 1984 had not expired. “Accordingly, [A.S.] was entitled to the newer statute of limitations. Harvey, 542 A.2d at 1029-1030.” Id. at 1170. The statute of limitations would expire on December 26, 1994, five years after A.S.’s eighteenth birthday. Id. However, due to the public-employee exception, that mechanical run date could be extended eight years[8] placing expiration of the statute of limitations at December 26, 2002.[9] Id. Act 86 of 2002, on August 22, 2002, extended the statute of limitations to the victim’s thirtieth birthday. Id. Importantly, the Superior Court opined, “Because the statute of limitations under Act 208 of 1990 had still not expired as of the effective date of Act 86 of 2002, the mechanical run date became December 26, 2001, [A.S.’s] thirtieth birthday.”[10] Id. We find the Superior Court’s decision to stack two statute of limitations amendments (the 1990 and 2002 Amendments) in its analysis of whether A.S.’s Private Criminal Complaint was timely dispositive to the question currently presented. Thus, this Court holds that the Commonwealth in this case is permitted to stack the Act 208 of 1990, Act 86 of 2002, and Act 179 of 2006 Statute of Limitation Amendments for purposes of commencing timely prosecution of Defendant since at the time each amendment was adopted the prior statute of limitations period has not yet expired.

The A.S. v. Kane also guides our analysis of how time is counted for purposes of the statute of limitations. It remains Defendant’s contention that once L.V. turned eighteen years of age any stacking of amendments would only entitle her to the adult statute of limitations period, and not the lengthier period as provided in the exception for minor victims. Our review of the A.S. v. Kane case shows that the Superior Court permitted A.S. to reap the benefit of the exception for minor victims twice after turning eighteen years old. Thus, Defendant’s argument does not avail him of relief when analyzed consistent with the Pennsylvania Superior Court’s holding in A.S. v. Kane.

Here, the Defendant concedes the Commonwealth was permitted to utilize the 1990 Statute of Limitations Amendment to extend the period for commencement of prosecution until May 26, 2006, five years after L.V. turned eighteen years old consistent with Harvey. This Court finds that prior to the expiration of the statute of the statute of limitations on May 26, 2006, the Act 86 of 2002 Amendment extended the statute of limitations until L.V.’s thirtieth birthday which would be May 26, 2013. Prior to the mechanical run date of May 26, 2013, the Act 179 of 2006 Amendment extended the statute of limitations until a minor victim’s fiftieth birthday. Thus, noting that the prior period had not yet expired, this Court holds that prosecution in this case can be commenced at any time up until May 26, 2033.

This interpretation is in accord with the rule of construction codified in 1 Pa.C.S. §1975. Section 1975 applies specifically to statute of limitation, unlike the rule of construction codified at 1 Pa.C.S. §1926 and relied upon by the court in Baysore. It provides that when a new period of limitations is enacted, and the prior period of limitations has not yet expired, in the absence of language in the statute to the contrary, the period of time accruing under the prior statute of limitations shall be applied to calculation of the new period of limitations. Applying §1975 to the present case simply means that the time from when the rape occurred in May or July, 1981, until [the 1982 Statute of Limitations Amendment] became effective in July 1982, shall be included in computing the five-year period in which the action had to be commenced. Nowhere does §1975 suggest that this provision for tacking on time accrued under a prior period of limitations should be considered as a retroactive application of a new statute of limitations.

Commonwealth v. Harvey, supra, at 1029-30.

 

We conclude the Commonwealth is permitted to stack the multiple statute of limitations amendments, and Defendant’s Motion to Dismiss the felony offenses in this case is denied.

 

  1. Misdemeanor Offenses

The same arguments regarding statute of limitations apply to the misdemeanor charges in this case. There are two alleged victims in this case, L.V. and her sister D.M. Since the two sisters are not twins, born on the same day, the enumerated misdemeanor charges must be separated for proper analysis.

 

  1.    L.V. born May 26, 1983.

Counts 4, 6, 7, and 10 apply to sexual abuse allegedly perpetrated against L.V.[11] Though the enumerated offenses vary, they are given the same treatment under the statute of limitations, thus, will be analyzed together. The Criminal Information states that the time period for these events runs from August of 1986 until 1999. Utilizing the latest date, 1999, the 1990 Statute of Limitations Amendment applied, which stated that a prosecution must be commenced within two years of the date of the incident. 42 Pa.C.S. §5552 (Act 208 of 1990). However, the same statute of limitations provided that if the victim was a minor then the statute of limitations would begin to run at the age of eighteen. Thus, L.V. would have two years after turning eighteen to report the offenses. Id. The mechanical run date for the statute of limitations for these offenses as it relates to L.V. would thus be extended to May 26, 2003, two years after L.V.’s eighteenth birthday. The statute of limitations was amended by Act 86 of 2002, but those amendments do not affect the statute of limitations as it relates to: Corruption of Minors, Indecent Assault, and Endangering the Welfare of Children as the same are not considered “Major Sexual Offenses” pursuant to 42 Pa.C.S. §5552(b.1). Prosecution in this case commenced on April 30, 2018; nearly fifteen years after the statute of limitations had expired.

The Court finds that the Commonwealth did not timely commence prosecution, not because of any delay on its part, but because the allegations were not brought to the District Attorney until after the statute of limitations time barred prosecution. Thus, Defendant’s Motion to Dismiss for failure to timely commence prosecution is granted as it relates to Counts 4, 6, 7, and 10 of the Criminal Information in this case.

 

  1. D.M. born August 10, 1981.

Counts 5, 8, 9, and 11 apply to sexual abuse allegedly perpetrated against D.M.[12] Though the enumerated offenses vary, they are given the same treatment under the statute of limitations, thus, will be analyzed together. The Criminal Information states that the time period for these events runs from August of 1986 until 1999. Utilizing the latest date, 1999, the 1990 Statute of Limitations Amendment applied, which stated that a prosecution must be commenced within two years of the date of the incident. 42 Pa.C.S. §5552 (Act 208 of 1990). However, the same statute of limitations provided that if the victim was a minor then the statute of limitations would begin to run at the age of eighteen. Thus, D.M. would have two years after turning eighteen to report the offenses. Id. The mechanical run date for the statute of limitations for these offenses as it relates to D.M. would thus be extended to August 10, 2001, two years after D.M.’s eighteenth birthday. As mentioned the statute of limitations was amended by Act 86 of 2002, but those amendments do not affect the statute of limitations as it relates the misdemeanor counts charged. Prosecution in this case commenced on April 30, 2018; nearly seventeen years after the statute of limitations had expired.

The Court finds that the Commonwealth did not timely commence prosecution, not because of any delay on its part, but because the allegations were not brought to the District Attorney until after the statute of limitations time barred prosecution. Thus, Defendant’s Motion to Dismiss for failure to timely commence prosecution is granted as it relates to Counts 5, 8, 9, and 11 of the Criminal Information in this case.

 

  • CONCLUSION

For the reasons set forth above, this Court denies in part and grants in part Defendant’s Motion to Dismiss. Defendant’s Motion to Dismiss the felony offenses in this case is denied. Defendant’s Motion to Dismiss the misdemeanor offenses in this case is granted. Counts 4, 5, 6, 7, 8, 9, 10, and 11 shall be quashed and stricken from the Criminal Information. A concomitant Order shall be entered consistent with the foregoing.

 

[1] Statute passed on December 19, 1990, but became effective sixty days later on February 17, 1991.

[2] Commonwealth v. Harvey, 542 A.2d 1027 (Pa. Super. 1988)(en banc).

[3] Commonwealth v. Louden, 803 A.2d 1181, (Pa. 2002).

[4] A.S. v. Kane, 145 A.3d 1167 (Pa. Super. 2016).

[5] A.S.’s date of birth is December 26, 1971.

[6] 42 Pa.C.S. §5552 (Act 199 of 1984).

[7] 42 Pa.C.S. §5552 (Act 208 of 1990).

[8] “Any offense committed by a public officer or employee in the course of or in connection with his office or employment at any time when the defendant is in public office or employment or within five years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than eight years.” 42 Pa.C.S. §5552 (Act 208 of 1990).

[9] Gerald A. Sandusky was a public employee in 1994 triggering the public-employee exception. A.S. v. Kane, supra, at 1170.

[10] Ultimately the Superior Court found that A.S.’s Private Criminal Complaint was time barred. Under the Act 86 of 2002 Amendment the latest a claim could have been brought by A.S. was his thirtieth birthday on December 26, 2001 or within five years of his termination of public employment resulting in a run date at the latest of December 29, 2004. A.S. v. Kane, supra, at 1170-71. The express language of 42 Pa.C.S. §5552 prohibits extension of the statute of limitations more than eight years. “[B]ut in no case shall this paragraph extend the period of limitation otherwise applicable by more than eight years.” 42 Pa.C.S. §5552 (Act 208 of 1990). A.S. had used the public employee exception to its fullest extent (eight years) to overcome the statute of limitations expiration concern when Act 86 of 2002 was implemented as he could no longer utilize the minor exception provision alone as he turned thirty years old on December 26, 2001. In a companion case, the Pennsylvania Commonwealth Court concluded that Mr. Sandusky retired at the latest on December 29, 1999. A.S. v. Kane, supra, at 1171. Based on Mr. Sandusky’s retirement date and A.S.’s previous use of the maximum eight year public-employee exception the statute of limitations could only be extended an additional five years from the date of said retirement, expiring on December 29, 2004. The 2004 date falls short of the Act 179 of 2006 Statute of Limitations Amendment extending the statute of limitations to the victim’s fiftieth birthday. The Superior Court would determine that A.S. was not entitled to the benefit of Act 179 of 2006 because the time in which A.S. could have brought his claims had expired prior to the effective date of Act 179 of 2006 on January 29, 2007. Id. The Superior Court allowed stacking of the public-employee exception and the minor victim exception, but abided by the express language that would only permit an additional five-year period for the public-employee exception.

 

[11] Counts 4, 6, 7, and 10 include a count for Corruption of Minors, two counts for Indecent Assault, and one count for Endangering the Welfare of Children.

[12] Counts 5, 8, 9, and 11 include a count for Corruption of Minors, two counts for Indecent Assault, and one count for Endangering the Welfare of Children.

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