No. 149 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, at No. CC 7802146A (1321 of 1978).
Sally A. Frick and G. William Bills, Jr., Pittsburgh, for appellant.
Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Brosky and Hoffman, JJ.
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Following a jury trial, appellant was convicted of twenty-seven counts each of theft by deception, receiving stolen property, and misapplication of government property, as well as one count each of tampering with witnesses and criminal conspiracy. For the reasons that follow, we find appellant's contentions meritless and, accordingly, affirm the judgment of sentence.
Appellant contends that the lower court erred in denying his pre-trial motion to dismiss the charges on the ground that the statute of limitations had expired. All of the offenses relate to a ghost employee scheme perpetrated while appellant was the director of the Allegheny County Department of Manpower (ACDOM). They would, therefore, be subject to the two-year statute of limitations contained in 18 Pa.C.S.A. § 108(b)(2) (repealed).*fn1 However,
[i]f the period prescribed in [18 Pa.C.S.A. § 108(b)(2)] has expired, a prosecution may nevertheless be commenced for:
(2) Any offense committed by a public officer or employe in the course of or in connection with his office or employment at any time when the defendant is in
[ 295 Pa. Super. Page 435]
public office or employment or within two years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.
18 Pa.C.S.A. § 108(c)(2) (repealed). Appellant argues that subsection 108(c)(2) of the Crimes Code requires that the prosecution of a public officer or employe be commenced within two years of his leaving the particular "public office or employment" occupied at the time he committed the offenses charged.*fn2 Accordingly, because the informations were not filed until April 20, 1978, two years and one day after appellant left ACDOM, his prosecution would be barred by the statute of limitations. We disagree. Appellant's construction of subsection 108(c)(2) is unduly restrictive. The phrases "public officer or employe" and "office or employment" are not limited or qualified. By contrast, the predecessor to subsection 108(c)(2) contained an express limitation or qualification of the nature advocated by appellant.
And provided also, That indictments for malfeasance, misfeasance, or nonfeasance in office, or for extortion or blackmail by color of office, or for embezzlement of public moneys or property, or for any misdemeanor in office, or for any conspiracy to commit any of said offenses heretofore or hereafter committed by any officer or employe of this Commonwealth or of any agency thereof, or of any city, county, borough, township, or school district or of any agency thereof, and their accomplices and confederates, may be brought or exhibited at any time within two years from the time when said public officer or said employe shall have ceased to occupy such office or such employment, but in no event more than six years from the commission of the offense.
Act of March 31, 1860, P.L. 427, § 77, as amended by the Act of April 6, 1939, P.L. 17, § 1; ...