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COMMONWEALTH v. MOEHRING (03/12/70)

decided: March 12, 1970.

COMMONWEALTH
v.
MOEHRING, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Allegheny County, Oct. T., 1966, No. 601, in case of Commonwealth of Pennsylvania v. Ernestine M. Moehring.

COUNSEL

Emanuel Goldberg, for appellant.

Robert L. Campbell and Carol Mary Los, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Concurring Opinion by Montgomery, J. Spaulding, J., joins in this concurring opinion.

Author: Per Curiam

[ 216 Pa. Super. Page 136]

Judgment of sentence affirmed, and the defendant is directed to appear in the court below at such time as she may be there called, and that she be by that court committed until she has complied with the sentence, or any part thereof which had not been performed at the time the appeal was made a supersedeas.

Disposition

Judgment of sentence affirmed.

Concurring Opinion by Montgomery, J.:

Statute of Limitations

The first question raised by appellant in this appeal from her sentence on the charge of subornation of perjury is whether the statute of limitations barring such prosecution is five years or two years. The Act of March 31, 1860, P. L. 427, as amended, 19 P.S. § 211, places perjury within the five-year limitation but fails specifically to state the limitation for subornation of perjury. Appellant argues, therefore, that she comes under the two-year limitation applicable to all crimes not specifically covered by the Act. I do not accept this argument. The crimes of perjury and subornation of perjury are both defined in the same section of The Penal Code of June 24, 1939, P. L. 872, § 322, 18 P.S. § 4322, which provides the same penalty for both crimes. Furthermore, the two crimes consist of the same elements, with subornation of perjury having the additional element that the defendant induced, persuaded, and instigated the suborned victim to commit perjury.

[ 216 Pa. Super. Page 137]

    would have become effective on October 25, 1966. It was at this time that it was discovered that the transcript involving appellant did not include Robert G. Johnston as one of those suborned, and for that reason the amendment, about which complaint is now made, was requested. The application for this amendment was made in the forenoon of October 21, 1966, in the presence of appellant's counsel, but was not allowed by the court until a hearing had been held that afternoon, at which the justice of the peace, whose transcript was being questioned, testified that the original complaint, filed with him by County Detective Nicholas A. Schifino, had charged appellant with suborning both Mr. and Mrs. Johnston. In view of this procedure, appellant, nevertheless, first argues that the amendment was improperly allowed because no written application was filed in accordance with Rule 126 of the Rules of Criminal Procedure. The rule does not provide for a written application unless we are constrained to infer that meaning from the use of the word "filed." However, I ...


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