Com. v. Patz, K.

J-A23036-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KELLY EUGENE PATZ :

:

Appellant : No. 1570 WDA 2024

Appeal from the PCRA Order Entered December 11, 2024

In the Court of Common Pleas of Warren County Criminal Division at

No(s): CP-62-CR-0000334-2019

BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and BENDER, P.J.E.

CONCURRING AND DISSENTING MEMORANDUM BY BENDER, P.J.E.:

FILED: April 10, 2026

I concur in the result reached by the Majority in its disposition of

Appellant’s first issue concerning the sufficiency of the evidence. However, I

disagree with the Majority’s resolution of Appellant’s second issue involving

the dates in the criminal information and the jury instruction regarding the

scope of the periods outlined in the criminal information. Therefore, I

respectfully dissent.

In his second issue, Appellant inquires:

Whether the PCRA court erred in finding appellate counsel was

effective in failing to adequately brief and present argument

concerning the dates of the criminal information and improper

reinstruction to the jury on the scope of the periods outlined in

the criminal information?

J-A23036-25

Appellant’s Brief at 6. Appellant argues that his appellate counsel was

ineffective for waiving his claim that the trial court erroneously instructed the

jury “that it was not bound by the periods included in the criminal

information….” Id. at 41. Specifically, during its deliberations, the jury sent

a question to the trial court that asked, “Are we bound by the dates listed with

the charges?” Question from Jury, 6/3/21, at 1 (single page). In a note,

handwritten on the same page as the question, the court responded:

The qualifying language of “on or about” indicates that the dates

set forth are approximate dates of the period in question. Please

be mindful regarding the age of the alleged victim set forth in the

elements of the offenses.

Id.1 Appellant’s counsel objected to the court’s providing this instruction,

arguing that the jury should be limited to considering only the date ranges set

forth in the criminal information. See N.T. Trial, 6/2/21, at 484-87. However,

the court overruled that objection and provided the above response to the

jury. Id. at 487. On direct appeal, Appellant’s counsel raised an issue

challenging the court’s instruction in response to the jury’s question, but we

deemed it waived based on counsel’s failure to meaningfully develop an

argument on that issue. Commonwealth v. Patz, 1 WDA 2022, 2023 WL

153190, *6 (Pa. Super. filed January 11, 2023)(unpublished memorandum).

____________________________________________

1 Given that the document setting forth the jury’s question, which includes the

court’s handwritten response thereto, was filed and docketed in the certified

record, I disagree with the Commonwealth’s argument that “[t]his claim is

waived because no such instruction is of record” and the “instruction actually

given was not transcribed.” Commonwealth’s Brief at 16.

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Appellant now contends that his appellate counsel acted ineffectively by

waiving this claim, because this Court would have determined that the trial

court’s response to the jury’s question violated Appellant’s due process rights.

Appellant’s Brief at 47. Before delving into the specifics of Appellant’s

argument, I note that “[a] question regarding whether a due process violation

occurred is a question of law for which the standard of review is de novo and

the scope of review is plenary.” Commonwealth v. Tejada, 161 A.3d 313,

317 (Pa. Super. 2017) (citing Commonwealth v. Smith, 131 A.3d 467, 472

(Pa. 2015)). Additionally, this Court has explained:

It is the duty of the prosecution to “fix the date when an alleged

offense occurred with reasonable certainty….” Commonwealth

v. Brooks, 7 A.3d 852, 857-58 (Pa. Super. 2010) (citation

omitted). “The purpose of so advising a defendant of the date

when an offense is alleged to have been committed is to provide

him with sufficient notice to meet the charges and prepare a

defense.” [Id.] at 858 (citing Commonwealth v. Gibbons, 784

A.2d 776 (Pa. 2001)).

Our Supreme Court explained that the Commonwealth’s inability

to “fix” the date of the offense in its prosecution of an alleged

crime implicates the defendant’s rights to due process. See

generally Commonwealth v. Devlin, 333 A.2d 888, 890-92

(Pa. 1975); see also Commonwealth v. Levy, 23 A.2d 97 ([Pa.

Super.] 1941). Under the Federal Constitution, if the opportunity

to defend is inadequate, the defendant is denied due process of

law. Devlin, 333 A.2d at 891 (citation omitted). Additionally,

Article I, Section 9 of Pennsylvania’s Constitution is violated where

the defendant is substantially denied an opportunity to present a

defense. … Id. (citations omitted). When the prosecution does

not or cannot allege, with sufficient particularity, the date of the

alleged crime, the accused is denied an opportunity to mount a

defense and thus deprived of their right to due process. Id. at

890-91 (some internal citations and quotations omitted).

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However, “due process is not reducible to a mathematical

formula,” and the Commonwealth does not always need to provide

a specific date of an alleged crime. Brooks, 7 A.3d at 858

(quoting Devlin, 333 A.2d at 892). Pennsylvania Rule of Criminal

Procedure 560(B)(3) states that it shall be sufficient for the

Commonwealth to allege that an offense was committed “on or

about any date within the period fixed by the statute of

limitations” if the precise date is not known. Pa.R.Crim.P.

560(B)(3) (emphasis added).

In Devlin, for instance, the Commonwealth alleged throughout its

prosecution that the sex crime offense occurred in April 1972.

Notably, the charging information and the indictment was

inaccurate from the beginning; the alleged victim approached law

enforcement on April 14, but the detective’s charging information

and the subsequent indictment alleged that the offense occurred

on April 16. At the trial, the alleged victim (an adult with

intellectual disabilities) could not testify with accuracy when the

alleged offense took place – not the time of year, month, day, or

date. Other Commonwealth witnesses, however, established that

there was a continuing relationship between the alleged victim and

the defendant from February 1971 until the crime was reported

on April 14, 1972 – a timespan of fourteen months. See Devlin,

333 A.2d at 889. The trial judge ruled that the jury could find that

the offense occurred at any point in that fourteen-month

timespan, because the timespan occurred within the five-year

statute of limitations. Id. at 890.

On appeal, the Supreme Court concluded that the fourteen-month

timespan was “such an egregious encroachment upon the

[defendant’s] ability to defend himself that we must reverse.” Id.

at 892. The Court observed that it could not “enunciate the exact

degree of specificity in the proof of the date of a crime which will

be required or the amount of latitude which will be acceptable.”

Id. But it noted that “[a]ny leeway permissible would vary with

the nature of the crime and the age and condition of the victim,

balanced against the rights of the accused.” Id.

In the Interest of K.E.N., 638 WDA 2023, 2024 WL 2858397, *2-3 (Pa.

Super. filed June 6, 2024)(unpublished memorandum).2

____________________________________________

2Pursuant to Pa.R.A.P. 126(b), non-precedential decisions of the Superior

Court filed after May 1, 2019, may be cited for their persuasive value.

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In the case sub judice, Appellant argues that the Commonwealth was

permitted to set forth in the criminal information a “broad[,] three-year time

frame for twenty of the counts and [a] two-year period for the additional

counts[,]” on which Appellant relied “in fashioning his defense.” Appellant’s

Brief at 45. Namely, Appellant’s “defense was to show that [J.G.’s] testimony

could not be believed because the time periods alleged by [J.G.] were utterly

inconsistent with when [J.G.] met and worked for [Appellant].” Id.; see also

N.T. PCRA Hearing at 38 (defense counsel’s testifying that a large part of his

defense strategy was trying to refute the dates set forth in the criminal

information). Appellant explains that he is not arguing that the criminal

information was insufficiently specific; instead, he is contending that “the

Commonwealth was bound by those periods” set forth in the information.

Appellant’s Brief at 45 (emphasis added). He insists that the court’s

instruction in response to the jury’s question during deliberations erroneously

“permitted the jury to consider dates beyond those included in the

information[,]” without Appellant “having any advance notice that a lengthier

time frame would be considered by the jury.” Id. at 46 (footnote and

emphasis omitted); see also N.T. PCRA Hearing at 42 (defense counsel’s

testifying that he had no notice that the time period would be broadened from

what was included in the criminal information). Appellant avers that,

[t]he jury had broad latitude, as did the Commonwealth, but that

latitude cannot extend beyond the date range alleged into

unknown weeks, months or years. This issue is one of arguable

merit. Appellate counsel also had no reasonable basis for

inadequately arguing and briefing this claim.

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Id. at 47.

Initially, I agree with Appellant that this claim has arguable merit, and

that his appellate counsel had no reasonable basis for waiving it on appeal.

Therefore, the question is whether Appellant was prejudiced by the failure to

develop a meaningful argument, and I conclude that Appellant has established

a reasonable probability that we would have granted relief on direct appeal.

“The purpose of the indictment is to provide the accused with sufficient

notice to prepare a defense.” Commonwealth v. Renninger, 269 A.3d 548,

558 (Pa. Super. 2022). This Court has stated that “[t]he due process concerns

of Devlin are satisfied where the victim can at least fix the times when an

ongoing course of abuse commenced and when it ceased.” Id. (citing

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa. Super. 2007)).

Here, in the criminal information, the Commonwealth alleged that “on

or about September 1, 2000 through June 30, 2003,” Appellant committed

the offenses charged at counts 1 through 18, and that “on or about June 1,

2006 through September 30, 2007[,]” he committed the offenses charged at

counts 19 and 20. See Criminal Information, 9/17/19, at 1, 3 (unnumbered)

(PCRA Hearing Defendant’s Exhibit 5). Appellant’s trial and appellate

attorneys both testified at the PCRA hearing that Appellant’s defense was

focused on refuting those date ranges. See N.T. PCRA Hearing at 25

(appellate counsel’s confirming that Appellant’s defense “was built on trying

to contradict the timeframes that were included in the information[]” and that

the “timeframes were a significant part of [Appellant’s] defense”); id. at 38

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(trial counsel’s stating that Appellant’s defense was “built around … trying to

refute those dates”); id. at 42 (trial counsel’s confirming that “in preparing

[Appellant] to testify and preparing [his] defense,[they were] focusing on the

time periods charged in the criminal information”). The trial record supports

counsels’ testimony. See N.T. Trial, 6/2/21, at 421 (trial counsel’s stating, in

closing argument, that “Counts 1 through 20, the Commonwealth alleges

occurred on September 1st through June 30th, so they are stuck with those

dates on these charges”); id. (trial counsel’s arguing, “they are saying [the

abuse] happened on or about September 1, 200[0] to June 30, 2003. And

how could that have happened when [Appellant] bought that camper on June

20, 2003?”); id. at 422-25 (trial counsel’s discussing dates of the alleged

abuse to argue the impossibility of J.G.’s claims). However, when the jury

asked, during deliberations, if it was bound by the dates set forth in the

information, the trial court’s reply improperly permitted the jury to consider

dates outside of the timeframes alleged in the information and on which

Appellant had premised his defense.

In concluding that Appellant failed to meet the prejudice prong of the

ineffectiveness test, the PCRA court “focused on the issue of whether, if

properly preserved on appeal, the Superior Court would have found that [the

trial c]ourt committed an abuse of discretion by giving the instruction at issue

to the jury.” PCRA Court Opinion (PCO), 1/13/25, at 12. The court then

concluded that “its instruction was proper.” Id. It explained:

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As presented and argued in this [c]ourt’s Memorandum Opinion in

the first appeal, this [c]ourt did not err in giving this instruction in

consideration of the following: “on or about” language of the

Information; the nature of the continuous course of conduct; and

the charges being sexual offenses committed against a minor

victim. “If a precise date is not known or if the offense is a

continuing one, an allegation [in the Criminal Information] that it

was committed on or about any date within a period fixed by the

statute of limitations shall be sufficient.” Pa.R.Crim.P. 560(B)(3).

Subsequent to the case of … Devlin, wherein our Supreme Court

held that due process requires the Commonwealth fix the date of

the commission of the offense with reasonable certainty, the

progeny of cases that followed scaled back this requirement as

outlined in … Renninger, 269 A.3d [at] 557-58 … (“[T]he

Commonwealth must be allowed a reasonable measure of

flexibility when faced with the special difficulties involved in

ascertaining the date of an assault upon a young child.”[);]

Com[monwealth] v. Luktisch, 680 A.2d 877, 880 ([Pa. Super.]

1996) [(]“The Commonwealth must be afforded broad latitude

when attempting to fix the date of offenses which involve a

continuous course of criminal conduct.”[);] Com[monwealth] v.

Benner, 147 A.3d 915, 921 (Pa. Super. 2016) [(]“The due

process concerns of Devlin are satisfied where the victim can at

least fix the times when an ongoing course of [molestation]

commenced and when it ceased.[”);] … G.D.M., Sr., 926 A.2d [at]

990….

In doing so, the [c]ourt gave the following rationale in G.D.M.,

Sr.[:]

A … child cannot be expected to remember each and every

date upon which he was victimized, especially where those

events are numerous and occur over an extended period of

time. Unlike adults, the lives of children … do not revolve

around the calendar, except to the extent that they may be

aware of their birthday or Christmas, or the day a favorite

television show airs. To require young children to

provide such detail would be to give child predators

free rein. Instantly, we find that the dates of the incidents

were proven with sufficient specificity to satisfy due

process.9

Id. (emphasis added).

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9 In the case of G.D.M., Sr., the victim was a six-year-old.

Nevertheless, this court finds that the same rationale

applies to the victim in this case.

In answering the jury’s question, this [c]ourt made sure to

emphasize to the jury that if considering dates outside of the

months outlined in the information, the jury should “[p]lease be

mindful regarding the age of the alleged victim set forth in

the elements of the offenses.” It appears the jury adequately

understood and applied this instruction, as there was a pattern in

their guilt determination related to the age of the victim at the

time of the offense.

Id. at 12-13.

Additionally, the PCRA court noted that “[a] difference between the

information and proof offered at trial is not fatal ‘unless it could mislead the

defendant at trial, impairs a substantial right, or involves an element of

surprise that would prejudice the defendant’s efforts to prepare his defense.’”

Id. at 13 (quoting Renninger, 269 A.3d at 557) (citation omitted)). The

court then addressed Appellant’s argument that he was prejudiced by the

court’s response to the jury’s question because, “had he known that the jury

would have been permitted to consider timeframes outside of the information,

he had evidence to present to refute the allegations.” Id. at 14. The court

noted that, at the evidentiary hearing, Appellant’s “counsel submitted

Petitioner’s Exhibit 11[,] identified as copies of paycheck stubs from when

[Appellant] worked as a truck driver beginning in 2004. [Appellant] argued

that this type of proof would have been submitted[,] had he been aware of

the time frames to be considered in support of his defense.” Id. The court

then explained:

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This argument is like that made by the defense in

Com[monwealth] v. Hacker, 959 A.2d 380 ([Pa. Super.]

2008)[, rev’d on other grounds, 15 A.3d 333 (Pa. 2011)].

In Hacker, the defendant argued that a variance between the

dates of the information and the dates presented in trial evidence

prejudiced her because “not knowing the appropriate dates meant

she had no opportunity to determine if there were witnesses or

other evidence that would buttress her claim of innocence.” Id.

at 390. Despite this argument, Hacker “ma[de] no attempt

whatsoever to demonstrate to [the Court] that there actually were

any such witnesses or items of evidence. Now aware of the time

frame of [the victim’s] allegation, she ma[de] no proffer of what

witnesses or evidence she would have introduced had she been

more aware of the dates before trial. She d[id] not claim or

demonstrate that she would have had an alibi.” Id. As such,

Hacker failed to demonstrate the variance in her case could have

misled her, impaired her particular rights, or surprised her and

consequently, she did not show the variance entitled her to relief.

Id.

Here, to his credit, [Appellant] did make the attempt to

demonstrate to the [c]ourt one exhibit[,] which he would have …

admitted had [Appellant] known of the timeframe to be

considered. However, this flimsy (at best) singular exhibit and

attempt to demonstrate an alibi does not rise to the sufficient level

necessary to show how the variance entitles [Appellant] to relief.

No other witnesses or evidence was presented at the time of the

PCRA hearing[,] and [Appellant’s] testimony at the PCRA hearing

that he had “evidence for other timeframes” is not sufficient to

meet the burden required.

In analyzing the only evidence proffered by [Appellant] at the

hearing, this [c]ourt concludes that if this exhibit was added to

[Appellant’s] other evidence presented at the time of trial, the

result would remain the same. An exhibit that demonstrates

[Appellant] traveled and worked often does not provide a “slam

dunk” alibi defense that he could have never, on or about the

time frame alleged or permitted to be considered by the jury,

committed the offenses [of] which he was accused. [Appellant]

fails to submit that the jury instruction misled him at trial,

impaired a substantial right of his, or involved an element of

surprise that prejudiced … [Appellant’s] efforts to prepare his

defense.

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Id. at 14-15 (footnote omitted; emphasis in original). Ultimately, the PCRA

court concluded that, “had appellate counsel properly argued the issue, the

Superior Court would have discerned no abuse of discretion for the reasons

described above and therefore, the third element of the ineffective counsel

test is not met.” Id. at 16.

In challenging the PCRA court’s decision, Appellant first argues that

G.D.M., Sr., “simply does not support the PCRA court’s rationale.” Appellant’s

Brief at 48. He stresses that the jury was not instructed in that case that it

did not have to consider the dates charged in the criminal information.

Appellant also points out that he is not arguing, as did the appellant in G.D.M.,

Sr., “that the evidence was insufficient because the dates were not specific.”

Id. at 49. Instead, Appellant is arguing that the Commonwealth was bound

by the time periods alleged in the criminal information, which was not

an issue addressed in G.D.M., Sr. Id.

Appellant also argues that the PCRA court’s reliance on Hacker to reject

his ineffectiveness claim is misplaced, as “that decision does not contradict

[Appellant’s] position, [but] in fact supports it.” Id. He stresses that

[t]he Hacker Court set forth, “Unless a variance could mislead

the defendant at trial, impairs a substantial right, or involves an

element of surprise that would prejudice the defendant’s efforts

to prepare a defense, it is not fatal.” [Hacker, 959 A.2d at] 390.

Instantly, the variance did mislead [Appellant], did impair a

substantial right, and did involve surprise and clearly prejudiced

his defense. A cursory reading of trial counsel’s closing argument

reveals just how prejudicial the variance was to the defense. Trial

counsel’s presentation of evidence and summation hinged on the

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broad time range and how it was impossible, and his questioning

of the witnesses was focused on the time periods.

Id. at 49-50 (emphasis in original).

Appellant further contends that the PCRA court “brushed aside that in

Hacker, … the defendant did not present any evidence that she would have

otherwise presented[,] had she been aware of the one-month discrepancy” in

the dates alleged by the Commonwealth, whereas here, Appellant “presented

eight pages of testimony based on his Swift Transportation pay stubs.” Id. at

50 (emphasis in original). Moreover, he challenges the PCRA court’s

characterization of this evidence as a “flimsy (at best) singular exhibit[,]”

stressing that “[t]he Exhibit was a single exhibit because the January,

February, March, and April records were combined into a single exhibit -- that

easily could have been four exhibits.” Id. (quoting PCO at 15). Appellant also

insists that

the records were not “flimsy[.”] They are business records and

pay stubs with detailed information which establish that the abuse

could have not taken place in the four months of 2004 before

[J.G.] and his family moved because [Appellant] was on-the-road

and traveling for his job as a truck driver.

Id.

In sum, Appellant argues that he would have offered this evidence at

trial, had he known that the timeframe alleged in the criminal information

would be expanded. However, the court provided the jury instruction

expanding the timeframes alleged in the information with no notice to

Appellant, thereby denying him the opportunity to present evidence such as

this in his defense, and violating his due process rights. Accordingly, he

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argues that he was prejudiced by his appellate counsel’s failure to preserve

this issue on direct appeal, as this Court would have granted him relief on this

claim.

After reviewing the cases relied upon by the PCRA court and discussed

by Appellant, I agree that this Court would have granted him relief. In the

criminal information, the Commonwealth alleged date ranges of September 1,

2000 through June 30, 2003, and June 1, 2006 through September 30, 2007.

Appellant’s trial and appellate attorneys both testified at the PCRA hearing

that Appellant’s defense was focused on refuting these dates, and the trial

record supports counsels’ testimony. When the court instructed the jury,

during deliberations, that it was not bound by the dates listed in the criminal

information, the court committed reversible error. Appellant had no notice

that the jury would be told it could consider dates outside of the timeframes

alleged in the information. Moreover, at the PCRA hearing, Appellant

presented evidence that he would have admitted at trial, had he known that

the Commonwealth would not be bound by the dates in the information.

Namely, the pay stubs admitted by Appellant showed that during the months

of January, February, March, and April of 2004, Appellant traveled for work to

various states, including Michigan, Illinois, Ohio, and New York. See PCRA

Hearing at 118-23. These records showed that Appellant was not in Warren,

Pennsylvania, for lengthy periods of time during those months. Appellant

could have presented these records at trial to defend against any allegations

that he committed offenses during those time periods. Given that J.G. moved

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to North Carolina in April of 2004, when he was 14 years old,3 this evidence

could have been exculpatory alibi evidence for those early months of 2004,

had Appellant known that the jury would be told it could consider dates beyond

June 30, 2003.

The criminal information “sets the stage for trial and what the

Commonwealth intends to prove.” Commonwealth v. Martin, 323 A.3d 807,

817 (Pa. Super. 2024). Appellant was prejudiced by the trial court’s decision

to allow the jury to consider dates outside of the timeframes alleged in the

information and on which Appellant had premised his defense. Because

Appellant was denied an opportunity to defend against this extended

timeframe, his due process rights were violated. See Devlin, 333 A.2d at

891. Accordingly, the court’s jury instruction contained a fundamental error

that violated Appellant’s constitutional rights and, therefore, warrants a new

trial. Commonwealth v. McRae, 5 A.3d 425, 430–31 (Pa. Super. 2010) (“A

new trial is required on account of an erroneous jury instruction only if the

instruction under review contained fundamental error, misled, or confused the

jury.”).

Accordingly, I conclude that Appellant has demonstrated that he was

prejudiced by his appellate counsel’s waiver of this claim on direct appeal.

____________________________________________

3 See Appellant’s Brief at 20 (citing, inter alia, Reproduced Record at 0800a

(Exhibit 10 - Warren County School District Student Withdrawal Form showing

a “Date of Withdrawal” for J.G. of April 8, 2004). See also N.T. Trial, 6/1/21,

at 169 (J.G.’s testifying that his family moved to North Carolina in 2004 when

he was 14 years old).

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Therefore, I would reverse the PCRA court’s order denying Appellant’s petition,

vacate his judgment of sentence, and remand for a new trial. 4 For these

reasons, I respectfully dissent.

____________________________________________

4 In light of this conclusion, I would not reach Appellant’s remaining two

claims.

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