Commonwealth v. Libengood

152 A.3d 1057

COMMONWEALTH of Pennsylvania, Appellee

v.Jeffrey P. LIBENGOOD, Appellant

No. 593 MDA 2016

Superior Court of Pennsylvania.

Submitted September 26, 2016

FILED DECEMBER 16, 2016

Frank R. Cori, Orwigsburg, for appellant.

John T. Fegley, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

BEFORE: PANELLA, OLSON and PLATT,^* JJ.

OPINION BY OLSON, J.:

Appellant, Jeffrey P. Libengood, appeals from the judgment of sentence entered on January 25, 2016, as made final by the denial of his post-sentence motion on March 14, 2016. In this case of first impression, we hold that a defendant waives any objection to a bill of particulars furnished by the Commonwealth when he or she fails to file a timely motion pursuant to Pennsylvania Rule of Criminal Procedure 572(C). As we also conclude that Appellant's sentence was legal, we affirm.

The factual background and procedural history of this case are as follows. During 2014, Appellant repeatedly sexually abused S.D. On June 18, 2015, the Commonwealth charged Appellant via criminal information with four counts of aggregated indecent assault of a child,¹ two counts of rape of a child,² two counts of statutory sexual assault,³ involuntary deviate sexual intercourse with a child,⁴ corruption of minors,⁵ endangering the welfare of a child,⁶ and indecent assault of a child.⁷

On or about June 22, 2015, Appellant waived his right to arraignment. On or about July 2, 2015, Appellant requested a bill of particulars from the Commonwealth. When the Commonwealth failed to respond to that request, Appellant filed a motion on July 16, 2015 seeking a bill of particulars outlining the exact dates of the alleged assaults. The trial court granted the motion and ordered the Commonwealth to provide a bill of particulars. On July 23, 2015, the Commonwealth furnished its bill of particulars which stated, in relevant part, "[t]he alleged incidents in the above captioned [case] occurred at various times between January 1, 2014 and December 20, 2014 as stated in the criminal complaint and criminal information." Bill of Particulars, 7/23/15, at 1.

On October 28, 2015, Appellant filed a motion in limine seeking to bar S.D.'s testimony because the Commonwealth's bill of particulars was insufficient. The trial court orally denied the motion that same day. On October 29, 2015, Appellant was convicted of two counts of aggregated indecent assault of a child, rape of a child, two counts of statutory sexual assault of a child, corruption of minors, endangering the welfare of a child, and indecent assault of a child. The trial court sentenced Appellant to 10 to 20 years' imprisonment for the rape of a child conviction. The prison sentences imposed for the remaining convictions were ordered to run concurrently with the rape of a child sentence. On February 4, 2016, Appellant filed a post-sentence motion. On March 16, 2016, the trial court denied the post-sentence motion. This timely appeal followed.⁸

Appellant presents two issues for our review:

1. Whether the trial court erred in dismissing [Appellant's m]otion in [l ]imine e after the Commonwealth failed to provide full and complete responses to his request and court order for more specific dates and times for the alleged incidents, and simply charged a one[-]year time frame, precluding his ability to adequately defend himself?

2. Whether the trial court erred in applying the mandatory minimum sentence provisions of 42 Pa.C.S.[A.] § 9718(a)(1) in light of Commonwealth v. Wolfe [, 106 A.3d 800 (Pa. Super. 2014), aff'd , 140 A.3d 651 (Pa. 2016) ]?

Appellant's Brief at 3–4.

In his first issue, Appellant argues that the trial court erred in denying his motion in limine to bar S.D.'s testimony. In that motion, Appellant argued that the Commonwealth's failure to provide the exact dates upon which the assaults occurred in its bill of particulars warranted barring S.D.'s testimony. Although Appellant's motion was titled a motion in limine , it was in fact a motion pursuant to Pennsylvania Rule of Criminal Procedure 572(C). We review a trial court's Rule 572 decision for an abuse of discretion. SeeCommonwealth v. Mercado , 437 Pa.Super. 228, 649 A.2d 946, 959 (1994) (citation omitted). Moreover, to the extent that "this case presents an issue of interpretation of the relevant rules of criminal procedure ... our standard of review is de novo and our scope of review is plenary." Commonwealth v. Hann , 622 Pa. 636, 81 A.3d 57, 65 (2013) (citation omitted).

Rule 572 provides that:

(A) A request for a bill of particulars shall be served in writing by the defendant upon the attorney for the Commonwealth within [seven] days following arraignment. The request shall promptly be filed and served as provided in Rule 576.

(B) The request shall set forth the specific particulars sought by the defendant, and the reasons why the particulars are requested.

(C) Upon failure or refusal of the attorney for the Commonwealth to furnish a bill of particulars after service of a request, the defendant may make written motion for relief to the court within [seven] days after such failure or refusal. If further particulars are desired after an original bill of particulars has been furnished, a motion therefor may be made to the court within [five] days after the original bill is furnished.

(D) When a motion for relief is made, the court may make such order as it deems necessary in the interests of justice.

Pa.R.Crim.P. 572. As noted above, in this case the Commonwealth provided its bill of particulars on July 23, 2015. Appellant did not file his motion in limine until October 28, 2015—more than 90 days after the bill of particulars was furnished.

The trial court denied Appellant's motion on two grounds. First, the trial court found that Appellant failed to provide a compelling reason why he failed to seek relief under Rule 572(C) within five days. Second, the trial court found that even if it were to consider the merits of Appellant's motion, he was not entitled to relief. As we ascertain no abuse of discretion by the trial court in denying the motion because of Appellant's failure to comply with the five-day time limit proscribed by Rule 572(C), we decline to address the trial court's alternative holding on the merits.

"To the extent practicable, [the Pennsylvania Rules of Criminal Procedure] shall be construed in consonance with the rules of statutory construction." Pa.R.Crim.P. 101(C). To that end, when interpreting a rule of criminal procedure, our goal is to ascertain the intent of our Supreme Court. SeeCommonwealth v. Baker , 547 Pa. 214, 690 A.2d 164, 167 (1997). "[T]he best indication of said intent is the plain language of a rule." Commonwealth v. Williams , 125 A.3d 425, 428 (Pa. Super. 2015) (internal alterations and citation omitted). When the plain language of a rule is ambiguous, we may consider, inter alia , the object to be attained when ascertaining our Supreme Court's intent. See 1 Pa.C.S.A. § 1921(c)(4). Furthermore, rules that relate to the same class of things should be construed in pari materia . See 1 Pa.C.S.A. § 1932.

In this context, the text of Rule 572(C) is ambiguous. Although the rule specifies that a motion for a more specific bill of particulars must be filed within five days of the Commonwealth furnishing its bill of particulars, the rule does not specify a consequence for failing to file a timely motion requesting a more specific bill of particulars. Accordingly, we turn to other tools of statutory interpretation.

Pennsylvania Rules of Criminal Procedure 572 and 579 both address the same class of things, i.e. , motions filed by the defendant prior to trial. Thus, they must be read in pari materia . See 1 Pa.C.S.A. § 1932. Under Rule 579, the defendant's omnibus pretrial motion generally must be filed within 30 days of arraignment. See Pa.R.Crim.P. 579(A). As this Court has explained, failure to file an omnibus pretrial motion within that time period results in waiver of any issues raised in an untimely omnibus pretrial motion. SeeCommonwealth v. Borovichka , 18 A.3d 1242, 1248 (Pa. Super. 2011). We ascertain no reason why filing a late Rule 572(C) motion should be treated differently than filing a late omnibus pretrial motion. Instead, reading the two rules in pari materia indicates that our Supreme Court intended for a defendant to waive any objection to a bill of particulars furnished by the Commonwealth if he or she fails to file a timely motion under Rule 572(C).

We next consider the object to be obtained in setting deadlines for the filing of motions by a defendant prior to trial. The time requirements included within the Pennsylvania Rules of Criminal Procedure for filing certain motions are critical to the efficient administration of justice. Specifically, the time requirements permit trial courts sufficient time to consider various legal issues and rule thereon while ensuring the defendant has a speedy trial. Furthermore, failure to file a timely motion is likely to result in a waste of judicial resources. This case provides an example of that dynamic. If the trial court granted Appellant's motion and barred S.D.'s testimony, there is little question that the Commonwealth would have immediately appealed that order to this Court. That appeal necessarily would have been filed literally minutes before the jury panel was to be sworn and the case begun. This would have resulted in the jurors, who were waiting in the jury room during argument on Appellant's motion, being sent home. Although in some instances such delayed proceedings are unavoidable, as the trial court aptly noted in its Rule 1925(a) opinion in this case, the only explanation Appellant's counsel provided for the untimely filing of the Rule 572(C) motion was trial tactics. Trial tactics cannot excuse a blatant violation of the applicable court rules. As such, we conclude that the object to be obtained in setting deadlines for the filing of motions prior to trial weighs in favor of finding...