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COMMONWEALTH PENNSYLVANIA v. BENJAMIN HARVEY (06/01/88)

filed: June 1, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
BENJAMIN HARVEY, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 84-11-874.

COUNSEL

Stanton M. Lacks, Philadelphia, for appellant.

Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia and Popovich, JJ. Popovich, J., concurs in the result. McEwen, J., files a dissenting opinion. Tamilia, J., files a dissenting statement.

Author: Rowley

[ 374 Pa. Super. Page 291]

This is an appeal from a judgment of sentence of four to ten years imprisonment imposed following appellant's conviction by a jury of rape. The primary*fn1 issue to be resolved is whether the five year statute of limitations for rape, 42 Pa.C.S. § 5552(b), should be applied where the statute of limitations in effect when the crime occurred was a two

[ 374 Pa. Super. Page 292]

    year period, but where a five year statute of limitations became effective before the two year period expired. We hold that it applies, and we affirm the judgment of sentence.

Between 1976 and July 1981, appellant lived with his girlfriend and the girlfriend's daughter, the victim herein. On numerous occasions during the period that appellant lived with the victim, and ending in May or July of 1981 when the victim was eleven years old, the appellant had sexual intercourse with the victim. At this time a two-year statute of limitations for rape was in effect, thereby requiring the prosecution to be commenced no later than July, 1983. 42 Pa.C.S. § 5552(a). However, effective July, 1982, before the two year period expired, the period within which a prosecution for rape had to be commenced was lengthened to five years. 42 Pa.C.S. § 5552(b). In May, 1984, after the two-year period had expired, but still within the five year period, the police were first notified of the crime and appellant was charged with rape, statutory rape, corruption of minors, and involuntary deviate sexual intercourse. He was subsequently acquitted by a jury of the involuntary deviate sexual intercourse charge, but found guilty of all the other charges.

Appellant filed timely post-trial motions, and new counsel was appointed to pursue claims of ineffective assistance of trial counsel. Consequently, amended post-trial motions were filed, and an evidentiary hearing on the ineffective assistance of counsel issues was held. Thereafter, the trial court granted an arrest of judgment as to the statutory rape and corruption of minors convictions, but denied the remaining post-trial motions. Following sentencing, appellant brought the instant appeal.

On appeal, appellant argues that the prosecution for rape was barred by the two-year statute of limitations for rape in effect when the rape occurred despite the enactment, after the rape was committed but before the two year statute of limitations expired, of a new five year statute of limitations within which the present action was commenced.

[ 374 Pa. Super. Page 293]

Appellant contends that the panel decision in Commonwealth v. Baysore, 349 Pa. Super. 345, 503 A.2d 33 (1986), which held, under facts substantially similar to those in this case, that the five year statute of limitations did not apply, is controlling here. Argument before the court en banc was scheduled on this issue. For the reasons which follow we overrule Baysore and conclude that the five year statute of limitations applies to a crime committed less than two years before the enactment of the five year statute even though the prosecution was not commenced until after the former period of limitation had expired.

In Baysore, as in the present case, a two year statute of limitations was in effect on the date the crime was committed. 42 Pa.C.S. § 5552(a). However, in both cases, before commencement of the prosecution was barred by expiration of the two year period of limitations, the legislature amended the statute of limitations to provide for a five year period of limitations. Act of May 13, 1982, P.L. 417, No. 122 § 1 [current version at 42 Pa.C.S. § 5552(b)] (hereafter, Act 122). This amendment did not state whether it was to be applied retroactively, but simply provided that it was to become effective in 60 days. Act 122 provided in relevant part that "a prosecution for [rape] must be commenced within five years after it is committed."

The panel in Baysore noted that the statute itself was silent as to its retroactive application. However, the court also observed that in at least one other statute, the legislature had expressly provided for retroactive application by stating this Act "shall take effect immediately and shall be retroactive to . . . ." See: Act of December 20, 1982, P.L. 1409, No. 326, § 404. Relying upon the statutory rule of construction that a statute shall not be given retroactive application unless "clearly and manifestly so intended by the General Assembly,", 1 Pa.C.S. § 1926, the panel in Baysore held that the legislature did not clearly and manifestly intend for Act 122 to be applied retroactively to crimes occurring before its enactment.

[ 374 Pa. Super. Page 294]

When interpreting a statute, our primary objective is to ascertain and effectuate the intention of the legislature giving full effect to each word of the statute if at all possible. 1 Pa.C.S. §§ 1921(a), 1922(2); Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980); Fireman's Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa. Super. 497, 464 A.2d 431 (1983). While we recognize the rule of construction regarding retroactivity set forth in 1 Pa.C.S. § 1926, and relied upon by the panel in Baysore, we find it to be inapplicable to either Baysore or the present case because it is clear from the words of the statute itself that the legislature intended for the new period of limitations to apply to cases such as the present one. Following the analysis of Judge Hester, expressed in his Concurring Memorandum accompanying the unpublished panel decision in this case, we also conclude that such application is not a retroactive application but a prospective one.*fn2

In the present case, the precise terms of the five year statute of limitations are that "a prosecution for [rape] must be commenced within five years after it is committed." Act 122. Thus, by the express terms of the statute, the action or thing to which the new five year period applies is the commencement of a ...


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