Form 15-2Motion to Dismiss for Failure to State an Offense, Duplicity
IN THE COURT OF COMMON PLEAS OF ______COUNTY, ______
COMMONWEALTH OF ______,)
)
Plaintiff,))
v.)CRIMINAL DIVISION
MN)
Defendant.)
DEFENDANT’S OMNIBUS PRE-TRIAL MOTION
FOR RELIEF WITH CITATIONS TO AUTHORITY
AND NOW COMES the Defendant, MN, by and through his attorney, ______, Esquire, and hereby files the following pre-trial motions, stating in support thereof as follows:
INTRODUCTION
On _____, a Criminal Complaint was filed against defendant, MN, based upon the affidavit of Detective _____ of the Central Park Police Department. The complaint alleged that Mr. N raped his niece vaginally in _____, when she was 15 years old, and anally in _____, when she was 16 years old. Exhibit A. Mr. N lives out of town and visits his siblings and parents every year, usually during the Fourth of July holiday.
A preliminary hearing was scheduled for _____, before District Justice _____ in Central Park, but postponed over defense objection until _____, because of the niece’s unwillingness to testify. On _____, immediately before the hearing started, the Commonwealth amended to allege that the _____ vaginal rape occurred in _____. Exhibit B, _____, Preliminary Hearing Transcript at 4-5.
At the hearing, the niece testified that she did not recall if Mr. N raped her or had any sexual contact with her in _____.1 Exhibit B at 14. She did testify that in _____, Mr. N helped her get her long-desired naval piercing, then escorted her to a hotel where he took photographs of her naked and then exposed himself and masturbated. There was no testimony about any sexual or improper contact in _____. The niece claimed that in _____, on the morning after playing a drinking game with her and her parents that the niece suggested, Mr. N had anal intercourse with her in her bedroom while her dog slept at the foot of her bed and her father and brother slept in their rooms across the hallway. Exhibit A at 32, 36. At the conclusion of the hearing, the case was held for court on one count of rape, for the _____ incident, despite the lack of evidence of any force or coercion, and several lesser charges.
A Criminal Information containing five counts was filed against the defendant by the Commonwealth of Pennsylvania. Exhibit C. The Information dropped the rape charge but contained the following charges, all alleged to have occurred from _____, (despite the lack of preliminary hearing testimony about anything occurring in _____) to _____:
Count One / Incest / 18 Pa. C.S. §4302Count Two / Terroristic Threats / 18 Pa. C.S. §2607(a)(1)
Count Three / Open Lewdness / 18 Pa. C.S. §5901
Count Four / Unlawful Contact with Minor / 18 Pa. C.S. §6318(2) [sic]
The defendant filed an Informal Discovery Request on _____ and followed up by filing a Formal Request for Discovery on _____.
MOTION FOR BILL OF PARTICULARS
The defense requests the following particulars with respect to each count of the Information:
The dates, times and locations of each act in furtherance of the charged offenses and the nature of such act.
The purposes of the bill of particulars are to enable a defendant to prepare for trial, to avoid surprise, and to enable the defendant to interpose the defenses of double jeopardy and the statute of limitations to this and future prosecutions. SeeCommonwealth v. Chambers, 528 Pa. 558, 580, 599 A.2d 630 (1991); Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972). Each of these purposes necessitates a bill of particulars in this case.
8. Mr. N is charged with incest, terroristic threats, open lewdness, unlawful contact with a minor and indecent exposure occurring on or about _____ through on or about _____. This alleges a continuous course of events over a one-year period even though the preliminary hearing testimony suggested two isolated episodes, one in _____ and the other in _____, but nothing in _____.
9. To defend against these charges, Mr. N is entitled to know which crime he committed and the specific date that crime was to have allegedly occurred. Under this set of facts, it will be difficult to defend against the charges because Mr. N will have to prepare a defense that covers a one- or two-year span—it is unclear which. This cannot be done and the case cannot be defended against unless the defense knows the specific dates on which alleged offenses are to have occurred.
10. If Mr. N were to be prosecuted again for activity that occurred in the same broad time period encompassed by each of the counts here, he could not interpose the defense of double jeopardy unless it were shown which activity formed the basis for the counts on which he was prosecuted.
11. For all these reasons, a bill of particulars is necessary in this case.
MOTION TO QUASH/DISMISS COUNT FOUR
12. Count Four of the Information charges Mr. N with unlawful contact with a minor: “The actor intentionally contacted a minor namely, Jane Doe, a minor, age 16 while the actor or the minor was within this Commonwealth for the purpose of engaging in the activity of anal intercourse in violation of Section 6318(2) [sic] of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. §6318(2) [sic], as amended.” Section 6318 has no subsection (2), but it does have a subsection (a)(2). Subsection (a)(2) prohibits contact with a minor for the purpose of committing the offense of open lewdness.
13. Although the Information does include an open lewdness count, Count Three, Count Four does not refer to that count. Instead, it specifies contact “for the purpose of engaging in the activity of ‘anal intercourse.’” This is not a prohibited activity under Section 6318.
14. The information does refer to sexual intercourse at Count One, which could include anal intercourse, but Count One charges incest, a crime under Chapter 43 of the Crimes Code. The unlawful contact statute does not apply to contact for the purpose of committing incest. It enumerates a number of prohibited activities, none of which is incest, and none of which refers to Chapter 43. See 18 Pa.C.S.A. §6318(a)(1)(referring to offenses enumerated in Chapter 31); §6318(a)(2)(referring to Section 5901, open lewdness); §6318(a)(3)(referring to Section 5902, prostitution); §6318(a)(4)(referring to Section 5903, criminal obscenity); §6318(a)(5)(referring to Section 6312, sexual abuse of children); §6318(a)(6)(referring to sexual exploitation of children, Section 6320). See Commonwealth v. Wojdak, 502 Pa. 359, 368, 466 A.2d 991, 996 (1983) (to make out prima facie case, Commonwealth must introduce evidence supporting the probable existence of each element of the offense charged and that a crime has been committed).
15. The age of consent in the Commonwealth is 16 years and is codified at 18 Pa. C.S. §3122.1. Mr. N has not been charged with statutory sexual assault, 18 Pa. C.S. §3122.1, because the victim was 16 years old at the time of the alleged incident. Anal intercourse with a person 16 years old or older is not a crime if the act is voluntary. A female’s consent to sexual intercourse excludes the possibility of a conviction for the offense of rape or unlawful contact with a minor, and makes the act of intercourse criminally cognizable only if the consenting female is under the age of 16. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) (overruled on other grounds).
16. For the reasons set forth above, Count Four of the Information should be dismissed.
MOTION TO QUASH/DISMISS COUNTS ONE THROUGH FIVE
17. As shown on the chart set forth in the Introduction, the Information charges Mr. N with incest, terroristic threats, open lewdness, unlawful contact with a minor and indecent exposure occurring on or about _____ through on or about _____. In other words, rather than charging each offense as a separate count, the Commonwealth has chosen to charge these offenses as “continuing offenses.” This type of charge is duplicitous and should be dismissed.
18. In Commonwealth v. Levy, 146 Pa. Super. 564, 23 A.2d 97 (1941), the defendant was charged with sodomizing an 11-year-old boy and was convicted of two counts of sodomy. The victim was unable to testify to any fixed dates as to when he first met the defendant and when he was alone in a car with the defendant. Id. at 567. The court held the date of the commission of the alleged offense must be “fixed with reasonable certainty,” because “where a particular date or day of the week is not of the essence of the offense, the date laid in the indictment is not controlling, but some other reasonably definite date must be established with sufficient particularity to advise the jury and the defendant of the time the Commonwealth alleges the offense was actually committed.” Id. at 570 (emphasis added).
19. In this case, it appears that the Commonwealth should be able to identify specific offenses and dates on which they occurred, but nonetheless has elected to charge the offenses as a vague continuing course of conduct. This violates the notions of fundamental fairness and due process embedded in our legal system and does not allow a defendant to present a comprehensive defense. Article I, Section 9 of the Pennsylvania Constitution states:
In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him … nor can he be deprived of his life, liberty, or property, unless the judgment of his peers or the law of the land.
It is a long standing tenet of Pennsylvania jurisprudence that “the law of the land” in Article I, Section 9 is synonymous with “due process of law.” Commonwealth v. Devlin, 460 Pa. 508, 514, 333 A.2d 888 (1975). See also Commonwealth v. Jackson, 457 Pa. 79, 319 A.2d 161 (1974); Craig v. Kline, 65 Pa. 399, 413, 1870 Pa. LEXIS 244 (1870). Under both the Pennsylvania and United States Constitutions, a defendant is denied due process of law if he or she is substantially denied an opportunity to present a defense. SeeCommonwealth v. Jester, 256 Pa. 441, 100 A. 993 (1917); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908).
20. Although charging child sex abuse crimes as continuing offenses has been approved, the children in those cases were significantly younger than 16, the age of the victim in the present case.2See, e.g., Commonwealth v. Niemetz, 282 Pa. Super 431, 440, 422 A.2d 1369, 1373 (1980) (court approved an Information charging sex offenses between 1972 and August 1977 on the ground that it would not serve the ends of justice to permit a perpetrator to sexually abuse a child between the ages of 5 and 10 years with impunity because the child failed to record the details in a daily diary.); Commonwealth v. Groff, 378 Pa. Super. 353, 548 A.2d 1237 (1988) (the victim testified the abuse occurred when appellant lured her into his bedroom while she was wearing a bathing suit, therefore the abuse could have taken place any warm day between August 1983 and September 1985 when she was between the ages of four and six years old.). Further, in each of those cases, the defendant had continuous contact with the victim over a long period of time, so that it was understandably difficult for the young victims to specify on which dates the illegal activity occurred. The present situation is quite different. The alleged victim discussed here is mature and intelligent, and her uncle saw her only on isolated occasions, two to three days every year. She and the Commonwealth should be able to specify when the illegal activity occurred. (She probably is uncertain about when and whether she had sexual contact with her uncle because the allegations are fantasy, not an account of true events.)
21. It is not an absolute requirement that the Commonwealth establish an exact date of offenses in all cases; rather, the rights of the accused must be considered against “the nature of the crime and the age and condition of the victim.” Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975). Here, although four of the five crimes charged in the Information are sex offenses or related, the victim is 16 years old with no indication of any problems, mental or otherwise, that may affect her memory. Therefore, the Commonwealth should have been able to articulate the specific dates on which the alleged offenses occurred rather than simply charge them as a vague continuing course of conduct as they did here. The Commonwealth has created a fundamentally unfair burden for Mr. N to overcome.
22. The charges in Counts One through Five also fail because they are duplicitous. Duplicity is the joining in a single count of two or more distinct and separate offenses. Commonwealth v. Bidner, 282 Pa. Super. 100,109 n.6, 422 A.2d at 852 n.6. The rule against duplicitous informations is set forth in Rule 563(B) of the Rules of Criminal Procedure: “There shall a separate count for each offense charged.” The rule is designed to provide proper notice to the defendant of the accusation against him and to ensure that the jury unanimously agrees to convict the defendant of a single offense. A general verdict on a single count which contains multiple offenses may also lead to double jeopardy problems in the event of subsequent prosecution.
23. By charging Mr. N with incest, terrorist threats, open lewdness, unlawful contact with a minor and indecent exposure as continuing offenses over a period of years, the Commonwealth has included at least two episodes, the _____ (or _____) hotel episode and the _____ niece’s bedroom episode, in each count, thereby making each count duplicitous. For example, suppose that at trial the victim testifies that Mr. N had sexual intercourse with her, exposed his genitals to her or threatened to commit a crime of violence against her with the intent to terrorize her in _____ (or _____) through _____, describing to the jury separate offenses on each of those occasions. It is possible that some members of the jury could believe her as to the _____ or _____ events, but not the _____, and others could disbelieve the _____ or _____ events, but believe the _____ story. The jury then could convict Mr. N of a count, even though they were not unanimous that the offenses had occurred at any one of those numerous times. The Commonwealth is unfairly attempting to hide its proof problems caused by the unreliability of its witness by lumping multiple alleged offenses together in each substantive count. This procedure is extremely prejudicial to the defendant and constitutes a fatal pleading error in the Commonwealth’s Information.
24. For the reasons set forth above, the defendant respectfully requests that Counts One through Five be dismissed for failing to specify a date of commission and for duplicity.
Respectfully submitted,
______
Attorney for MN
Footnotes:
1The niece does not suffer from any mental impairments. In fact, the discovery indicates that she is a high school honor student and plans to open a dance studio when she graduates.
2The niece turned 17 in _____.