Commonwealth v. Martz

J-A08007-15

2015 PA Super 144

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DERECK MICHAEL MARTZ,

Appellee No. 1502 MDA 2014

Appeal from the Order Entered August 11, 2014

In the Court of Common Pleas of Montour County

Criminal Division at No(s): CP-47-CR-0000029-2014

BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

OPINION BY SHOGAN, J.: FILED JUNE 24, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the

order1 entered on August 11, 2014, applying the infancy defense and

dismissing those counts of the amended information (“Information”) that

encompass acts occurring prior to April 2, 1999, when Appellee, Dereck

*

Retired Senior Judge assigned to the Superior Court.

1

While the appealed order is interlocutory, the Commonwealth, in its notice

of appeal, certified that the trial court’s August 11, 2014 order substantially

handicapped the prosecution of this case. See Pa.R.A.P. 311(d) (“In a

criminal case, . . . the Commonwealth may take an appeal as of right from

an order that does not end the entire case where the Commonwealth

certifies in the notice of appeal that the order will terminate or substantially

handicap the prosecution.”); see also Commonwealth v. Brister, 16 A.3d

530, 534 (Pa. Super. 2011) (“The Commonwealth’s good faith certification,

alone, provides an absolute right to appeal . . . .”). Thus, the instant appeal

is properly before us.

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Michael Martz, reached fourteen years of age. For the reasons that follow,

we reverse and remand.

Appellee was born on April 2, 1985. M.S. (“the victim”) was born in

April of 1990. On September 23, 2013, M.S., who was then twenty-three

years old, reported to Danville Police that he had been sexually abused as a

child on an ongoing basis by Appellee, who was then twenty-eight years old.

N.T., 7/30/14, at 3–6, 25. On January 9, 2014, Appellee was charged in

criminal court2 with twelve counts of each of the following crimes: rape of a

child, involuntary deviate sexual intercourse with a child, statutory sexual

assault, aggravated indecent assault of a child, indecent assault of a person

less than thirteen years of age, and one count of terroristic threats, totaling

sixty-one charges. At the preliminary hearing on January 27, 2014, the

sixty sexual assault counts were held for trial, and the single count of

terroristic threats was dismissed.

Appellee filed a Motion for Bill of Particulars on March 12, 2014,

seeking identification of the dates, times, and locations of the sexual

assaults. Request for Bill of Particulars, 3/12/14. He also filed a Motion for

Bill of Particulars or Other Appropriate Relief on March 24, 2014. In that

2

An individual who has reached the age of twenty-one is not a child

pursuant to the Juvenile Act, 42 Pa.C.S. §§ 6301 et seq., and is subject to

the jurisdiction of the criminal courts, despite being accused of committing

the offense before the age of eighteen. See, e.g., Commonwealth v.

Monaco, 869 A.2d 1026, 1028–1030 (Pa. Super. 2005) (relying on § 6302

of the Juvenile Act and concluding individual who was twenty-two years old

at time of his arrest was not a child and could not proceed in juvenile court).

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motion, Appellee sought dismissal of the Information due to the alleged

insufficiency of its allegations and asserted that the Commonwealth did not

adequately specify the dates and circumstances of the charges against him,

thereby precluding him from formulating defenses. Motion for Bill of

Particulars or Other Appropriate Relief, 3/24/14, at unnumbered 2. On April

3, 2014, Appellee filed an omnibus pretrial motion seeking, inter alia,

dismissal based on prejudicial delay.

On May 9, 2014, due to Appellee’s desire to proceed pro se, the trial

court held a colloquy pursuant to Commonwealth v. Grazier, 713 A.2d 81

(Pa. 1998), and Pa.R.Crim.P. 121. In an order dated May 9, 2014, and filed

May 22, 2014, the trial court permitted Appellee to proceed pro se. Order,

5/22/14, at 1. The trial court also held a hearing on Appellee’s other pretrial

motions on May 9, 2014, as well as June 9, 2014. On June 27, 2014, the

Commonwealth filed an Amended Information containing more specific and

detailed allegations. Therein, the assaults were alleged to have begun in

1996 and continued until 2002. The hearing on Appellee’s pretrial motions

was resumed on July 9, 2014. At the July 9, 2014 hearing, Appellee verbally

raised an “infancy defense”3 in which he sought dismissal of certain counts

based on his claim that because he was a child between the ages of eleven

and seventeen when the alleged abuse occurred, he lacked capacity to

3

An infancy defense entails the common law presumption that children

between the ages of seven and fourteen years lack the capacity to commit

crimes. In the Interest of G.T., 597 A.2d 638, 639 (Pa. Super. 1991) (en

banc).

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commit the crimes.4 In an order dated July 15, 2014, and filed July 18,

2014, the trial court scheduled a supplemental hearing on the pretrial

motions. That hearing was held on July 30, 2014.

On August 11, 2014, the trial court entered the following order:

AND NOW, to wit, on this 11th day of August, 2014, on the

basis of the reasons set forth in the foregoing Opinion, it is

ORDERED as follows:

1. The Defendant’s Motion for Bill of Particulars or Other

Appropriate Relief is DENIED;

2. The Defendant’s oral Motion to Dismiss based upon the

Infancy Defense is GRANTED IN PART. Counts 1-9, 13-21, 25-

33, 37-45, 49-57 shall be dismissed to the extent that they

encompass acts occurring prior to April 2, 1999 when the

Defendant reached the age of 14. Those counts shall continue to

be subject to prosecution in the present case as to time periods

from and after April 2, 1999; and

3. The Defendant’s Motion to Dismiss based upon

Prejudicial Delay, contained in the Omnibus Motion filed on April

3, 2014, is DENIED.

Opinion and Order, 8/11/14, at 9.

In the opinion accompanying the August 11, 2014 order, the trial court

held there is a rebuttable presumption that Appellee did not have the

capacity to appreciate the wrongfulness of his conduct through the age of

4

While Appellee did not file a written motion to dismiss based on the

infancy defense or give prior written notice of intent to present an infancy

defense, he did assert his infancy in several paragraphs of his omnibus

pretrial motion. Omnibus Pretrial Motion, 4/3/14, at ¶¶ 20, 27, 31–32.

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fourteen. Opinion and Order, 8/11/14, at 3.5 It found that the

Commonwealth had not rebutted that presumption and, accordingly,

dismissed counts based on allegations of acts occurring prior to April 2,

1999, which was when Appellee reached the age of fourteen. Id.

Appellee filed a Motion for Appointment of Standby Counsel on

September 8, 2014, which the trial court granted on September 16, 2014.

The Commonwealth filed its notice of appeal on September 9, 2014,

certifying that dismissal of the charges substantially handicapped or

terminated its case pursuant to Pa.R.A.P. 311(d). Standby counsel withdrew

on September 26, 2014, due to a conflict of interest. Pursuant to the trial

court’s order of September 16, 2014, the Commonwealth filed a concise

statement of errors complained of on appeal on October 9, 2014. In an

order dated October 15, 2014, the trial court appointed new standby counsel

for Appellee.6 In an order filed on October 16, 2014, and in reliance upon

5

The trial court addressed Appellee’s and the victim’s ages in relation to the

alleged acts as follows:

The Amended Information alleges a continuing course of conduct

from 1996 to 2002, expanded from the original information.

This means that [Appellee] could have been as young as 10 (on

January 1, 1996) [or] as old as 17 (on December 31, 2002),

while the victim could have been as young as 5 and as old as 12

at the time of the alleged acts.

Opinion and Order, 8/11/14, at 5.

6

Appellee filed a pro se brief in this appeal.

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Pa.R.A.P. 1925(a), the trial court incorporated its Opinion filed on August 11,

2014, “as the basis for the Order of August 11, 2014.” Order, 10/16/14.

The Commonwealth raises two issues for our review, as follows:

I. The Infancy Defense is a doctrine that can no longer be

recognized as a defense since the adoption of the Juvenile

Act of 1976, 42 Pa.C.S.A. §6301 et. seq. in that its

application would result in inequitable and disparate

treatment of offenders and victims in the juvenile justice

versus the adult criminal justice system for the same

offenses.

II. The Infancy Defense is in essence a claim of “diminished

capacity” or “lack of capacity” which requires the

Defendant to admit guilt, but then allows the Defendant to

assert the same as an affirmative defense which can only

be determined at Trial by the fact finder, and cannot be

used to exclude evidence or dismiss charges prior to Trial.

Commonwealth Brief at 4.

The Commonwealth’s issues involve questions of law. Therefore, our

standard of review is de novo, and our scope of review is plenary.

Commonwealth v. Barger, 956 A.2d 458, 461 (Pa. Super. 2008) (citing

Commonwealth v. States, 938 A.2d 1016 (Pa. 2007)).

In its first issue, the Commonwealth argues that the infancy defense

has been superseded by the Juvenile Act. Specifically, the Commonwealth

states that the Juvenile Act re-defined a “delinquent child” as a child “ten

years of age or older whom the court has found to have committed a

delinquent act and is in need of treatment, supervision, or rehabilitation.”

Commonwealth Brief at 10 (citing 42 Pa.C.S. § 6302). The Commonwealth

then contends that “[o]bviously, the common law age limits were altered by

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the adoption of this legislation which clearly establishes a presumption of

capacity for children over the age of ten (10) who have committed crimes.”

Commonwealth Brief at 10. The Commonwealth also argues that an

offender “who was under the age of fourteen (14) at the time he committed

a crime, but who was not arrested until he was an adult, would be effectively

immune from prosecution” as an adult, and that such a position “would

effectively vitiate the Legislature’s intentional expansion of victim’s rights

and the [expanded] Statute of Limitations in just this type of sexual assault

case.”7 Id. at 8. Although we appreciate the Commonwealth’s concerns, we

are constrained to disagree.

The purpose of the infancy defense is to “protect children from

retribution in recognition of their inability to differentiate right from wrong.”

In the Interest of G.T., 597 A.2d 638, 641–642 (Pa. Super. 1991) (en

banc). The common law defense of infancy has a long jurisprudential

history:

Down through the centuries the law has attempted to save

offending children from the rigidity of the criminal law applicable

to adults, but the history of the law has disclosed that such

attempts were only sporadic and in many instances

accomplished very little. As early as the fifth century B.C., the

Twelve Tables (c. 488–451) made the theft of crops at night a

capital crime, but a youthful offender could escape with a fine

double the value and a flogging. The Romans promulgated the

defense of infantia which provided absolute immunity for those

7

The statute of limitations for sexual assaults on minors has been extended

to “any time up to the later of the period of limitation provided by law after

the minor has reached 18 years of age or the date the minor reaches 50

years of age.” 42 Pa.C.S. § 5552(b.1), (c)(3).

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children who were incapable of speech. Puberty was established

as the upper limit of eligibility for mitigated treatment. Between

infancy and puberty, criminal responsibility depended on a

combination of three factors—the proximity of age to either

infancy or puberty, the nature of the offense, and the mental

capacity of the offender.

“By the seventeenth century, the Roman classification of

criminal responsibility became the basis of the English common-

law approach, so that children under seven were incapable of

committing a crime while those between seven and fourteen

were presumed incapable. Such presumption however was

rebuttable by strong and clear evidence. Those fourteen and

over were subject to the same criminal laws as were adults.” D.

Frauenhofer, A. Hart, J. Keefe, P. May, E. Sheehy, & T. Wilson,

“Practice and Procedure of the Juvenile Court for the State of

Connecticut,” 41 Conn.B.J. 201, 206 (1967); see 1 W. LaFave &

A. Scott, Substantive Criminal Law § 4.11(a); see generally A.

Kean, “The History of the Criminal Liability of Children,” 53

L.Q.Rev. 364 (1937); A. Walkover, “The Infancy Defense in the

New Juvenile Court,” 31 UCLA L.Rev. 503 (1984).

In re Tyvonne, 558 A.2d 661, 663–664 (Conn. 1989). “As with most

American common law principles, the infancy defense was imported from

Great Britain during colonization and remained in effect after the United

States was formed.” Tara Schiraldi, For They Know not What They Do:

Reintroducing Infancy Protections for Child Sex Offenders in Light of In re

B.W., 52 AM.CRIM.L.REV. 679, 683 (Summer 2015).

Pennsylvania has traditionally adhered to the common law rule, as

follows:

In Pennsylvania we have followed the common-law rule in

measuring the capacity of a child to commit a crime. A child

under the age of 7 years is conclusively presumed incapable of

the commission of a crime; a child between the ages of 7 and 14

years is likewise presumed incapable of committing a crime but

such presumption is subject to refutation by evidence that the

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child does possess the criminal capacity; a child over the age of

14 years is prima facie capable of the commission of a crime.

Commonwealth v. Green, 151 A.2d 241, 246 (Pa. 1959). Thus, “any

special immunity or presumption of incapacity ceases” when the child

reaches fourteen. Commonwealth v. Cavalier, 131 A. 229, 234 (Pa.

1925).8

Despite this longstanding adherence to the infancy defense in

Pennsylvania, this Court held in Interest of G.T. that the common law

defense of infancy was “irrelevant in determinations of delinquency in our

juvenile justice system.” Interest of G.T., 597 A.2d. at 643. We reasoned

that:

The purpose of determining delinquency under the Juvenile Act

is to identify those children who have committed an act which

would be a crime if it had been committed as an adult and who

are, therefore, in need of special treatment, supervision and

rehabilitation. Delinquency proceedings are not criminal in

nature but are intended to address the special problems of

children who have engaged in aberrant behavior disclosing a

need for special treatment. Therefore, the defense of infancy,

created to protect children from retribution in recognition of their

inability to differentiate right from wrong, is irrelevant to a

determination regarding a juvenile’s amenability to treatment,

rehabilitation and supervision. Indeed, the Act provides that, in

some instances where it is determined that rehabilitative goals

cannot be met, the court may rule that the offense should be

prosecuted, and transfer the matter to criminal proceedings.

See 42 Pa.C.S. § 6355 (a)(4)(iii)(A).

8

In fact, pursuant to the Juvenile Act, “delinquent act” does not include

murder and many other offenses if committed by a child fifteen years of age

or older. 42 Pa.C.S. § 6302. These charges may be directly filed in criminal

court.

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Id. at 641–642. In so holding, however, we emphasized that “we are not of

the opinion that our decision today encroaches upon the common law

defense. The infancy defense arises in a criminal proceeding and, as we

have stated, a delinquency proceeding is not criminal in nature.” Id. at 642

(emphasis in original).

In applying the infancy defense, the trial court in the case sub judice

relied on the reasoning of Interest of G.T., as follows:

In G.T., the Superior Court held that, as to juvenile court

proceedings, the Juvenile Act, 42 Pa.C.S. §6301 et seq.,

abrogated the common law Infancy Defense because, in the

opinion of the Superior Court, the juvenile courts would be

unable to provide the treatment intended by the Juvenile Act for

children as young as 10 years of age if the Infancy Defense were

to continue to be applicable to “delinquency proceedings” under

the Juvenile Act, as differentiated from a “criminal proceeding.”

G.T., 597 A.2d at 642 (emphasis in original).

In the present case, the Juvenile Act does not apply, since

the Defendant is 29 years old and the jurisdiction of the Juvenile

Act ends when a juvenile delinquent reaches the age of 21

years. See: Definition of “child” at §6302 (under 21 years of

age) and application of that term at §6321 (“Commencement of

proceedings”) and §6303 (“Scope of chapter”); Commonwealth

v. Monaco, 2005 Pa. Super. 79, 869 A.2d 1026 (2005). Since it

is the Juvenile Act which abrogated the Infancy Defense, and

only in juvenile court delinquency proceedings, and since the

policy of the Juvenile Act as articulated in G.T., supra, to

facilitate the treatment of a “child” in juvenile court is not

applicable to the present case, which is a “criminal proceeding,”

the Infancy Defense applies and the Defendant is rebuttably

presumed to have lacked the capacity to appreciate the

criminality of his alleged actions through the age of 14 years.

Trial Court Opinion, 8/11/14, at 4.

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Given our prior pronouncement in Interest of G.T., we cannot

conclude that the trial court erred in finding that the infancy defense remains

viable in criminal proceedings. In Interest of G.T., we held that the infancy

defense was abrogated by the Juvenile Act in juvenile proceedings because

otherwise, the juvenile court would be unable to provide treatment. That

holding does not undermine the underlying reason for the common law

defense, i.e., “to protect children from retribution in recognition of their

inability to differentiate right from wrong. . . .” Interest of G.T., 597 A.2d

at 641–642. Although, in this case, we are not protecting a “child” from

retribution in a criminal proceeding, we are determining criminal

responsibility. The ability to differentiate right from wrong is integral to that

determination.

Furthermore, repeal of our common laws by implication is disfavored.

To modify the common law, a statute must expressly declare its intent to do

so in its provisions. In re Rodriguez, 900 A.2d 341, 415 (Pa. 2003)

(quoting Rahn v. Hess, 106 A.2d 461, 464 (Pa. 1954) (“Statutes are never

presumed to make any innovation in the rules and principles of the common

law or prior existing law beyond what is expressly declared in their

provisions”); accord United States v. Texas, 507 U.S. 529, 534 (1993)

(“In order to abrogate a common-law principle, the statute must ‘speak

directly’ to the question addressed by the common law.”). Thus, we cannot

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conclude that the Juvenile Act abrogated the viability of the common law

defense of infancy in criminal proceedings.

In summary, criminal proceedings are a determination of criminal

responsibility, while the purpose of a juvenile disposition hearing is to

determine treatment necessary for rehabilitation. In Interest of G.T., the

viability of the common law defense of infancy in criminal proceedings was

preserved by this Court. The Commonwealth has not directed us to any

subsequent developments in the statutory or common law that cause us to

abandon this position. Therefore, we hold that the common law defense of

infancy remains applicable in criminal proceedings where a defendant is

being prosecuted for conduct committed before the age of fourteen. To hold

otherwise would subject individuals to retribution for conduct at an age

where they were unable, or presumptively unable, to differentiate right from

wrong.

The Commonwealth’s second issue alternatively maintains that once

Appellee verbally asserted the infancy defense, the trial court erroneously

shifted the burden to the Commonwealth to prove that Appellee had

“capacity” at the time the crimes allegedly were committed. The

Commonwealth suggests that the infancy defense is an affirmative one to be

raised as a method to cast doubt on Appellee’s capacity at trial, rather than

as a rebuttable presumption raised pretrial. Commonwealth Brief at 15–17.

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We disagree, but find that the Commonwealth was not provided with a full

and fair opportunity to rebut the presumption in this case.

At the July 9, 2014 hearing, Appellee introduced the infancy defense

as follows:

[By Appellee]: I think I will raise by other issue now. . . .

* * *

It’s called the infancy defense. It’s a common law defense

in Pennsylvania and actually the—if this case would have

been tried in juvenile court, it was abolished by the juvenile

act, but what it does is protects children between the ages of

seven and 14-years-old. And what it does is it considers

them to be incapable of committing a crime. It’s a common

law rule. It’s still active in Pennsylvania. It it’s not in the

context of the juvenile act which this case is—what we’re

doing here is we’re prosecuting a child in an adult court

situation.

* * *

I’m saying the infancy defense is not relevant dealing with

juvenile children being I don’t know if you want to say

prosecuted or adjudicated as delinquent in court in a juvenile

setting, but a child—for acts that were committed by a child

that are being tried in adult court, the infancy defense which,

by the way it’s presumed—the presumption is actually for

children that are between the ages of seven and 14-years-

old . . . .

N.T., 7/9/14, at 18–19. The trial court subsequently scheduled a

supplemental hearing for July 30, 2014. In an order dated July 15, 2014,

and filed July 18, 2014, the trial court stated that one of the purposes of the

hearing would be to consider Appellee’s “oral motion to dismiss based upon

the ‘infancy defense’” along with Appellee’s March 24, 2014 Motion for Bill of

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Particulars and Other Appropriate Relief and “that portion of the Omnibus

Motion alleging prejudicial delay. . . .” Order, 7/18/14, at 1. The trial court

explained in that order that “all three motions require consideration of

common facts and legal issues that relate to each other. . . .” Id.

The majority of the July 30, 2014 hearing was devoted to the issue of

prejudicial delay and involved the Commonwealth’s presentation of the

testimony of Danville Police Chief Eric D. Gill. N.T., 7/30/14, at 2–26.

Toward the end of the hearing, and after the Commonwealth had rested, the

trial court briefly addressed the issue of the infancy defense with Appellee.

Appellee stated the following:

What I want to say is I am not asking for dismissal based on the

infancy [defense]. My motion is for dismissal for lack of am [sic]

specific dates for me to prepare the defense of infancy at trial.

The infancy defense itself would not be—it would be something

that would be given to a Jury. It would be an additional burden

of proof.

N.T., 7/30/14, at 28. At that point, Appellee, still proceeding pro se,

presented the court and the Commonwealth with a brief on this issue. In

response to the trial court’s inquiry, the Commonwealth indicated its desire

to file a brief as well. Id. at 34–35. The Commonwealth also asked to be

able to present evidence and stated:

[U]pon researching the infancy defense and the issues that now

have been raised by that particular defense, if you will, that

[Appellee] is claiming, it seems appropriate that I be able to

bring in some of his past record which shows his interaction with

the legal system, his knowledge of right and wrong, which

certainly go[] to his question of capacity.

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Id. at 37 (emphasis added). The trial court refused to hear testimony,

however, and responded as follows: “The hearing is closed on this infancy

defense issue. I am going to make a ruling on it.” Id.

The Commonwealth now contends:

The prosecution does not bear the burden of establishing

capacity; instead, [Appellee] would first have to admit that he

committed these sexual offenses against the victim. The Infancy

Defense would then be an attempted justification, excuse or

mitigation of [Appellee’s] criminal conduct. The Commonwealth

would then present rebuttal evidence to contradict [Appellee’s]

affirmative defense in that regard. The issue would be decided

by the jury at the time of trial.

Commonwealth Brief at 16 (emphasis in original).

This Court has discussed capacity, as that term is understood in

relation to the infancy defense, as follows:

Capacity, in terms of the infancy defense, refers, not to the

ability to formulate mens rea, . . . but to the ability to appreciate

the criminality and wrongfulness of one’s acts. See F. McCarthy,

The Role of the Concept of Responsibility in Juvenile Delinquency

Proceedings, 10 University of Michigan Journal of Law Reform

181, 183–185 (1977). It is this capacity, and not the ability

to formulate the necessary intention, that is the subject of

the common law presumptions regarding children.

Interest of G.T., 597 A.2d at 640 (emphasis added). We have previously

held that the infancy defense remains a presumption in criminal

proceedings, although “such presumption is subject to refutation. . . .”

Green, 151 A.2d at 246. Based on this reasoning and the lack of any

subsequent pronouncements from our Supreme Court or legislation in this

area, we are not persuaded by the Commonwealth’s references to the

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defense of diminished capacity or mental infirmity. Thus, any presumption

under the infancy defense should be available to Appellee for his conduct up

until fourteen years of age. Id.; Cavalier, 131 A. 229.

In summary, the common law defense of infancy is applicable to the

charges against Appellee until the time he turned fourteen years old.

However, it applies as a rebuttable presumption between the ages of seven

and fourteen. After careful review of the certified record in this case, we

conclude that the Commonwealth was not given an adequate opportunity to

present rebuttal evidence, no doubt due in part to the convoluted nature of

the proceedings and Appellee’s pro se status. As noted supra, criminal

responsibility is generally dependent upon three factors: 1) proximity of age

to either infancy or puberty, 2) the nature of the offense, and 3) the mental

capacity of the offender. In re Tyvonne, 558 A.2d at 663. Relevant

evidence of capacity goes to an appreciation of the wrongfulness of the

conduct and may consist of, inter alia, prior experience with the juvenile or

criminal systems at the time of the offenses and attempts to conceal the

alleged conduct. Although we recognize the difficulty of producing such

evidence many years after the alleged conduct, the Commonwealth should

have been given a full and fair opportunity to produce such rebuttal

evidence. In not doing so, the trial court erred.

Order reversed. Case remanded for proceedings consistent with this

Opinion. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/24/2015

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