Commonwealth v. Cruz

512 A.2d 1270, 355 Pa. Super. 176, 1986 Pa. Super. LEXIS 11487

• Court: Supreme Court of Pennsylvania
• Decided: July 22, 1986
• Docket: 2535
• Status: Published

Opinions

WIEAND, Judge:

This is an appeal by the Commonwealth from an order sustaining a defense demurrer to a charge that Ralph Isreal Cruz had escaped on June 12, 1973 by failing to return to the State Correctional Institution at Dallas after a home furlough. The trial court sustained the demurrer and dismissed the charge because the information, on its face, failed to disclose that the applicable statute of limitations had been tolled.

The issue presented by this appeal is one of law. The trial court sustained the defense demurrer for reasons which did not pertain in any way to the guilt or innocence of the accused. Such an order is appealable by the Commonwealth. See: United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).

The evidence at trial established that after Cruz had failed to return to the prison at the end of his furlough, a warrant for his arrest was issued on June 15, 1973.¹ Cruz, upon leaving the prison at the start of his furlough, trav-elled to Chester where he stayed for a period of two days. He then borrowed money to buy an airline ticket and flew to Puerto Rico. There, he lived with his mother for approximately four years, after which he moved into the home of and lived with a woman who bore him two children. On December 20, 1984, he flew to Chicago where, on or about April 15, 1985, he was taken into custody by the Chicago police. A complaint charging Cruz with escape was thereafter signed, an arrest warrant was issued, and he was returned to Pennsylvania. An information charging him with escape was filed on June 11, 1985.

A prosecution for the offense of escape must be commenced within two years after its commission. 42 Pa.C. S.A. § 5552(a).² “[A] prosecution is commenced either when an indictment is found or an information under § 8931(b) is issued, or when a warrant, summons or citation is issued, if such warrant, summons or citation is executed without reasonable delay.” 42 Pa.C.S.A. § 5552(e).³ The period of limitation, however, does not run while “the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth[.]” 42 Pa.C.S.A. § 5554(1).⁴

The evidence offered by the Commonwealth in this case was clearly sufficient to establish a tolling of the statute from June 12, 1973 until April 15, 1985.⁵ It would seem, therefore, that the trial court’s order sustaining a defense demurrer to the evidence on grounds that prosecution was time barred was in error.

The trial court suggests, however, that the information was defective because it failed to contain averments of fact sufficient to show a tolling of the statute of limitations. “The fact that the Commonwealth did not allege in the [information] that it would seek to toll the statute of limitations is of no consequence [if] there was no prejudice to the appellant____ As long as a defendant, some reasonable time before trial, is appraised that the Commonwealth will seek to toll the statute of limitations, the due process requirements of notice are met.” Commonwealth v. Stock-ard, 489 Pa. 209, 217-218, 413 A.2d 1088, 1092 (1980).⁶

In the instant case, it is clear that appellant was not prejudiced by the failure of the Commonwealth to allege in the information that it would seek to toll the statute of limitations. He was fully aware of the facts relied on by the Commonwealth. Indeed, they were recited in the affidavit submitted in support of the request for an arrest warrant. See: Commonwealth v. Stockard, supra.

Moreover and in any event, the failure of the Commonwealth to allege in the information the exception upon which it was relying to toll the statute of limitations was waived by appellant’s failure to raise it pre-trial. A challenge to the legitimacy of an information must be raised pre-trial. See: Pa.R.Crim.P. 306, 9020. A failure to state a ground for attacking the information in a pre-trial motion to quash results in a waiver of that ground. It will not be considered for the first time after a not guilty plea has been entered and a jury sworn. See: Commonwealth v. Gemelli, 326 Pa.Super. 388, 397-398, 474 A.2d 294, 299 (1984); Commonwealth v. Kimble, 323 Pa.Super. 499, 510, 470 A.2d 1369, 1375 (1984); Commonwealth v. Emmel, 194 Pa.Super. 441, 448, 168 A.2d 609, 612 (1961). See also: Commonwealth v. Williams, 252 Pa.Super. 587, 588, 384 A.2d 935, 935-936 (1978). An alleged defect in the information cannot properly be raised by a demurrer to the evidence at the conclusion of the Commonwealth’s evidence. When the trial court sustained a defense demurrer in this case because of the Commonwealth’s failure to allege in the information the grounds on which it would rely to toll the statute of limitations, the court fell into error. This was particularly so in view of the Commonwealth’s trial evidence, received without objection, that appellant had been continuously absent from Pennsylvania after his escape and before his subsequent apprehension in Illinois.

Reversed and remanded for a new trial. Jurisdiction is not retained.

BECK, J., files a concurring and dissenting opinion.

1 . Although there is testimony referring to this warrant, a copy thereof is not a part of the record. We do not rest our decision, therefore, on the early issuance of this warrant. A new warrant for appellant’s arrest was issued upon his apprehension in Chicago in 1985.

2 . The provisions of § 5552(a) are similar to the law in effect when Cruz escaped. See: Act of December 6, 1972, P.L. 1482, § 1, 18 Pa.C.S.A. § 108(b)(2), repealed by Act of July 9, 1976, P.L. 586, § 4(a), effective June 27, 1978.

3 . This provision is similar to the Act of December 6, 1972, P.L. 1482, § 1, 18 Pa.C.S.A. § 108(e), repealed by Act of July 9, 1976, P.L. 586, § 4(a), effective June 27, 1978.

4 . This provision is identical to the Act of December 6, 1972, P.L. 1482, § 1, 18 Pa.C.S.A. § 108(f)(1), repealed by Act of July 9, 1976, P.L. 586, § 4(a), effective June 27, 1978.

5 . Cruz’s home furlough commenced on June 6, 1973, and, according to the Commonwealth’s evidence, he absconded to Puerto Rico two days later.

6 . The trial court observed correctly that this Court had previously held that "where the Commonwealth seeks to toll the statute of limitations by establishing one of the enumerated exceptions, it must allege the exception in the [information].” Commonwealth v. Bender, 251 Pa.Super. 454, 459, 380 A.2d 868, 870 (1977). See also: Commonwealth v. Cody, 191 Pa.Super. 354, 359, 156 A.2d 620, 623 (1959) (“an indictment is fatally defective which shows on its face that it was found more than two years after the commission of the offense, and fails to allege, that the defendant had not been an inhabitant or usual resident of this State at any time before indictment.’’); Commonwealth v. Creamer, 236 Pa.Super. 168, 345 A.2d 212 (1974). These decisions, however, are at variance with the law as stated by the Supreme Court of Pennsylvania in Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980). Therefore, prior decisions of the Superior Court can no longer be said to reflect the law in this Commonwealth. See also: Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1982).