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COMMONWEALTH PENNSYLVANIA v. RUBEN MASCITTI (01/20/87)

submitted: January 20, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
RUBEN MASCITTI, APPELLANT



Appeal from Judgment of Sentence entered September 4, 1985 in the Court of Common Pleas of Crawford County at No. 1984-516, 517.

COUNSEL

Michael D. Mason, Assistant Public Defender, Meadville, for appellant.

John M. Dawson, District Attorney, Meadville, for Com., appellee.

Beck, Kelly and Hoffman, JJ. Hoffman, J., files concurring and dissenting opinion.

Author: Kelly

[ 368 Pa. Super. Page 456]

Appellant, Ruben Mascitti, appeals from judgment of sentence of ten to twenty years imprisonment imposed upon his conviction of involuntary deviate sexual intercourse, statutory rape, corruption of minors, and endangering welfare of children following a jury trial.

Appellant contends on appeal that: 1) the trial court erred in failing to quash the charges of corruption of minors and endangering the welfare of a child based upon the alleged expiration of the statute of limitations period for the offenses; 2) the trial court erred in sua sponte vacating appellant's negotiated nolo contendere plea; and 3) the trial court abused its discretion in denying appellant's trial counsel's motion for declaration of a mistrial and for permission to withdraw as counsel following an in-chambers hearing regarding counsel's belief that appellant intended to commit perjury. We find no merit in the contentions and accordingly affirm.

The details of this case may be briefly stated as follows. Appellant married the victim's mother in 1975, when the

[ 368 Pa. Super. Page 457]

    victim was three years old. In November 1979, appellant began sexually abusing his then six-year-old step-daughter. The abuse occurred in the family home in Crawford County, Pennsylvania, and included acts of intercourse and oral sex.

In September 1982, appellant moved to Florida to seek employment. One month later, his wife and the child victim joined him in Florida. In December 1983, the child victim and her mother came to Pennsylvania intending to make a brief visit; however, the visit became an extended stay. In June 1984, the child victim revealed to her mother the facts regarding the repeated sexual abuse inflicted upon her by her stepfather. Charges were filed against appellant in July 1984, and appellant returned to the Commonwealth for arraignment in August 1984.

Appellant initially entered a plea of nolo contendere to the charges on January 15, 1985. Sentence was deferred until completion of a pre-sentence report. On February 5, 1985, following review of the pre-sentence report and examination of the appellant regarding assertions of innocence made by appellant to the probation officer, the trial court sua sponte vacated appellant's plea and scheduled the case for trial.

An in-chambers hearing was held prior to trial during which counsel for appellant informed the trial court that he had reason to believe that appellant intended to take the stand and commit perjury. The court then proceeded to question appellant. Apparently unsatisfied with appellant's responses, the court directed that counsel continue representation but that appellant would have to testify by narrative rather than direct examination if appellant chose to testify at trial. The trial court also admonished appellant regarding the consequences of committing perjury. Counsel's motions for declaration of a mistrial and for permission to withdraw as counsel were denied. Trial commenced, and appellant chose not to testify in his own defense. A verdict of guilty was returned. Post-verdict motions were denied. Sentence was imposed, and the instant timely appeal followed.

[ 368 Pa. Super. Page 458]

I.

Appellant first contends that the trial court erred in failing to quash the charges of corruption of minors and endangering the welfare of children based upon the alleged expiration of the statute of limitations period. Appellant argues that although he was in fact continuously absent from the Commonwealth from September 1982 to July 1984, the running of the statute of limitations period was not tolled by operation of 42 Pa.C.S.A. § 5554(1), because appellant left the Commonwealth legitimately to seek new employment in Florida and not to escape prosecution, and at no time did he seek to hide his identity or whereabouts. (Appellant's Brief at 13). We cannot agree.

Appellant's argument assumes the existence of a mens rea or motivation exception or limitation to Section 5554(1) of the statute of limitations tolling statute, which we do not find in the plain language of the statute:

§ 5554. Tolling of statute.

Except as provided by section 5553(e) (relating to disposition of [summary] proceedings within two years), the period of limitation does not run during any time when:

(1) the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth; . . . .

Rather, the plain and unambiguous language of the statute provides that the statute of limitation period is tolled whenever an accused is continuously absent from the Commonwealth.

We have neither the authority nor the inclination to adopt the novel theory propounded by appellant. "Where as here, the words of the statute are clear, the letter thereof will not be disregarded under the pretext of pursuing an unstated legislative intent. 1 Pa.C.S.A. § 1921(b); City of Pittsburgh v. Royston Service, Inc., 37 Pa. Commw. 394, 390 A.2d 896 (1978)." Commonwealth v. Duncan, 279 Pa. Super. 395, 398, 421 A.2d 257, 259 (1980). Appellant's first contention is without merit.

[ 368 Pa. Super. Page 459]

II.

Appellant's second contention is that the trial court erred in sua sponte vacating appellant's plea of nolo contendere based upon appellant's denial during an interview with a probation officer for the preparation of the pre-sentence report of sexual contact with the child victim, and appellant's election not to respond to the court's inquiry as to whether the denial had been made and whether there was in fact a factual basis for the plea. Appellant argues that regardless of what appellant said to the probation officer, the plea should not have been vacated because a plea of nolo contendere does not involve an admission of guilt even though the plea subjects the appellant to conviction and imposition of sentence as if a guilty plea had been entered. (Appellant's Brief at 15). We do not agree.

The entry and acceptance of plea agreements is governed by Pa.R.Crim.P. 319 which ...


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