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COMMONWEALTH PENNSYLVANIA v. THOMAS LEE BAYSORE (01/03/86)

filed: January 3, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS LEE BAYSORE, APPELLANT



Appeal from the Judgment of Sentence entered March 4, 1985, Court of Common Pleas, Lycoming County, Criminal Division at No. 84-10, 873.

COUNSEL

James R. Protasio, Assistant Public Defender, Williamsport, for appellant.

Brett C. Feese, District Attorney, Williamsport, for Commonwealth, appellee.

Tamilia, Johnson and Hoffman, JJ.

Author: Johnson

[ 349 Pa. Super. Page 347]

We are here asked to decide whether the new, five-year statute of limitations applies to a theft offense committed less than two years before its enactment where prosecution was not commenced until after the former two-year limitation period had expired.

Appellant was charged with the crimes of theft by unlawful taking or disposition, unauthorized use of automobile and other vehicles, receiving stolen property and criminal mischief. The crimes occurred on or about September 9-10, 1981. The complaint was not filed until August 14, 1984 and the information was filed on September 21, 1984.

Following a non-jury trial in the form of a case stated, the trial court found appellant guilty on the first count, theft, and on the fourth count, criminal mischief. The court noted that the second count, unauthorized use of a motor vehicle, and the third count of receiving stolen property merged with the first count of theft. By way of a Motion to Dismiss, and in a timely post-verdict motion, appellant raised the claim that the statute of limitations had expired. These motions were denied and appellant was sentenced to pay costs, restitution and to an indeterminate period of incarceration to range from the minimum of 9 to a maximum of 23 months. The court suspended sentence and

[ 349 Pa. Super. Page 348]

    placed appellant on probation for three years. Appellant appeals from the judgment of sentence and raises the claim that the two-year statute of limitations in effect on the date of the commission of the crime, rather than the five-year statute presently in effect, should be applied so as to bar the prosecution.

Appellant argues that when the crimes occurred in 1981 the applicable statute of limitations was two years. Act of July 9, 1976 P.L. 586, No. 142, § 2, as amended by Act of April 28, 1978, P.L. 202, No. 53, § 10(64), as amended by Act of October 4, 1978, P.L. 873, No. 168, § 1, as amended by Act of October 5, 1980, P.L. 693, No. 142, § 206(a) (current version at 42 Pa.C.S. § 5552).

Within the two year period, by Act of May 13, 1982, P.L. 417, No. 122, § 1 (current version at 42 Pa.C.S. § 5552(b)), the legislature extended the statute of limitations applicable to the theft related counts to five years. The two-year statute for criminal mischief was not extended.

The complaint was not filed until August 14, 1984 and the information was not filed until September 21, 1984. Thus, appellant argues that although action was commenced within the amended five-year statutory period, it was commenced beyond the original ...


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