Appeal from the Judgment of Sentence of the Court of Common Pleas, Chester County, Criminal Division, at No. 484-85.
S. Lee Ruslander, West Chester, for appellant.
Thomas J. Wagner, Phoenixville, Assistant District Attorney, for Com., appellee.
Cavanaugh, Brosky and Montemuro, JJ.
[ 380 Pa. Super. Page 66]
This is an appeal from the judgment of sentence entered on May 29, 1987.
Appellant was convicted in a jury trial on four counts of corruption of minors, 18 Pa.C.S. § 6301(a), and sentenced to four consecutive three (3) to twenty-three (23) month terms of imprisonment. Appellant filed neither post-verdict motions, a motion for reconsideration of sentence, nor an appeal. After retaining new counsel, however, he did file a petition pursuant to the Post Conviction Hearing Act
[ 380 Pa. Super. Page 67]
("PCHA"), 42 Pa.C.S. § 9541, et seq.,*fn1 alleging various instances of trial counsel's ineffectiveness. After an evidentiary hearing, the PCHA court found ineffective representation as to sentencing only. Appellant was thus resentenced to four concurrent eleven and one-half (11 1/2) to twenty-three (23) month terms of imprisonment, and to the payment of restitution to the victim, with the amount to be determined at a future hearing.
Appellant now raises six assignments of error below, five of which cite trial counsel as ineffective. Appellant contends that trial counsel was ineffective: (1) in failing to file a motion to quash the corruption counts, which were added to the information after the preliminary hearing without leave of court; (2) in failing to request a bill of particulars specifying the conduct alleged to have corrupted the victim's morals; (3) in failing to object to certain portions of the prosecutor's closing pertaining to the corruption charges; (4) in failing to submit points for charge, and to take exception to the court's charge, pertaining to corruption of minors; and (5) in failing to file a motion in arrest of judgment based on the failure of the Commonwealth to prove corruption. Additionally, appellant assigns error to the sentencing court for its failure, upon resentencing: (a) to place reasons on the record in support of the second sentence; (b) to hold a hearing prior to the imposition of restitution; and (c) to permit the filing of a second motion for reconsideration of sentence.
Upon consideration of the record and the briefs of counsel, we find merit in appellant's second contention of ineffectiveness, with respect to the failure to obtain a bill of particulars, and, accordingly, we vacate and remand for a new trial on the four charges of corruption of minors.
The victim testified to the following facts at the preliminary hearing, and again at trial: The victim had been the girlfriend of appellant's son for four years, and was seventeen (17) at the time of the incidents from which the charges
[ 380 Pa. Super. Page 68]
derived. She made weekly visits to appellant's home to pick up produce for her family.
During the victim's weekly visit on September 18, 1984, appellant allegedly forced her to the floor, forcibly fondled, kissed, and performed oral sex upon her. After this alleged attack, the victim left immediately with her produce.
The victim again went to appellant's home, despite the September 18 incident, on October 16, November 20, and December 11 of 1984. On these dates, appellant allegedly, again, forcibly fondled and kissed her; additionally, he forcibly performed two more acts of oral sex upon her, and raped her twice. As in the first incident, the victim left with her produce, after appellant loaded the produce into her car.
Appellant was arrested on February 27, 1985, and charged in the criminal complaint with two counts of rape, two counts of deviate sexual intercourse, and four counts of indecent assault. After a preliminary hearing, and the waiver by appellant of a formal arraignment, the information was prepared, approved, and filed. It contained, however, four new charges, setting forth in the general language of the statute only, that appellant had corrupted the morals of a minor in each of the four incidents.*fn2 Appellant never received another preliminary hearing on the new
[ 380 Pa. Super. Page 69]
charges, and the charges were added without leave of court. Despite this, appellant's trial counsel did not file a motion to quash the information. He also did not request a bill of particulars to determine if there were any specific factual allegations, apart from those already contained in the other counts, upon which the Commonwealth intended to base its corruption case.
At trial, appellant testified in his own defense that he had never had sexual intercourse, forcibly or otherwise, with the victim, but had engaged in some consensual oral sex with the victim. As a result, in closing to the jury, the prosecution argued that, even if the jury found the Commonwealth's evidence to be too incredible, they nevertheless had to find appellant guilty of corruption if they "only believe(d) what this defendant told" them. The jury acquitted appellant on the rape, involuntary deviate sexual intercourse, and indecent assault counts, but found appellant guilty on all four corruption counts.
No post-trial motions were filed, and appellant was sentenced to serve consecutive terms of three (3) to twenty-three (23) months imprisonment on each corruption count. Neither a motion for reconsideration, nor an appeal from the judgment of sentence, was filed.
New counsel was hired, and a PCHA (Post Conviction Hearing Act) petition, alleging several grounds on which trial counsel was ineffective, was filed on March 31, 1986. On May 15, 1986, an evidentiary hearing on appellant's PCHA petition was held. The PCHA court found merit to appellant's ineffectiveness claim with respect to his sentence only. As a result, on May 1, 1987, appellant's PCHA petition was denied on all other grounds, but reconsideration of appellant's sentence was expressly granted, and, on May 29, 1987, the judgment of sentence now appealed from was entered.
As we are reversing on the basis of appellant's second contention of ineffectiveness, pertaining to the failure of trial counsel to request a bill of particulars, we shall be limiting our discussion to that contention, and to contention
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(1) only insofar as appellant's attack upon the information bears relevance to the bill of particulars question.
The standard of review for ineffectiveness claims is firmly settled. A defendant may not prevail upon a claim of ineffectiveness unless he is able to demonstrate that: (1) the issue underlying the ineffectiveness claim is of arguable merit; and (2) the course of action chosen by counsel had no reasonable basis, independent of hindsight, in the promotion of defendant's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Furthermore, assuming the defendant is able to meet this two-pronged test, he must then be able to demonstrate that the claimed ineffectiveness so prejudiced his defense that he did not receive a fair trial. Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985), aff'd 515 Pa. 153, 527 A.2d 973 (1987).
As a starting point, we accept as true the Commonwealth's position that contention (1), concerning trial counsel's failure to attempt to quash the information as defective, is without merit. Even presuming that the information could have been quashed, there would have been nothing to prevent the Commonwealth from rearresting appellant on the corruption charges, and, in point of fact, trial counsel testified at the PCHA evidentiary hearing that this is the precise reason he did not file a motion to quash. (N.T., May 15, 1986, pp. 56-57.)
Contention (2), however, pertaining to counsel's failure to request a bill of particulars as to the added corruption counts, presents an entirely different area of inquiry.
A motion for a bill of particulars does not question the sufficiency of an indictment or information, but, rather assumes its validity. It does not become part of the indictment or information, and therefore can neither remedy a defective indictment or information, nor render an indictment or information good on its face demurrable. Commonwealth v. Dimmig, 310 Pa. Super. 92, 456 A.2d 198, 201 (1983); Commonwealth v. Hershman, 171 Pa. Super. 134,
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A.2d 314, 317 (1952), aff'd 374 Pa. 311, 97 A.2d 77 (1953). The function of a bill of particulars, rather, is to give notice to the accused of the offenses charged in order to permit him to prepare a defense, avoid surprise, and be placed on notice as to any restrictions upon the Commonwealth's proof. Dimmig, supra; see also Commonwealth v. Bartman, 240 Pa. Super. 495, 367 A.2d ...