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COMMONWEALTH PENNSYLVANIA v. ROBERT A. MALENO (07/13/79)

decided: July 13, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT A. MALENO, APPELLANT



No. 1504 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division at No. 3439-76, April 28, 1977.

COUNSEL

A. Charles Peruto, Philadelphia, for appellant.

Eric J. Cox, Assistant District Attorney, Chief, Appeals Division, Norristown, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., concurred in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 267 Pa. Super. Page 561]

Appellant, Robert A. Maleno, appeals from convictions of Criminal Conspiracy, Theft by Deception, Deceptive Business Practices, and Aiding in the Consummation of a Crime. Maleno owned and operated an employment agency "RAM Associates" in Montgomery County. At a jury trial before the Honorable Frederick B. Smillie, it was found that during 1973 and 1974, Robert A. Maleno entered into a conspiracy with Frank P. Lennon, then head of the Industrial Relations Department of the Wiedemann Division of the Warner

[ 267 Pa. Super. Page 562]

Swasey Company, whereby appellant Maleno invoiced Warner Swasey for professional placement services in connection with five persons hired by Warner Swasey when no such services were performed by RAM Associates. Several issues are raised on this appeal.

Appellant first contends that the statute of limitations had run on the crimes for which he was prosecuted. The Pennsylvania Crimes Code, 18 Pa.C.S.A. 108, "Time Limitations", poses a general limitation of two years from the commission of the crime until the filing of the criminal complaint. However, under 18 Pa.C.S.A. 108(c)(1) "Exceptions", a prosecution may be commenced up to five years from the commission of a crime if fraud or breach of fiduciary duty is a material element of the offense and the complaint is filed within one year from the discovery of the crime.

This exception is applicable to the instant case and the prosecution of appellant was commenced within the time limits of 18 Pa.C.S.A. 108(c)(1). Robert A. Maleno was charged with inter alia, Deceptive Business Practices (18 Pa.C.S.A. 4107) and Theft by Deception (18 Pa.C.S.A. 3922). Fraud is a material element of both offenses. Although the last crime, which was the object of the conspiracy, was committed on February 10, 1974, the crimes were not discovered until April of 1976. The criminal complaint was filed on June 28, 1976 -- within a year after the crime was discovered and within five years from the time the crime was committed. Appellant was timely prosecuted for the crimes charged.

Appellant further alleges that the Commonwealth failed to comply with the terms of Rule 1100 of the Pennsylvania Rules of Criminal Procedure, and that he should be discharged accordingly. Specifically he argues that:

1. The Commonwealth failed to establish that any delay was attributable to the defense;

2. The Commonwealth failed to prove "with particularity" its inability to try the case within ...


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