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COMMONWEALTH EX REL. SMITH v. PATTERSON (03/21/62)

March 21, 1962

COMMONWEALTH EX REL. SMITH
v.
PATTERSON, APPELLANT.



Appeal, No. 274, Oct. T., 1961, from judgment of Municipal Court of Philadelphia County, Sept. T., 1959, No. 4081, in case of Commonwealth ex rel. Ester Squires Smith v. Charles L. Patterson. Judgment affirmed; reargument refused April 11, 1962.

COUNSEL

William J. Toy, for appellant.

Arlen Specter, Assistant District Attorney, with him Paul M. Chalfin, first Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 197 Pa. Super. Page 539]

OPINION BY WOODSIDE, J.

This is an appeal by Charles L. Patterson from a sentence directing him to pay $6 per week for the support of a child born out of wedlock. The sentence was imposed after his conviction of willful neglect to support the child in violation of the Act of June 24, 1939, P.L. 872, § 732, 18 P.S. § 4732. He contends that the court below erred in its refusal to arrest the judgment of sentence on the ground of the long delay between the making of the information and the trial.

The child was born May 19, 1951. The mother signed an affidavit of complaint on August 1, 1951, charging the defendant with being the father of the child. At that time the defendant was in the armed services. He was discharged December 31, 1952. Shortly thereafter, he visited the prosecutrix, and gave her $5 to buy the baby a present. However, nothing was said concerning the pending action. At this time the mother's father, who has since died, was supporting

[ 197 Pa. Super. Page 540]

    the child. No action was taken on the complaint, and the defendant knew nothing of the charge until he was summoned to a preliminary hearing on September 19, 1959.

At that time the defendant waived an indictment by a grand jury and requested a bill to be prepared with his plea of not guilty entered thereon. He was finally brought to trial and convicted on April 23, 1961. Thereafter, he moved for arrest of judgment which the court below refused. After the imposition of the sentence he appealed to this Court, contending that the failure to give notice of the pendency of the legal proceedings over the long period of time violated the requirements of the State and Federal Constitutions for a speedy trial and for due process, and that the action was barred by the statute of limitations.

Section 732, supra, provides that "all prosecutions under this section must be brought within two (2) years of the birth of the child," except under conditions not here relevant. It does not require that an indictment, which is a step in prosecution toward final judgment, must be found within that period. If the prosecution is started within two years of the birth of the child, it is immaterial that the indictment is found more than two years after the birth. The date of the information, or affidavit of complaint, and not the date of the indictment determines whether the action is barred by the statute of limitations. Commonwealth v. O'Gorman, 146 Pa. Superior Ct. 553, 22 A.2d 596 (1941); Commonwealth v. Teeter, 163 Pa. Superior Ct. 211, 60 A.2d 416 (1948). Here the affidavit of complaint was filed within three months of the birth of the child.

Article I, Section 9, of the Pennsylvania Constitution provides that "In all criminal prosecutions the accused hath a right to ... a speedy public trial ...


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