After reading the opinions, here are my notes on the primary differences between the two, focusing on the statute of limitations issues. (FYI - These notes support why Spanier’s defense never really challenged the age of V2 at trial; basically, Spanier didn’t know he had to since the commonwealth had never relied on that to argue SoL was met.)
### Long story short:
Before trial, the commonwealth relied on a specific argument to meet the statute of limitations, arguing there was a comurse of conduct. Spanier was not found guilty of a course of conduct. The trial court judge wrote a post sentence opinion that offered a totally different argument to meet the statute of limitations because he knew the course of conduct argument failed after the not guilty verdict on that charge. This particular argument, while compelling, was never offered by the commonwealth before trial or at trial and therefore Spanier offered no arguments in defense against it. This presents a due process issue that was noted in the dissenting opinion from the Pa Superior Court and was a fundamental reason for the dissent. The majority opinion on the other hand said Spanier was charged on the felony EWOC count (requiring the course of conduct) and had enough of the facts to defend against the lesser included charge of misdemeanor EWOC.
#### The majority opinion basically said Spanier had enough facts, despite after the fact failings of pretrial commonwealth arguments on SoL:
http://www.pacourts.us/assets/opinions/Superior/out/Opinion Affirmed 10359725939767150.pdf?cb=1
> The jury expressly rejected that [course of conduct] theory, thus defeating the Commonwealth's sole statute of limitations argument.
> ...
> Appellant argues further that the Commonwealth cannot avoid the limitations bar through the trial court's after-the-fact reliance on § 5552(c)(3), which the Commonwealth never raised nor addressed at trial.
> ...
> More importantly, the prosecution for misdemeanor EWOC was not dependent upon proof of any facts outside those already alleged in the complaint. Thus, unlike Bethlehem, **notice requirements under due process were not violated here.**
> ...
> Simply put, this case does not involve “tolling” wherein the Commonwealth would have had an obligation to apprise the Appellant of additional facts to defend against in response to his statute of limitations defense.
> ...
> The complaint and the attached grand jury presentment apprised Appellant of the facts relevant to the applicable limitations period in order to defend against the lesser-included offense of EWOC as a misdemeanor.
#### The minority, dissenting opinion, rejected the majority's arguments that due process was met:
http://www.pacourts.us/assets/opinions/Superior/out/Dissenting Opinion 10359725939767138.pdf?cb=1
> The trial court noted that the child victim in the 2001 incident was ten to twelve years old; thus, the statute would run in approximately 2039. Id. at 10. Appellant asserts that reliance on this section of the statute was procedurally improper where this provision was never raised before or at trial.
> ...
> I reject the trial court's reliance upon this section. Moreover, I find the Majority's attempt to rationalize this belated reliance unpersuasive. As I will explain, infra, the Commonwealth's failure to invoke the exception **violated the due process requirements of notice**.
> ...
> ...
> As this line of cases makes clear, the law remains well settled. Essentially, provided the defendant, at some reasonable time prior to trial is apprised that the Commonwealth will seek to toll the statute, the due process requirements of notice are met. ... The notice itself, and accordingly the opportunity to defend, is the operative and most important aspect: this is the due process concern that must be satisfied.
> ...
> The Majority contends that, pursuant to Morrow and Commonwealth v. Houck, ..., the Appellant was constructively aware of the applicable statutory provision, as there was testimony that the victim was ten to twelve years old. This argument falls flat in the face of the Commonwealth's continued reliance upon the course of conduct exception, which I have rejected supra.
> ...
> Here, similarly, Appellant prepared his defense in response to the Commonwealth's express reliance upon the course of conduct exception. ... Appellant was unsuccessful in this challenge before the trial court, and the matter proceeded to trial. Unlike the situation in Morrow, the Commonwealth did not notify Appellant of its intention to toll the statute here, based upon its assertion that the course of conduct exception applied. ... In fact, it did not inform Appellant of its intention at all [I note that, in its brief, the Commonwealth declines even to address its failure to properly notify Appellant at all.] **Absent proper pretrial notice, the requirements of due process were not met.**
#### Summarizing the PA Superior Court Opinions regarding Statute of Limitations Issues
The majority argues that due process rights were not violated. (The basis for this is a little hard to follow.) The minority, dissenting opinion argues that due process rights were indeed violated. (The basis for this is much easier to follow.)
### Long story short:
Before trial, the commonwealth relied on a specific argument to meet the statute of limitations, arguing there was a comurse of conduct. Spanier was not found guilty of a course of conduct. The trial court judge wrote a post sentence opinion that offered a totally different argument to meet the statute of limitations because he knew the course of conduct argument failed after the not guilty verdict on that charge. This particular argument, while compelling, was never offered by the commonwealth before trial or at trial and therefore Spanier offered no arguments in defense against it. This presents a due process issue that was noted in the dissenting opinion from the Pa Superior Court and was a fundamental reason for the dissent. The majority opinion on the other hand said Spanier was charged on the felony EWOC count (requiring the course of conduct) and had enough of the facts to defend against the lesser included charge of misdemeanor EWOC.
#### The majority opinion basically said Spanier had enough facts, despite after the fact failings of pretrial commonwealth arguments on SoL:
http://www.pacourts.us/assets/opinions/Superior/out/Opinion Affirmed 10359725939767150.pdf?cb=1
> The jury expressly rejected that [course of conduct] theory, thus defeating the Commonwealth's sole statute of limitations argument.
> ...
> Appellant argues further that the Commonwealth cannot avoid the limitations bar through the trial court's after-the-fact reliance on § 5552(c)(3), which the Commonwealth never raised nor addressed at trial.
> ...
> More importantly, the prosecution for misdemeanor EWOC was not dependent upon proof of any facts outside those already alleged in the complaint. Thus, unlike Bethlehem, **notice requirements under due process were not violated here.**
> ...
> Simply put, this case does not involve “tolling” wherein the Commonwealth would have had an obligation to apprise the Appellant of additional facts to defend against in response to his statute of limitations defense.
> ...
> The complaint and the attached grand jury presentment apprised Appellant of the facts relevant to the applicable limitations period in order to defend against the lesser-included offense of EWOC as a misdemeanor.
#### The minority, dissenting opinion, rejected the majority's arguments that due process was met:
http://www.pacourts.us/assets/opinions/Superior/out/Dissenting Opinion 10359725939767138.pdf?cb=1
> The trial court noted that the child victim in the 2001 incident was ten to twelve years old; thus, the statute would run in approximately 2039. Id. at 10. Appellant asserts that reliance on this section of the statute was procedurally improper where this provision was never raised before or at trial.
> ...
> I reject the trial court's reliance upon this section. Moreover, I find the Majority's attempt to rationalize this belated reliance unpersuasive. As I will explain, infra, the Commonwealth's failure to invoke the exception **violated the due process requirements of notice**.
> ...
> ...
> As this line of cases makes clear, the law remains well settled. Essentially, provided the defendant, at some reasonable time prior to trial is apprised that the Commonwealth will seek to toll the statute, the due process requirements of notice are met. ... The notice itself, and accordingly the opportunity to defend, is the operative and most important aspect: this is the due process concern that must be satisfied.
> ...
> The Majority contends that, pursuant to Morrow and Commonwealth v. Houck, ..., the Appellant was constructively aware of the applicable statutory provision, as there was testimony that the victim was ten to twelve years old. This argument falls flat in the face of the Commonwealth's continued reliance upon the course of conduct exception, which I have rejected supra.
> ...
> Here, similarly, Appellant prepared his defense in response to the Commonwealth's express reliance upon the course of conduct exception. ... Appellant was unsuccessful in this challenge before the trial court, and the matter proceeded to trial. Unlike the situation in Morrow, the Commonwealth did not notify Appellant of its intention to toll the statute here, based upon its assertion that the course of conduct exception applied. ... In fact, it did not inform Appellant of its intention at all [I note that, in its brief, the Commonwealth declines even to address its failure to properly notify Appellant at all.] **Absent proper pretrial notice, the requirements of due process were not met.**
#### Summarizing the PA Superior Court Opinions regarding Statute of Limitations Issues
The majority argues that due process rights were not violated. (The basis for this is a little hard to follow.) The minority, dissenting opinion argues that due process rights were indeed violated. (The basis for this is much easier to follow.)
