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COMMONWEALTH PENNSYLVANIA v. ELMER C. MCCLUCAS (06/23/86)

submitted: June 23, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ELMER C. MCCLUCAS, SR., APPELLANT



Appeal from the Judgment of Sentence December 31, 1985 in the Court of Common Pleas of Dauphin County, Criminal No. 684(E) C.D. 1985.

COUNSEL

Joshua D. Lock, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.

Olszewski, Cercone and Hester, JJ.

Author: Olszewski

[ 357 Pa. Super. Page 451]

This matter comes before this Court on appeal from a judgment of sentence. Appellant, Elmer C. McClucas, Sr., was convicted of rape (3 counts), statutory rape (3 counts), incest, simple assault (2 counts), corruption of minors, and endangering the welfare of children.*fn1 These offenses were allegedly committed against appellant's minor child on or about March 1979 through April 1984. Various pre-trial motions challenging, inter alia, the factual allegations contained in the informations and the rise of certain offenses which occurred outside the statute of limitations period were filed and denied. In addition, the court denied a defense request to exclude all testimony relating to any offenses which occurred outside the statutory period. Following his conviction, appellant was sentenced to a cumulative term of five-to-ten years imprisonment. Appellant now contends that: (1) trial counsel was ineffective in failing to seek a dismissal of certain counts of the information charging incidents of rape, statutory rape, and corruption of minors which occurred outside of the period allowed for prosecutions; (2) trial counsel was ineffective in failing to seek an arrest of judgment where the remaining charges were supported by insufficient evidence; (3) the informations should have been dismissed inasmuch as they violated Pa.R.Crim.P. 225(b) by alleging criminal violations outside the period of the statute of limitations; (4) the informations charging appellant with rape, statutory rape, and incest were insufficient and thus denied him the opportunity to defend himself; and (5) testimony regarding criminal acts committed by appellant outside of the statute of limitations period was improperly admitted into evidence. We will address these arguments seriatim.

After a careful review of the record, we note appellant's trial counsel attempted, although unsuccessfully, via pre-trial motions*fn2 to challenge the informations on the basis

[ 357 Pa. Super. Page 452]

    that certain offenses contained therein were time-barred. In addition, trial counsel filed a supplemental omnibus pretrial motion*fn3 that included a motion to dismiss the information due to a lack of specificity and the expiration of the statute of limitations and argued these motions prior to trial. Premised on the concerted efforts of appellant's trial counsel, we cannot say that appellant was denied the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We similarly find with respect to appellant's second argument asserting similar deprivations, that appellant's trial counsel did raise the insufficiency of the evidence argument in a motion for a new trial and in arrest of judgment. Consequently, appellant's claim of ineffective assistance of counsel must fail.

Nor are we persuaded by appellant's third argument that the informations filed against appellant should have been dismissed inasmuch as they violated Pa.R.Crim.P. 225(b) by containing offenses which occurred beyond the statute of limitations. It is well established that a reviewing court will only reverse a decision granting or denying a motion to quash when the lower court clearly has abused its discretion. Commonwealth v. Shirey, 333 Pa. Super. 85, 481 A.2d 1314 (1984); Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1980). See also Commonwealth v. Hackney, 117 Pa. Super. 519, 178 A. 417 (1935).

The Pennsylvania Rules of Criminal Procedure, in pertinent part, provide that in order for an information to be valid, it 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 ...


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