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COMMONWEALTH PENNSYLVANIA v. H. KENNETH GROFF (02/03/88)

submitted: February 3, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
H. KENNETH GROFF, APPELLANT



Appeal from the Judgment of Sentence of July 30, 1987, in the Court of Common Pleas of Lancaster County, Criminal Division at No. 1441 of 1986.

COUNSEL

William W. Campbell, Lancaster, for appellant.

Henry S. Kenderdine, Jr., District Attorney, Lancaster, for Com., appellee.

Beck, Kelly and Johnson, JJ.

Author: Beck

[ 378 Pa. Super. Page 356]

H. Kenneth Groff was found guilty of sexually abusing a child and was sentenced to five to fifteen years imprisonment. The principal issue raised on appeal is whether his trial lawyer provided ineffective assistance of counsel by failing to preserve the following questions for appellate review: 1) whether the defendant was denied due process of law by the Commonwealth's failure to prove the date of his crimes with reasonable certainty; 2) whether the Commonwealth failed to present sufficient evidence that the crimes occurred on a date within the statute of limitations period; 3) whether the statute of limitations defense presented a question of fact for the jury; and 4) whether the defendant was denied his constitutional right to confront the child witness.

We discuss the first, second, and fourth allegation of ineffectiveness although we find that they are without arguable merit. We conclude, however, counsel was ineffective in failing to preserve the third issue, i.e., whether the statute of limitations defense presented a question of fact for the jury. Accordingly, we vacate the judgment of sentence and remand for a new trial.*fn1

Appellant Groff owned and occupied a four bedroom house in Lancaster County. Between August, 1983 and

[ 378 Pa. Super. Page 357]

September, 1985, appellant rented three of the bedrooms to Tammy B., a divorced woman with four children. One of the children, Leann P., was the daughter of Tammy B. and Tim P. Leann was four years old when her mother first moved into appellant's residence and six years old when her mother left appellant's residence. Leann lived with her mother, appellant, and the other children during the school week. On weekends, Leann would visit with her father Tim P., her father's second wife, Melissa P., and her paternal grandmother, Lovice R.

In March, 1986, six months after Tammy and the children relocated, Tim P. sought primary custody of Leann. During the course of the custody proceedings, Lovice R. alleged that she had reason to believe that Leann had been sexually abused while living with Tammy B. and the appellant. Leann was then interviewed by a social worker from the Lancaster County Children and Youth Agency which referred the matter to the state police for further investigation. On June 10, 1986, appellant was arrested and charged with statutory rape, indecent assault, and corruption of minors. He was tried by a jury on November 19th and 20th of 1986.

As its first witness at trial, the Commonwealth called Leann, who was seven years old at the time of the trial. Leann testified that appellant had invited her into his bedroom, touched her vagina and chest, and had sexual intercourse with her. She repeatedly stated that these acts took place on only one occasion. She had no idea of the date when the abuse occurred, and could only say that she was living in appellant's house at the time. She also stated that she had been wearing a bathing suit on the day she was molested.

Lovice R. testified that she noticed a change in Leann's personality during the summer of 1985. The child became very quiet, she seemed afraid, and she did not wish to return to appellant's residence when her weekend visits were over. Leann "would always say that her little pee-pee hurt." R. 137a. On one occasion, Leann allegedly stated

[ 378 Pa. Super. Page 358]

    that "Kenny was doing bad things." R. 138a. Lovice also testified that Leann began to kiss her on the lips for the first time in the summer of 1985. However, on cross-examination, Lovice conceded that she began noticing changes in Leann's personality as early as August, 1983. She also admitted that she made no effort to notify anyone of the alleged abuse while Leann was living with the appellant.

Melissa P. confirmed that during the summer of 1985, when Leann visited her paternal relatives, she would resist returning to the residence that she and her mother shared with the appellant. Melissa P. stated that when Leann would be driven home, the child would scream and attempt to lock herself in the car.

The Commonwealth's remaining witnesses did not present evidence relating to the time of the offenses. At the close of the prosecution case, defense counsel demurred. Counsel asked the court to rule as a matter of law that the Commonwealth had failed to introduce sufficient evidence to establish that any crimes were committed within the statute of limitations period. The trial court denied the demurrer.

The defense case consisted primarily of appellant testifying on his own behalf. During closing argument, defense counsel urged the jury to acquit the defendant on the ground that any crimes which he may have committed took place outside the statute of limitations period. The trial court interrupted counsel and instructed the jury to disregard this argument. At the close of the trial, the jury found appellant guilty on all counts, and on July 30, 1987, the court imposed a sentence of five to fifteen years imprisonment.*fn2

Appellant's trial counsel filed post-verdict motions which were denied. Appellant obtained new counsel for purposes

[ 378 Pa. Super. Page 359]

    of an appeal and filed a timely notice of appeal with this court.

Appellant, with the assistance of his new counsel, now asserts that his trial counsel did not provide effective representation. As Justice Flaherty recently explained:

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice, i.e. had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). We must consider appellant's specific allegations of ineffectiveness with reference to this standard.

We note that appellant's first three ineffectiveness claims all deal with legal problems created by the Commonwealth's inability to fix the exact date of the crimes. Although these claims are interrelated, we must discuss trial counsel's failure to preserve each issue separately in order to avoid confusion. Appellant's first issue concerns whether the charges against him were too vague inasmuch as the Commonwealth alleged that he committed the offenses at some time during a lengthy period, and did not specify the date of the offenses. He further contends that the imprecise time frame prevented him from preparing a defense to the crimes and therefore violated due process.

On the other hand, appellant's second and third issues concern whether the charges against him were too stale. He contends that the prosecution of his crimes was not

[ 378 Pa. Super. Page 360]

    initiated within the statute of limitations period. This statute of limitations defense takes two forms. As his second issue, appellant argues that the evidence produced at trial was insufficient as a matter of law to prove that the prosecution was not time barred. As his third issue, appellant argues in the alternative that if the Commonwealth's evidence was not legally insufficient, the question of whether the prosecution was time barred should have been submitted to the jury, and that the judge erred by making this determination himself. We reject appellant's first and second claim, and we vacate judgment of sentence on the basis of the third claim.

I.

Appellant faults his trial counsel for failing to preserve the issue of whether the Commonwealth denied him due process of law. More specifically, appellant maintains that the Commonwealth violated his rights under Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975), which held that the prosecution must fix the date when an alleged offense occurred with reasonable certainty. A Devlin claim is a form of motion in arrest of judgment, Commonwealth v. Fanelli, 377 Pa. Super. 555, 560, 547 A.2d 1201, 1203 (1988) (en banc); if the claim is meritorious, the proper remedy is to vacate judgment of sentence and discharge the defendant. See Commonwealth v. Thek, 376 Pa. Super. 390, 402-403, 546 A.2d 83, 90 (1988). We conclude, however, that appellant's claim is without arguable merit.

In Commonwealth v. Devlin, the defendant was accused of having sodomized a mentally retarded adult with the mental ability of a first or second grade child and the emotional stability of an even younger child. The only proof offered at trial was that the crime occurred at some unspecified time during the fourteen month period from February, 1971 to April, 1972. Although this entire period fell within the statute of limitations, the defendant argued that the Commonwealth's allegation as to the time of the criminal episode was so vague that he was effectively

[ 378 Pa. Super. Page 361]

    precluded from preparing a defense to the charges against him. The Pennsylvania Supreme Court agreed, and found that the defendant's trial had been so fundamentally unfair as to be inconsistent with due process.*fn3 The Court, however, declined to adopt a per se rule concerning the length of the time period in which the Commonwealth must establish that ...


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