Commonwealth v. Smith

586 A.2d 957, 402 Pa. Super. 257, 1991 Pa. Super. LEXIS 340
CourtSuperior Court of Pennsylvania
DecidedFebruary 8, 1991
Docket2963
StatusPublished
Cited by19 cases

This text of 586 A.2d 957 (Commonwealth v. Smith) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Smith, 586 A.2d 957, 402 Pa. Super. 257, 1991 Pa. Super. LEXIS 340 (Pa. Ct. App. 1991).

Opinions

MONTEMURO, Judge:

Following a trial by jury, appellant Robert Smith was convicted of three counts of corruption of a minor, one count of indecent exposure, two counts of indecent assault, and one count of open lewdness. Appellant’s timely post-trial motions were denied, and appellant was sentenced to a total term of imprisonment of three years minimum to six years maximum. Appellant brings this appeal from the judgment of sentence. On appeal, appellant claims that (1) the trial court erred in failing to dismiss the case under Pennsylvania Rule of Criminal Procedure 1100(a)(2); (2) the trial court erred in permitting Commonwealth witnesses to [259]*259testify as to hearsay statements made by the minor victim; (3) the trial court erred in allowing a social worker to testify as an expert in the field of child abuse, and permitting the witness to offer his opinion on whether appellant had sexually abused the victim; (4) the trial court erred in failing to charge the jury regarding the scrutiny of the minor child’s testimony; (5) the verdict was against the weight and sufficiency of the evidence; (6) the trial court erred in refusing appellant’s motion for judgment of acquittal on the basis that the criminal information did not correlate with the facts. Because we find that the trial court erred in admitting the out-of-court statements of the minor victim, we-reverse.

The instant convictions arise out of incidents which occurred between appellant and his granddaughter, S.L., during the summer of 1985. When S.L.’s mother (mother), noticed a change in S.L.’s attitude toward appellant and a decline in the child’s academic performance, mother.took S.L. to Children and Youth Services, where Mr. Ken Racowski, a social worker, interviewed the child. On the basis of his interview with S.L., Mr. Racowski concluded that the child had been molested by appellant and referred the case to the police. The instant charges were then brought.

Appellant challenges the trial court’s denial of his motion to dismiss on the basis of a Pa.R.Crim.P. 1100 violation. The version of Rule 1100 which was in effect at the time of appellant’s arrest provided:

Rule 1100. Prompt Trial

(a)(2) Trial in a court case, in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Pa.R.Crim.P. 1100.1 The complaint was filed against appellant on April 23, 1987; thus, the case should have been tried [260]*260by October 20, 1987. The case was not called for trial until August 1, 1988.

On October 20, 1987, the Commonwealth filed a motion for extension of the time for commencement of trial, pursuant to Rule 1100(c)(1), alleging excludable delay due to appellant’s omnibus pretrial motion. On November 6, 1987, the trial court entered an order extending the trial date to January 22, 1988. In the order, the court noted that the Commonwealth produced evidence establishing service of the motion for extension of time, and that appellant failed to answer the motion or appear for the hearing on the motion.

On January 22, 1988, the Commonwealth filed another motion for extension of time, alleging that the defendant’s various pretrial motions caused considerable delay. The motion requested an extension of time until April 22, 1988. The court entered an order on January 22, 1988, ordering appellant to show cause why the motion should not be granted and scheduling a hearing on the motion for February 17, 1988. The court entered an order on February 17, 1988, extending the trial date to April 22, 1988, and noting that defendant had failed to answer the Commonwealth’s motion to extend the time for trial or otherwise indicate a desire to oppose the extension. On the next day, February 18, 1988, however, another order was entered, indicating that defendant had appeared to answer the Commonwealth’s motion for extension, but nevertheless granting the “Commonwealth’s Motion for Extension of Time filed on January 22, 1988.” The order did not specify a new date for commencing trial.

During the pretrial period, appellant filed numerous requests and motions. On May 15, 1987, appellant filed a request for Bill of Particulars. On May 22, 1987, appellant filed a request for discovery. On June 8, 1987, appellant filed an omnibus pretrial motion, including a motion to quash the information, a motion to compel a psychiatric exam, and a motion for a pretrial conference. On July 14, 1987, appellant requested a continuance of the omnibus [261]*261hearing. On July 17, 1987, appellant filed a brief in support of the omnibus pretrial motion. On September 2, 1987, the omnibus hearing was held. On September 9, 1987, appellant filed a second brief in support of his omnibus pretrial motion. On December 7, 1987 the trial court entered an order denying appellant’s motion to quash the information, motion to compel a psychiatric exam and a portion of appellant’s discovery requests. The court also ordered that the records from the Children and Youth Services concerning the child be made available for in camera review. On January 15, 1988, after reviewing the Children and Youth Services Records, the court entered an order scheduling a hearing on appellant’s motion for production of the records. On February 5, 1988, the court ordered that the records be made available to the district attorney pursuant to Pa.R. Crim.P. 305(B)(1) and (2). At a hearing in March, it was revealed that appellant in fact had the requested documents in his possession. Thus, months of delay were incurred due to appellant’s motion for discovery of evidence which had been in his possession the entire time.

On March 11, 1988, appellant filed a motion to dismiss the case pursuant to Rule 1100(f); the version of Rule 1100(f) in effect at that time permitted a defendant, at any time before trial, to apply to the court for dismissal of the charges on the ground that Rule 1100 had been violated. In his motion to dismiss, appellant alleged that the Commonwealth did not serve him or his attorney with the October 20, 1987 motion, and that the motion did not set forth with specificity the reasons for the extension or dates to justify the extension of time. The motion to dismiss also appears to challenge the Commonwealth’s January 22, 1988 motion for an extension of time, and alleges that the Commonwealth did not commence trial by January 22, 1988 and failed to properly move for an extension of time.

On April 22, 1988, the Commonwealth filed a third motion for extension of time for commencing trial, alleging that appellant’s motion to dismiss under Rule 1100 and motion to suppress evidence were still outstanding, constituting con[262]*262siderable delay. The April 22 motion requested that the time for commencement of trial be extended to August 5, 1988.

On June 14,1988, the court entered an order denying appellant’s motion to dismiss and addressing the remainder of appellant’s pretrial motions which were still outstanding. The trial court found that appellant had been served with the Commonwealth’s October 20, 1987 motion to dismiss. Although the copy of the motion which was sent by certified mail to appellant’s attorney was misaddressed and thus returned to the Commonwealth marked “Addressee unknown,” the court found that the motion was served upon appellant himself, and thus service was proper under Rule 1100(c)(2).

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Cite This Page — Counsel Stack

Bluebook (online)
586 A.2d 957, 402 Pa. Super. 257, 1991 Pa. Super. LEXIS 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-smith-pasuperct-1991.