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COMMONWEALTH PENNSYLVANIA v. ALBERT NIEMETZ (11/26/80)

filed: November 26, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT NIEMETZ, APPELLANT



No. 1369 April Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC 7706381A.

COUNSEL

Vincent R. Baginski, Pittsburgh, for appellant.

Kemal Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Price, Cavanaugh and Watkins, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Price

[ 282 Pa. Super. Page 436]

Appellant, Albert Niemetz, appeals from the judgment of sentence imposed after a jury convicted him of rape,*fn1 involuntary deviate sexual intercourse,*fn2 indecent assault,*fn3 and corruption of minors.*fn4 Post-trial motions for a new trial and in arrest of judgment were denied and appellant was sentenced to a term of imprisonment of from seven and one-half to fifteen years.

Appellant raises several contentions on appeal. Initially, appellant argues that the lower court erred by denying both his motion to quash the information and his demurrer.*fn5 Appellant further contends that he was denied due process of law as a result of various evidentiary rulings. First, appellant argues that the trial judge erroneously permitted the victim to testify concerning occurrences of rape and other similar activities specified in the information without identifying the dates of such occurrences. Second,

[ 282 Pa. Super. Page 437]

    appellant contends that it was error to admit evidence of any sexual conduct occurring beyond the pertinent period of limitation. Last, appellant asserts that he was denied due process by the trial court's refusal to permit cross-examination of the victim concerning whether he was or was not circumcised. Finding no merit in these contentions, we affirm the judgment of sentence.

Perceived in the light most favorable to the Commonwealth, see Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975); Commonwealth v. Irvin, 260 Pa. Super. 122, 393 A.2d 1042 (1978), the following was adduced at trial. Bonnie Jean Wilmot, the victim herein, was appellant's stepdaughter. Only eighteen years of age at the time of trial, Ms. Wilmot nonetheless related a long and sordid narrative of her childhood. Her testimony revealed that she first met appellant when she was between five and six years old and in the first grade. As a nine year old third grade student she was forced to perform fellatio upon appellant and, as early as the fourth grade, was obliged to submit to sexual intercourse with him. Beatings and threats of violence forced Ms. Wilmot to submit to appellant's advances more frequently and by the time Ms. Wilmot was in the seventh grade, sexual contact with her stepfather became routine. She became pregnant and delivered a baby, Albert Bernard Niemetz, on April 5, 1976, when she was a sixteen year old ninth grader and had a second pregnancy terminated by an abortion on May 14, 1977. Sexually abused by appellant for the last time on or about June 10, 1977, Ms. Wilmot left her home and sought refuge in a rape crisis center on August 27, 1977. As a result of these incidents, appellant was tried and convicted of rape, involuntary deviate sexual intercourse, indecent assault and corruption of minors.*fn6 This appeal followed.

Initially, appellant contends that the lower court erred in denying both his pretrial application for a rule to quash and his application to quash the information. We disagree.

[ 282 Pa. Super. Page 438]

The information in the instant case provided, in pertinent part, that the alleged offenses occurred "on (or about) divers dates beginning in 1972 and continuing until August, 1977." Appellant thereafter requested a Bill of Particulars to obtain the specific dates, times and places of the pertinent offenses. The Commonwealth responded by explaining that it was unable to state with more specificity the dates of the offenses "except to say that the offenses occurred mostly on weekends." Appellant's bedroom in a former residence on Bogg's Avenue, the victim's sister's bedroom in a one time family residence on Carnahan Road and appellant's present home on Lucina Avenue in Pittsburgh were named as principal locations of the named offenses. Perceiving that the Commonwealth's response was inadequate, appellant filed a pretrial application for a rule to quash the information. This application was denied by the Honorable Robert E. Dauer. Appellant thereafter filed an Application to Quash attacking the validity of the information rather than the Commonwealth's response to his Bill of Particulars. This latter application was likewise denied in a well-reasoned opinion by the Honorable Zoran Popovich.

As regards appellant's contention that his Application for a Rule to Quash was improperly denied, we note that appellant did not question the validity of the information,*fn7 but rather challenged only the lack of specificity in the Commonwealth's response to his Bill of Particulars. An information, valid on its face, is not rendered demurrable or subject to a motion to quash by a defective response to a bill of particulars, see Commonwealth v. Hershman, 171 Pa. Super. 134, 139, 90 A.2d 314, 317 (1952), aff'd, 374 Pa. 311, 97 A.2d 777 (1953). Judge Dauer properly denied appellant's application, therefore, unless the information was defective,

[ 282 Pa. Super. Page 439]

    in which case, the second application, the application to quash, should have been granted.

To be valid, an information must contain, inter alia,

"the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient. . . ."

Pa.R.Crim.P. 225(b)(3) (emphasis added). The information in the instant case averred the commission of offenses "on (or about) divers dates beginning in 1972 and continuing until August, 1977." This course was adopted because the Commonwealth was unable to "state the dates on which the offenses occurred with any more specificity." Since time is not of the essence in the crimes for which appellant was charged and convicted, see Commonwealth v. Yon, 235 Pa. Super. 232, 341 A.2d 169 (1975); Commonwealth v. Rouse, 207 Pa. Super. 418, 218 A.2d 100 (1966), the pertinent allegation contained in the information appears to fit precisely Rule 225's proviso that an allegation that an offense was committed "on or about any date within the period fixed by the statute of limitations shall be sufficient" when (1) time is not of the essence and (2) a precise date is unknown.

The decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion. See Commonwealth v. Hackney, 117 Pa. Super. 519, 522, 178 A. 417, 418 (1935); Commonwealth v. Schwartz, 56 Pa.D. & C.2d 147 (C.P.Phila.1972). A court, moreover, "should not sustain a motion to quash . . . except in a clear case where it is convinced that harm has been done to the defendant by improper conduct that interfered with his substantial rights." Commonwealth v. O'Brien, 181 Pa. Super. 382, 397, 124 A.2d ...


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