J-A04034-18

                             2018 PA Super 184



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                    v.

GRAHAM B. SPANIER

                         Appellant                   No. 1093 MDA 2017


            Appeal from the Judgment of Sentence June 2, 2017
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0003615-2013


BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

DISSENTING OPINION BY RANSOM, J.:                     FILED JUNE 26, 2018

      I respectfully dissent from the Majority opinion affirming Appellant’s

conviction. In my view, the Commonwealth violated Appellant’s due process

rights when it failed to inform him of its intent to rely upon an exception to

the statute of limitations at a reasonable time before trial. Moreover, in my

view, this issue is dispositive.     Accordingly, I would reverse Appellant’s

conviction and vacate his judgment of sentence.

      The Majority Opinion aptly disposes of the facts and procedural history

in this case.   However, I would emphasize that, in its Pa.R.A.P. 1925(a)

opinion, the trial court reasoned that the statute of limitations was tolled by




* Retired Senior Judge Assigned to the Superior Court.
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the exception outlined in 42 Pa.C.S. § 5552(c)(3). This marks the first, and

only, mention of the exception at the trial court level.1 See TCO at 9-10.

       Most of Appellant’s claims aver that the court erred in denying his post-

sentence      motion      for    a    judgment   of   acquittal.      “A   motion

for judgment of acquittal challenges the sufficiency of the evidence to sustain

a conviction on a particular charge, and is granted only in cases in which the

Commonwealth has failed to carry its burden regarding that charge.”

Commonwealth v. Foster, 33 A.3d 632, 635 (Pa. Super. 2011).

       First, Appellant claims that the court erred in denying his motion for a

judgment of acquittal on the child endangerment charge.            See Appellant’s

Brief at 28.       According to Appellant, the prosecution, commenced on

November 1, 2012, was not brought within the two-year statute of limitations

applicable for endangering the welfare of children. See Appellant’s Brief at

28-29. Essentially, he raises two arguments: first, that there was no course

of conduct because silence is not a course of conduct, and the jury rejected

this argument;2 and second, that the Commonwealth has waived any
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1 This section provides that, “Any sexual offense committed against a minor
who is less than 18 years of age any time up to the later of the period of
limitation provided by law after the minor has reached 18 years of age or the
date the minor reaches 50 years of age. As used in this paragraph, the term
‘sexual offense’ means a crime under the following provisions of Title 18
(relating to crimes and offenses).” See 42 Pa.C.S. § 5552(c)(3). Endangering
the welfare of a child is one of the enumerated sexual offenses. Id.

2 The question regarding course of conduct was posed to the jury as a question
to determine grading. Pursuant to the statute, the offense is a misdemeanor



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consideration of the exception provided by 42 Pa.C.S. § 5552(c)(3) by not

raising this issue prior to trial. Id. at 28-29, 32-40.

       With regard to Appellant’s first argument, he contends that 1) silence

alone cannot constitute a course of conduct, so the statute of limitations was

never tolled, and 2) that the Commonwealth has not presented any evidence

that Appellant owed the children in question a duty of care, or had a

relationship requiring that he owe such a duty in 2001.3 See Appellant’s Brief

at 28, 31 (citing in support Commonwealth v. Popow, 844 A.2d 13, 17 (Pa.

Super. 2004).

       In response, the Commonwealth contends that Appellant’s conviction

was a crime of nonfeasance.           See Commonwealth’s Brief at 14-15.   The

Commonwealth responds that Appellant’s “one action” of failing to inform the

Department of Welfare or the police of Sandusky’s actions created an ongoing

danger to children encountered by Sandusky, and that this failure to report


____________________________________________


of the first degree unless the actor engaged in a course of conduct of
endangering the welfare of a child, which would result in grading the offense
as a felony of the third degree. See 18 Pa.C.S. § 4304(b)(1)(ii). The jury
determined that Appellant had not engaged in a course of conduct such that
the offense would be graded as a felony.

Additionally, 42 Pa.C.S. § 5552(d) provides an exception to the statute of
limitations by stating that an offense is committed either whenever every
element occurs, or if there is a legislative purpose to prohibit a continuing
course of conduct, then the offense is committed at the time when the course
of conduct is terminated. See 42 Pa.C.S. § 5552(d).

3In so doing, Appellant references subsequent sections of his argument. See
Appellant’s Brief at 31.

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was a violation of Appellant’s duty of care.            Id. (citing in support

Commonwealth v. Stitt, 947 A.2d 195 (Pa. Super. 2008) (finding that two-

year limitations period was never triggered due to defendant’s continuing

violation of failing to register as a sex offender)).   Thus, according to the

Commonwealth, Appellant’s ongoing inaction of failing to report Sandusky’s

actions constituted a course of conduct, and the limitations period did not

terminate until Sandusky’s arrest. Id. Further, the Commonwealth avers that

it appropriately informed Appellant of its intent to toll the statute in such a

manner in the criminal information. Id.

      With regard to the application of the statute of limitations,

      [this] is a question of law. Thus, our standard of review is de
      novo and scope of review is plenary. Statutes of limitations are
      of course liberally construed in favor of the defendant and against
      the Commonwealth.

Commonwealth v. Succi, 173 A.3d 269, 279 (Pa. Super. 2017), reargument

denied (Dec. 12, 2017) (internal citations and quotations omitted).

      A statute of limitations defense is properly raised prior to trial in an

omnibus motion to dismiss the charges. See Commonwealth v. Corban

Corp., 909 A.2d 406, 411 (Pa. Super. 2006). The Commonwealth bears the

burden of establishing that a crime as charged was committed within the

applicable limitations period. Id.

      A prosecution for endangering the welfare of children must be

commenced within two years after it is committed. See 42 Pa.C.S. § 5552(a).

Except as otherwise provided by the general rules, a prosecution is


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commenced either “when an indictment is found or an information under

section 8931(b) (relating to indictment and information) is issued, or when a

warrant, summons or citation is issued, if such warrant, summons or citation

is executed without unreasonable delay.” See 42 Pa.C.S. § 5552(e). The

limitations period normally begins to run on the day after every element of a

charge occurs. See 42 Pa.C.S. § 5552(d). However, “if a legislative purpose

to prohibit a continuing course of conduct plainly appears, at the time when

the course of conduct or the complicity of the defendant therein is terminated,

time] starts to run on the day after the offense is committed.” Id.

      In this case, the EWOC statute reflects a legislative purpose to prohibit

a continuing course of conduct as it places a heavier penalty upon such an

offense.   The statute provides that a defendant engaging in a course of

conduct, as opposed to a single instance of the crime, commits a felony of the

third degree rather than a misdemeanor of the first degree, and is accordingly

subject to a longer term of incarceration. See 18 Pa.C.S. § 4304(b)(1)(i)-(ii).

Accordingly, the statute would run on the date that the conduct or complicity

of the defendant ends. Thus, I must determine whether Appellant’s inaction

was actionable in 2011, when charges were filed against him.

      To convict a defendant of EWOC, the Commonwealth must prove beyond

a reasonable doubt that “[a] parent, guardian or other person supervising the

welfare of a child under 18 years of age, or a person that employs or

supervises such a person . . . knowingly endanger[ed] the welfare of the child

by violating a duty of care, protection or support.” 18 Pa.C.S. § 4304(a).

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      I will first address whether Appellant owed a duty of care to the children.

The exact nature of this duty is malleable. The comments to 18 Pa.C.S. §

4304 note that the section “consolidates and simplifies the various provisions

concerning crimes endangering the welfare of children. The offense involves

the endangering of the physical or moral welfare of a child by an act or

omission in violation of legal duty even though such legal duty does not itself

carry a criminal sanction.” See 18 Pa.C.S. § 4304 cmt. Pennsylvania courts

have held that the Commonwealth must prove that the defendant: 1) was

aware of his duty to protect the child; 2) was aware that the child was in

circumstances that could threaten the child’s physical or psychological

welfare; and 3) has either failed to act or has taken action so lame or meager

that such actions cannot reasonably be expected to protect the child’s welfare.

See Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997).

      Appellant relies largely upon Commonwealth v. Taylor, 471 A.2d

1228 (Pa. Super. 1984), to argue that he did not owe a duty of care to the

child victim in this case. See Appellant’s Brief at 40-41. He claims that Taylor

held that 1) the duty cannot be the duty owed by all citizens to one another

or that a stranger may owe a minor child, and 2) the duty must arise from

contractual obligation, settled principles of tort or family law, or from other

legal sources. Id. at 41. However, this is an inaccurate statement of the law:

Taylor does not support Appellant’s claims.

      In Taylor, a father drove drunk with his minor daughter and her friend

in the car. Id. at 1229. Later that night, still drunk, he took both girls to a

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motel room, where he made sexual advances towards them and choked them.

Id.   The panel examined the relevant law regarding the duty of care,

examining the Model Penal Code and noting that such a duty need not be

stated in the code, but may arise from contractual obligations, settled

principals of tort or family law, or other legal sources.       Id. at 1230-31

(emphasis added). Further, the court reiterated that the “common sense of

the community, as well as the sense of decency, propriety and the morality

which most people entertain is sufficient to apply the statute to each particular

case, and to individuate what particular conduct is rendered criminal by it.”

Id. at 1231.

      Ultimately, this Court found that the evidence was sufficient to permit a

jury to find that the defendant had violated a duty owed to children in his

custody. Id. at 1231. However, the panel granted the defendant a new trial

because the court had permitted a conviction based on a theory of criminal

liability which had never been alleged by the Commonwealth or substantiated

by proof. Id. at 1231-32. Accordingly, Taylor did not hold that the duty

must arise from the enumerated sources, but merely noted that the duty may

arise from those sources, and “others.” Id. at 1230-31. Additionally, I find

it of import to note that the court reiterated the common sense of the

community is sufficient to apply the statute to individual cases. Id.

      Other statutes are helpful in examining whether a duty was owed. In

our view, the duty in the instant case is comparable to that imposed by the

statutory provisions criminalizing the failure to report child abuse. As noted,

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supra, the Commonwealth’s contention is that Appellant’s failure to report the

sexual abuse of children on his campus to the police or the Department of

Welfare was a violation of his duty of care.    The Domestic Relations Code

provides that a school employee must report suspected child abuse if the

person has reasonable cause to suspect that a child is a victim of child abuse.

See 23 Pa.C.S. § 6311(a).       The statute penalizes the failure to report

suspected child abuse or make a referral to the appropriate authorities if the

person or official willfully fails to do so. See 23 Pa.C.S. § 6319. Further, the

offense is graded as a felony where the person or official 1) willfully fails to

report, or 2) has direct knowledge of the nature of the abuse.              Id.

Additionally, any person is encouraged to report suspected child abuse if that

person has reasonable cause to suspect that a child is a victim of child abuse.

See 23 Pa.C.S. § 6312 (emphasis added). The statute imposes an affirmative

duty to report such cases on mandated reporters, and encourages the

affirmative duty in cases of those who are not mandated reporters.            It

punishes the lack of action or willful failure to report in those who are

mandated reporters.

      Here, the common sense of the community and an individual sense of

decency and morality would compel any reasonable person, but particularly a

school official, to recognize and accept an affirmative duty, in a case of

credible allegations of child abuse, to report the incident to the Department of

Welfare or the police. This, Appellant did not do. Accordingly, he violated a

duty of care owed to the child victim in the 2001 incident.

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      Equally instructive in failure to report cases is that criminal liability for

this failure to report is also subject to a statute of limitations. Like the statute

for EWOC, failure to report is subject to a two-year statute of limitations. See

42 Pa.C.S. § 5552. Unlike EWOC, however, there is no course of conduct

exception, meaning that the discreet incident of failure to report does not

continue beyond the period provided by the statute. Indeed, Appellant was

charged with the failure to report suspected child abuse under this statute,

but this charge was dismissed as it was beyond the statute of limitations.

      With these principles in mind, I must determine whether Appellant’s

violation of his duty of care was actionable outside of the two-year period and

whether the Commonwealth could legally bring such an action based upon the

course-of-conduct exception.      In Popow, this Court held that the logical

interpretation of the statutory language of 18 Pa.C.S. § 4304(b) is “that it is

designed to punish a parent who over days, weeks, or months, abuses his

children, such as repeatedly beating them or depriving them of food . . . the

statute was clearly not designed for an event that occurs within minutes, or,

perhaps in a given case, even hours.” Id. at 17. Since deciding that case,

our Court has further noted that it is multiple acts, not the duration of time

between the acts which is the operative concern. Commonwealth v. Kelly,

102 A.3d 1025, 1030–31 (Pa. Super. 2014).

      The Commonwealth, on the other hand, employs a rather tortured

argument to suggest that Appellant’s inaction was a continuing course of

conduct and that his “one action” created an ongoing danger to any child

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brought onto the campus or encountered by Sandusky. The sole authority

cited in support of its contention is Commonwealth v. Stitt, 947 A.2d 195

(Pa. Super. 2008).

       In Stitt, a convicted sex offender was charged with failure to register

pursuant to 42 Pa.C.S. § 9795.2(a)(2)(i). Id. at 196. This crime also carried

a two-year statute of limitations.       Id. at 197.    Stitt argued that the

Commonwealth had two years from the date of the crime – his failure to

register his change of residence on July 14, 2002 – to file a criminal

information. Id. Thus, according to the appellant, the Commonwealth should

have   commenced      prosecution   by   July   2004.   Id.     However,    the

Commonwealth did not file its information until May 18, 2005, almost a year

later. Id. Our Court rejected the argument, finding that the course of conduct

exception applied, because

       [w]hile compliance with this statute is accomplished with the
       discrete act of appearing at the proper place and informing the
       proper authorities of one’s residence, the failure to register
       represents the ongoing act of preventing the purpose of
       registration. Thus, it would be the termination of failing to
       register that triggers the running of the statute of limitations.

       If Stitt had registered with the authorities in September, 2002—
       two months late—the Commonwealth would have had until
       September, 2004 to prosecute him for the late registration. But
       Stitt did not register tardily, thus triggering the running of the
       statute of limitations. Stitt did not register at all—his absolute
       failure to register represents the ongoing violation of section
       9795.2. Thus, the statute of limitations did not begin to run and
       so could not have been violated.

Stitt, 947 A.2d at 197–98.



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      The sex offender statute places an affirmative duty to register upon the

defendant, and the termination of that crime – either by arrest, or by late

registration – triggers the statute. Id. The failure to register is in itself the

crime, and that crime continues until the action is ended. Id. In the instant

case, however, there is no such ongoing obligation enshrined in the statute.

A defendant endangers the welfare of a child by violating a duty of care,

protection, or support, and unless there is a course of conduct or some other

exception applicable, the statutory period ends at two years. See 18 Pa.C.S.

§ 4304(a)(1); 42 Pa.C.S. § 5552(a).

      Here, the actions alleged as a violation are that Appellant, Curley and

Schultz, entered into an agreement not to report the 2001 incident to the

police or DHS, in exchange for Sandusky’s promise to stay out of campus

facilities and not to bring children into the facilities. As noted above, case law

defining a course of conduct notes that the logical interpretation of the

legislative language is that it should punish continuing conduct of multiple

instances of abuse. Popow, 844 A.2d at 17. Similarly, parents who withheld

critical medical services due to their religious beliefs engaged in a course of

conduct where 1) their pattern of inaction led to the death of their son and 2)

they were aware that the child was in circumstances threatening his life, and

their “lame and meager” actions could not have been expected to protect his

welfare.   See Commonwealth v. Foster, 764 A.2d 1076, 1081-83 (Pa.

Super. 2000).




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       Here, once Appellant agreed to the plan, while he may have violated his

duty of care, his involvement ended with his February 27, 2001 email,

agreeing to the revised plan not to report Sandusky to DPW.                   The

Commonwealth has introduced no additional evidence to show that Appellant

was aware of any incidents involving Sandusky after 2001 nor his active

involvement in any further actions involving Sandusky.            Accordingly, the

course of conduct exception is inapplicable as a matter of law, where Appellant

endangered the welfare of a child by failing to report suspected child abuse,

and where the charges were not brought within the statute of limitations.

       Finally, Appellant takes issue with the manner in which the trial court

applied the statute of limitations. In its Pa.R.A.P. 1925(a) opinion, the trial

court noted that the legislature had amended the statute of limitations relating

to sexual offenses against children, including EWOC. See TCO at 9-10 (citing

in support 42 Pa.C.S. § 5552(c)(3)).               For such crimes, the statute of

limitations begins “up to the later of the period of limitation provided by law

after the minor has reached 18 years of age or the date the minor reaches 50

years of age.” See 42 Pa.C.S. § 5552(c)(3).4 The trial court noted that the
____________________________________________


4 At the time of the offense, 42 Pa.C.S. § 5552(c)(3) provided that for a sexual
offense against a minor, prosecution could be commenced within two years
after the victim’s eighteenth birthday. 1990 Pa. Laws 1341, No. 208, § 1.
The statute was amended January 29, 2007. See 42 Pa.C.S. § 5552(c)(3).
Where a limitation period has begun to run before the statute repealing the
statute takes effect, the time which is already run is deemed part of the time
prescribed by the limitation. See 1 Pa.C.S. § 1975; Commonwealth v.
Riding, 68 A.3d 990, 994-96 (Pa. Super. 2013). Thus, the court contends



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child victim in the 2001 incident was ten to twelve years old; thus, the statute

would run in approximately 2039. Id. at 10. Appellant asserts that reliance

on this section of the statute was procedurally improper where this provision

was never raised before or at trial.               Id. at 32 (citing in support

Commonwealth v. Bethlehem, 570 A.2d 563, 565-67 (Pa. Super. 1989)

(noting that a post-verdict basis for applying an exception is unsustainable,

where the facts of the case did not permit application of the tolling provisions

in the first instance), abrogated on other grounds by Commonwealth v.

Gerstner, 656 A.2d 108 (Pa. 1995)).

       I reject the trial court’s reliance upon this section. Moreover, I find the

Majority’s attempt to rationalize this belated reliance unpersuasive. As I will

explain, infra, the Commonwealth’s failure to invoke the exception violated

the due process requirements of notice.

       Historically, where the Commonwealth sought to toll the statute, it was

required to allege the exception to the statute in the indictment itself. See

Commonwealth v. Bender, 380 A.2d 868, 870 (Pa. Super. 1977) (reversing

judgment of sentence and discharging defendant where the indictment did not

notify defendant that Commonwealth sought to toll the statute of limitations).

The Commonwealth must “apprise the defendant that he must defend not only

against the crime itself but also against the limitation of prosecution.”
____________________________________________


that the prosecution was timely commenced because the amendment to the
statute took place prior to the victim’s eighteenth birthday. See TCO at 9-10.
Regardless, based upon our analysis infra, the timing of the filing is of no
moment.

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Commonwealth v. Cody, 156 A.2d 620, 623 (Pa. Super. 1959). Cody also

provides further guidance as to the reasoning behind this holding:

      [The defendant] should be informed before trial why the statute
      of limitation has no application. The opportunity to prepare a
      defense against such allegation should be given to the same
      extent as the opportunity to defend against the accusation of
      crime itself. Were it otherwise, no attack, preliminary to trial,
      could ever be made on this ground, and if made during or
      subsequent to trial, an accused would be faced with the well-
      established rule that an attack on an indictment will not be
      considered after a plea is entered and the jury is sworn.

Cody, 156 A.2d at 623 (emphasis added) (citing, inter alia, Blackmun v.

Commonwealth, 17 A. 194 (Pa. 1889)). Thus, proper notice was deemed

essential because it informs a defendant not only of the facts alleged but also

a specific reason why, despite a delay in prosecution, such prosecution may

nonetheless commence. Id. at 623. Absent such notice, a defendant suffers

prejudice. Id.

      In one of the seminal cases discussing this issue, the Pennsylvania

Supreme Court’s conception of prejudice evolved. According to the Court, the

Commonwealth was not required to include any notice of tolling or exceptions

to the statute of limitations in the criminal information; rather, any pretrial

notice was sufficient. See Commonwealth v. Stockard, 413 A.2d 1088,

1092 (Pa. 1980).

      In Stockard, the defendant was charged with and convicted of five

counts of theft by failure to make required disposition of funds received, 18

Pa.C.S. § 3927, and five counts of violating Section 1-401(b) of the



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Pennsylvania Securities Act of 1972, 70 P.S. § 1-401(b). Stockard, 413 A.2d

at 1089. Prior to trial, the defendant filed a motion to dismiss the criminal

complaint with respect to the Section 3927 charges, averring that the two-

year statute of limitations had expired prior to the time prosecution

commenced and because the Commonwealth did not inform him in the

indictment that it would seek to toll the statute.5 Id. at 1092.

       Ultimately, the Court concluded that the statute had been tolled within

the limitations period, and because the Commonwealth informed the

defendant of its intent to toll the statute in the answer to the motion to dismiss

the complaint, the due process requirements of notice were satisfied. See

Stockard, 413 A.2d at 1092-93. Since Stockard, as I will discuss infra, our

Courts have used the concept of “tolling” the statute in reference to both the

specific section regarding tolling cited in Stockard – now enshrined at 42

Pa.C.S. § 5554 – as well as to other codified exceptions to the statute of

limitations.

       In conclusion, although Stockard relaxed the requirements of due

process, granting the Commonwealth greater flexibility in the timing of its

notice to a defendant of its intention to toll the statute of limitations, the Court

reaffirmed the ancient rule that allegations of fact alone did not provide a

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5At the time of the defendant’s arrest, the Crimes Code provided        that “[t]he
period of limitation does not run . . . during the time when the        accused is
continuously absent from this Commonwealth or has no                    reasonably
ascertainable place of abode or work within this Commonwealth.”         18 Pa.C.S.
108(f) (1973); see also Stockard, 413 A.2d at 1092.

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defendant with an opportunity to challenge the tolling of, or some other

exception to, the statute of limitations. Id.; see also Cody, 156 A.2d at 623;

Blackmun, 17 A. at 194.

      Subsequent case law has consistently applied this standard.            In

Commonwealth v. Bidner, 422 A.2d 847, 849-50 (Pa. Super. 1980)

superseded by statute as recognized by Commonwealth v. Nypaver, 69

A.3d 708, 713-14 (Pa. Super. 2013), the defendant was charged with entering

a false address on a Voter’s Registration Affidavit. See Bidner, 422 A.2d at

111. The trial court found that the information had not been brought within

the statute of limitations and dismissed the charges.       Id.   Although the

Commonwealth did not inform the defendant that it would seek to apply the

exception, it specifically averred in the information that the crime contained a

material element, fraud, which constituted an exemption from the limitations

period under the applicable statutes. Id. at 854-55. Thus, this Court found

that the information was not fatally defective and reversed. Id.

      In contrast to Bidner, in Commonwealth v. Eackles, the defendant

was convicted of multiple counts of forgery, theft by unlawful taking, and

conspiracy. See Commonwealth v. Eackles, 428 A.2d 614, 616 (Pa. Super.

1981). The question in this case was whether fraud was a material element

of theft by unlawful taking, such that the Commonwealth could “toll” the

statute of limitations using the fraud exception then codified at 18 Pa.C.S. §




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108(c)(1).6 Id. at 618. The panel concluded that fraud was not a material

element of theft by unlawful taking. Id. The panel also, citing Stockard,

noted that “where the Commonwealth seeks to toll the statute under this

section” with an exception, it must inform the defendant of said intention

within a reasonable time so the defendant may defend against it. Id. Thus,

because the information did not allege that the theft was accompanied by

fraud or that fraud was a material element to the theft, the Commonwealth

could not later rely upon this exception to commence prosecution. Id.

       In Commonwealth v. Cruz, the defendant was charged with escape

for failing to return to prison after his furlough and for absconding to Puerto

Rico and then Chicago. See Commonwealth v. Cruz, 512 A.2d 1270, 1270-

71 (Pa. Super. 1986). The applicable statute of limitations was two years.

Id. The majority, citing Stockard, concluded that because the facts were

received in the arrest warrant affidavit, and because the defendant was aware

of the alleged facts, he was not prejudiced.        Cruz, 512 A.2d at 1272.

However, the majority noted further, despite this implicit notification, that the

____________________________________________


6 The fraud exception may now be found, with nearly identical wording, at 42
Pa.C.S. § 5552(c)(1). At the time, 18 Pa.C.S. § 108(c)(1) provided that a
prosecution could be commenced beyond the expiration of the statute of
limitations where “any offense a material element of which is . . . fraud . . .
within one year after discovery of the offense by an aggrieved party or by a
person who has legal duty to represent an aggrieved party and who is himself
not a party to the offense, but in no case shall this paragraph extend the
period of limitation otherwise applicable by more than three years.” Eackles,
428 A.2d at 618.



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defendant had waived any challenge to the legitimacy of the information by

failing to raise the limitation issue pre-trial. Id.

       The Cruz dissent is instructive, noting specifically that the majority

found waiver and suggests, therefore, that any further substantive analysis is

dicta. Cruz, 512 A.2d at 1272-73 (finding factual notice insufficient because

defense counsel does not routinely receive the affidavit submitted in a request

for an arrest warrant).7

       In Commonwealth v. Bethlehem, the defendant was convicted of

rape, statutory rape, and involuntary deviate sexual intercourse as a result of

the sexual abuse of his niece. See Commonwealth v. Bethlehem, 570 A.2d

563, 564 (Pa. Super. 1989), abrogated on other grounds by Commonwealth

v. Gerstner, 656 A.2d 108 (Pa. 1995). Prior to trial, the defendant sought to

dismiss the charges. Id. At that time, the Commonwealth did not raise an

applicable statutory exception; its sole argument was that “time elements

were not controlling in cases involving minors,” relying upon an unpublished

decision of this Court. Id. at 564-65. Instead, the trial court accepted the
____________________________________________


7 The dissent offered its own analysis of Stockard, finding that the case
requires

       more than simply that a defendant be aware of the facts on which
       the Commonwealth might base an allegation; it holds that due
       process requires pre-trial notice that the Commonwealth will
       allege the exception. Without that specific notice, in a document
       which the defendant will receive, the defendant is denied his due
       process right to an opportunity to defend against the allegation.

Cruz, 512 A.2d at 1273.


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Commonwealth’s post-verdict assertion that 42 Pa.C.S. § 5554(3) applied to

toll the limitations period. Id. at 565.

      Our Court reversed for two reasons. First, it noted that the law “requires

that any allegation that the running of a statute of limitations period was tolled

by an applicable statutory exception must be made in the complaint itself, or

at the latest, a reasonable time before trial.” Bethlehem, 570 A.2d at 565

(citing in support Cruz, supra, and Eackles, supra) (emphasis added).

There was no pretrial notice, either actual or constructive, that the

Commonwealth sought to apply an exception to the statute. Id. Second, the

post-verdict basis was unsustainable on the merits.             Id.   at 565-66

(concluding that “person responsible for the child’s welfare,” as used in statute

tolling limitations period, was not synonymous with the legal term in loco

parentis).   Essentially, the Commonwealth’s reliance upon an erroneous

statement of law did not give the defendant sufficient notice that the

Commonwealth sought to evade the statute of limitations with an enumerated

exception. Id.

      In Commonwealth v. Morrow, the defendant was charged with

indecent assault of a victim under the age of eighteen. See Commonwealth

v. Morrow, 682 A.2d 347, 348 (Pa. Super. 1996). In an omnibus pre-trial

motion, the defendant sought to dismiss the charges as being beyond the

applicable statute of limitations.    Id.      At a hearing on the motion, the

Commonwealth notified the defendant in writing of its intent to toll the statute




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under 42 Pa.C.S. § 5554(3).8           The trial court rejected this argument and

dismissed the charges. On appeal, the Commonwealth argued that the court

erred in dismissing the charges because under 42 Pa.C.S. § 5552(c)(3), the

charges were exempt from the limitations period. Id.

       Citing favorably to Stockard, Bidner, and Cruz, the panel held that the

defendant was on notice that a statutory exception applied, where the

complaint specifically averred that the victim was under fourteen years of age.

Id. at 349.       Further, the Commonwealth had satisfied due process by

informing the defendant of its intent to toll the statute with its response to the

defendant’s pretrial motion to dismiss. Id. Again, Morrow emphasizes that

factual notice is required, but this requirement is distinct from the equally

important notice that an exception to the normal running of the statute of

limitations is applicable. See Morrow, supra.

       In Commonwealth v. Russell, 938 A.2d 1082 (Pa. Super. 2007), the

defendant was charged with second degree murder and several other felonies

perpetrated in connection with the murder. Russell, 938 A.2d at 1987-89.

All of the non-murder crimes were beyond their respective statutes of

limitations, but the Commonwealth commenced prosecution based upon the

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8  “Except as provided by section 5553(e) (relating to disposition of
proceedings within two years), the period of limitation does not run during
any time when . . . a child is under 18 years of age, where the crime involves
injuries to the person of the child caused by the wrongful act, or neglect, or
unlawful violence, or negligence of the child's parents or by a person
responsible for the child's welfare, or any individual residing in the same home
as the child, or a paramour of the child's parent.” See 42 Pa.C.S. § 5554(3).

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“any felony alleged to have been perpetrated in connection with a murder”

exception. Id.; see also 42 Pa.C.S. § 5551(4). Ultimately, the defendant

was acquitted of the murder but convicted of several other crimes, including

arson    endangering    persons,   arson     endangering   property,   risking   a

catastrophe, and cruelty to animals. Id.

        On appeal, the defendant argued that to toll the statute of limitations,

the Commonwealth must state in the criminal information the exception to the

statute of limitations on which it relied.     Russell, 938 A.2d at 1088.    The

defendant argued that because the Commonwealth had relied upon 42 Pa.C.S.

§ 5551(4) (no limitations applicable for any felony alleged to have been

perpetrated with murder of first or second degree), and the jury had acquitted

her of murder, her conviction for arson could not stand, as it was commenced

beyond the statute of limitations. Russell, 938 A.2d at 1088. The panel held

that, pursuant     to   Stockard, the      Commonwealth satisfied its notice

requirement where it apprised the defendant of its intent to rely upon 42

Pa.C.S. § 5551(4) to bypass the statute of limitations at a reasonable time

prior to trial, in this case, at the hearing to resolve the defendant’s motion to

dismiss.     Id.    Thus, as the defendant was expressly aware of the

Commonwealth’s intention to rely on the exception, the defendant incurred no

prejudice. Id.

        As this line of cases makes clear, the law remains well settled.

Essentially, provided the defendant, at some reasonable time prior to trial is

apprised that the Commonwealth will seek to toll the statute, the due process

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requirements of notice are met. See Stockard, 413 A.2d at 1092; Cruz, 512

A.2d at 1272-73; Morrow, 682 A.2d at 349; Russell, 938 A.2d at 1088;

Cody, 156 A.2d at 623. The notice itself, and accordingly the opportunity to

defend, is the operative and most important aspect: this is the due process

concern that must be satisfied. Id.

     The Majority contends that, pursuant to Morrow and Commonwealth

v. Houck, 102 A.3d 443, 449-50 (Pa. Super. 2014) (noting that a defendant

may be convicted of a crime not actually charged when the uncharged offense

is a lesser-included offense; he will have been put on notice of the charges

against him), the Appellant was constructively aware of the applicable

statutory provision, as there was testimony that the victim was ten to twelve

years old.    This argument falls flat in the face of the Commonwealth’s

continued reliance upon the course of conduct exception, which I have

rejected supra. As noted in Bethlehem, “there is a fundamental difference

between knowledge of the existence of a statutory provision and receipt of

notice that the prosecution will seek application of a given provision in a

particular case with sufficient time prior to trial to prepare to challenge

application of the provision.” Bethlehem, 570 A.2d at 565 n.1; see also

Stockard, 413 A.2d at 1092; Cody, 156 A.2d at 623.

     Here, similarly, Appellant prepared his defense in response to the

Commonwealth’s express reliance upon the course of conduct exception. See,

e.g., Cruz, 512 A.2d at 1272-73; see also Morrow, 682 A.2d at 349.

Appellant was unsuccessful in this challenge before the trial court, and the

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matter proceeded to trial. Unlike the situation in Morrow, the Commonwealth

did not notify Appellant of its intention to toll the statute here, based upon its

assertion that the course of conduct exception applied. See Morrow, 682

A.2d at 349. In fact, it did not inform Appellant of its intention at all.9 Absent

proper pretrial notice, the requirements of due process were not met.

       Accordingly, I cannot accept the trial court’s assertion that 42 Pa.C.S. §

5552(c)(3) operates to extend the statute of limitations or any reliance by the

Commonwealth upon this provision. The first instance of reliance upon this

statute was in the court’s 1925(a) opinion. As it was not raised prior to trial

by the Commonwealth and Appellant did not have the opportunity to defend

himself against it, I am constrained to find that Section 5552(c)(3) does not

operate to extend the statute of limitations.10 See Morrow, 682 A.2d at 349;

Stockard, 413 A.2d at 1092.

       The Commonwealth supplies no additional authority to support its

contention that we should expand the EWOC statute of limitations in such a

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9 I note that, in its brief, the Commonwealth declines even to address its
failure to properly notify Appellant at all. See Commonwealth’s Brief at 13-
20.

10 I note with disfavor the lackadaisical manner in which the Commonwealth
brought this case to trial and in not preserving all potential exceptions to the
statute, if appropriate. As Appellant notes in his brief, the Commonwealth did
not prove that the child in the shower was underage. See Appellant’s Brief at
37-38. I note, with equal disapproval, that it was Appellant’s own inaction
that prevented the Commonwealth from proving anything about the child’s
identity or age.



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manner, and I can find none.11 Accordingly, based on the above, I cannot

agree that the course of conduct or the sexual offenses against minors

exceptions toll the statute in this case, and I would reverse Appellant’s

conviction and vacate his judgment of sentence. Thus, I dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2018




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11 There is nothing in the current statute or case law that permits a finding of
course of conduct based upon inaction. This may be an issue for the
legislature to address in the future, but as noted supra, this Court is
constrained by the current state of the law.

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