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COMMONWEALTH PENNSYLVANIA v. BENJAMIN GOLDHAMMER (03/29/85)

decided: March 29, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
BENJAMIN GOLDHAMMER, APPELLEE



No. 83 E.D. Appeal Dkt. 1984, Appeal from the November 10, 1983 Superior Court Order entered at No. 1107, Philadelphia 1981, Reversing the Judgments of Sentence Imposed by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, on Nos. 1857 through 1862, 1866 through 1875, 1879 through 1888 and 1907 through 1914, December Session, 1979, Pa. Super. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., dissents.

Author: Nix

[ 507 Pa. Page 239]

OPINION

In the instant matter the Commonwealth appeals an order of the Superior Court in which thirty-four (34) of appellee's fifty-six (56) theft convictions were reversed on the ground that they were barred by a two-year statute of limitations. 42 Pa.C.S. § 5552(a). 322 Pa. Super. 242, 469 A.2d 601. The Commonwealth's primary argument is that the statute of limitations was tolled when it alleged in the information that the offense contained as a material element either fraud or breach of fiduciary obligation thereby constituting an exception under 42 Pa.C.S. § 5552(c)(1). In the alternative, the Commonwealth contends that this Court should order a remand instructing the trial court to resentence appellee on the remaining convictions.

I.

For approximately four years Appellee Goldhammer provided a relatively comfortable life for his family while working as controller for Lessner and Company, Inc. ("Lessner"). One day in February, 1979, however, appellee suffered a heart attack while on vacation in Las Vegas. From that point his fortunes changed. During Mr. Goldhammer's absence due to illness the president of Lessner, Henry J. Lessner, began to review the company's bank statements and cancelled checks and discovered irregularities. It was determined that between November, 1974 and January, 1979, appellee had augmented his less-than-Fifteen Thousand-Dollar-($15,000)-per-year salary by some Two Hundred Twenty Thousand Dollars ($220,000). He had, without authorization, signed his name and forged the signature of the company's secretary-treasurer to fifty-six (56) corporate checks which he either cashed or deposited in his personal checking account. To conceal his crimes, appellee

[ 507 Pa. Page 240]

    falsified the company books to reflect that the checks were drawn to pay various company accounts.

A criminal complaint was issued against appellee on October 1, 1979. Informations were later returned against appellee charging fifty-six (56) counts each of theft by unlawful taking, 18 Pa.C.S. § 3921; forgery, 18 Pa.C.S. § 4101; and theft by failure to make required disposition of funds received, 18 Pa.C.S. § 3927. The numerous informations charging theft by unlawful taking each stated:

The District Attorney of Philadelphia County does further inform that the above offense contains a material element which is either fraud or breach of fiduciary obligation and constitutes an exception under Section 108 of the Crimes Code and 42 Pa.C.S.A. § 5552.

At the preliminary hearing appellee filed an omnibus motion requesting, inter alia, that all of the theft charges be quashed on the ground that they were barred by the statute of limitations. This motion was denied and, on November 24, 1980, appellee was convicted of the fifty-six (56) counts each of theft by unlawful taking and forgery.*fn1 Appellee was initially sentenced on March 3, 1981 to two consecutive one-to-five-year prison terms representing conviction on one theft count and one forgery count. Sentence was suspended on the remaining counts. Upon reconsideration, however, the court imposed only a two-to-five-year prison term for the theft count and imposed a concurrent five-year probation for the forgery count. Sentence was again suspended on the remaining counts.

On November 10, 1983, the Superior Court vacated all of appellee's theft convictions for crimes committed before October, 1977 on the ground that they were barred by the two-year statute of limitations provided for in section 5552(a). Included among the convictions reversed was the one and only count on which appellee was sentenced to serve a prison term. The Commonwealth appealed to this

[ 507 Pa. Page 241]

Court and we granted review.*fn2 For the following reasons we now affirm the decision below.

II.

We address first whether under section 5552 the Commonwealth could extend the two-year limitation period for the offense of theft by unlawful taking by alleging in the information that such offense contains as a material element either fraud or breach of fiduciary duty. While the question before us has been touched upon by the Superior Court, see, e.g., Commonwealth v. Hawkins, 294 Pa. Super. 57, 439 A.2d 748 (1982); Commonwealth v. Eackles, 286 Pa. Super. 146, 428 A.2d 614 (1981); we have yet to lend our guidance on this issue. We will begin our analysis by briefly discussing the role of the statutes of limitations in Pennsylvania criminal law.

The statute of limitations, which provides predictable legislatively enacted limitations on prosecutorial delay, is the primary guarantee against the bringing of overly stale criminal charges. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). As we stated in Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972):

The Supreme Court observed in Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858 [25 L.Ed.2d 156] (1970): "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected

[ 507 Pa. Page 242]

    criminal activity." Id. at 114-15, 90 S.Ct. at 860. The burden of defending against long completed conduct is onerous because "[a]s time passes, witnesses upon whom the defendant may need to rely die or move away; events are forgotten and records lost, particularly if the events seemed unimportant at the time of occurrence." Note, The Statute of Limitations in Criminal Law: A Penetrable Barrier to Prosecution, 102 U.Pa.L.Rev. 630, 632 (1954).

Id., 448 Pa. at 332-33, 292 A.2d at 407-08.

We have concluded, therefore, that statutes of limitations must be liberally construed in favor of the defendant and against the Commonwealth. Id., 448 Pa. at 330, 292 A.2d at 407.

With that standard of construction in mind, we now turn to an examination of the pertinent parts of the statute of limitations involved in the case at bar. Prior to the amendment of May 13, 1982,*fn3 42 Pa.C.S. § 5552 provided in pertinent part:

§ 5552. Other offenses

(a) General rule. -- Except as otherwise provided in this subchapter, a prosecution for an offense other than murder or voluntary manslaughter must be commenced within two years after it is committed.

(b) Major offenses. -- A prosecution for any of the following offenses under Title 18 (relating to crimes and offenses) must be commenced within five years after it is committed:

Section 3123 (relating to involuntary deviate sexual intercourse).

Section 3301 (relating to arson and ...


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