Appeal from order of Court of Common Pleas of Montgomery County, July T., 1972, No. 538, in case of Commonwealth of Pennsylvania v. Howard Peregoy.
Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellant.
Alan Jay Josel, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Cercone, J. Jacobs and Hoffman, JJ., concur in the result.
[ 226 Pa. Super. Page 331]
This is an appeal by the Commonwealth from the lower court's order quashing the transcript of a preliminary hearing and quashing indictments charging defendant with statutory rape, incestuous adultery and corrupting the morals of his minor daughter.
A proper consideration of this case requires a chronology of the events. On September 2, 1971, the Montgomery County Grand Jury returned bills of indictment against defendant alleging that he had committed the above-mentioned crimes "on or about August 21, 1970, and diverse other times within the other two years past." Since only the August 21st date was mentioned in the indictments, defendant, through his attorney, filed an application for a bill of particulars requesting all the dates, times and places of the alleged offenses in order to prepare an alibi defense. This application was denied by the lower court and no objection was taken by defendant. Defendant then filed a motion to quash the indictments on grounds of vagueness
[ 226 Pa. Super. Page 332]
and inability to prepare a proper alibi defense. The lower court dismissed the motion to quash but limited the Commonwealth to proving only those offenses which allegedly occurred on August 21, 1970, being the only specific date set forth in the indictment. The defendant did not enter an objection to this order.
At trial on June 21, 1972, before a jury, the DA informed the court he was unable to proceed with the trial because none of the alleged offenses occurred on August 21, 1970. He requested the court to reconsider the earlier order restricting the trial to crimes alleged to have occurred on August 21, 1970, and to amend the indictments to include alleged crimes occurring on other dates. The court refused this request and also the DA's request for a nolle pros on the August 21, 1970, events. Instead the court instructed the jury as follows: "The Court: Well, members of the jury, by reason of certain pre-trial, motions and proceedings held heretofore in this matter, the Court had restricted the Commonwealth to prove [sic] of a crime committed on August 21st, 1970. And the district attorney has stated, in your absence, at the bar of the Court, that he is not prepared to offer any evidence as to a crime committed on that date, August 21st, 1970. So there's nothing further for the Court to do but to enter a verdict in favor of the defendant on the bill charging statutory rape, incestuous adultery and corrupting morals of children, as to any one or more of those offenses which may have been committed on August 21st. And you're number one in the box, so please rise and give a verdict of not guilty when called upon by the clerk." Although some colloquy preceded the court's instruction to the jury, there is no doubt as to its intent and purpose. Furthermore the defendant entered no objection to the court's instruction nor to the verdict which was entered on the basis of the instruction.
[ 226 Pa. Super. Page 333]
The Commonwealth rearrested defendant on August 12, 1972 on charges of incestuous adultery, statutory rape and corrupting the morals of minors, this time covering specific dates, to-wit, September 4, 5, 12, 19, 26, 1970; October 3, 10, 17, 24, 31, 1970; November 7, 14, 21, 28, 1970; December 5, 12, 19, 26, 1970; January 2, 9, 16, 23, 30, 1971. (These dates, with the exception of September 4, 1970, which was a Friday, fell on Saturdays).
At the preliminary hearing on these charges, the prosecuting witness testified that defendant had sexual relations with her on September 4, 1970, and every weekend thereafter through January 30, 1971. She remembered September 4, 1970, specifically because on that day defendant purchased a new automobile (her father and mother were separated and prosecutrix lived with her father during the time of the alleged offenses). Although the complaint set forth specific weekend dates, prosecutrix could only remember September 4, 1970, as a specific date on which sexual relations took place, but she did recall that defendant had relations with her every weekend after September 4, 1970, through January 30, 1971. The magistrate found that a prima facie ...