Appeal from the Order of the Court of Common Pleas, Chester County, Criminal Division at No. 1257-87
Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellant.
Robert M. Burkholder, Jr., West Chester, for appellee.
Cavanaugh, Brosky and Montemuro, JJ.
[ 378 Pa. Super. Page 574]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas, Chester County, dismissing as time barred the charges of statutory rape, indecent assault, corruption of minors and endangering the welfare of children against appellee, Lloyd William Bell. The sole issue before us is whether passage of 42 Pa.C.S.A. § 5554(3) operates to toll periods of limitation which have already
[ 378 Pa. Super. Page 575]
commenced. We must conclude that it does and accordingly reverse the order appealed from.
Appellee was charged with rape, statutory rape, indecent assault, corruption of minors and endangering the welfare of children by criminal complaint dated May 21, 1987 in connection with his alleged sexual molestation of his minor daughter.*fn1 At his preliminary hearing, the Commonwealth introduced the testimony of the victim to establish that appellee had perpetrated the acts underlying his charges dating back to 1980 and continuing until August of 1984. Appellee filed a petition for Writ of Habeas Corpus and Modification of Bail in which he alleged that he could not be prosecuted for the offenses of statutory rape, indecent assault, corruption of minors and endangering the welfare of children as the Commonwealth failed to file a complaint relating to these offenses within the two year statute of limitations prescribed by 42 Pa.C.S.A. Section 5552(a). After a hearing on appellee's petition, the trial court dismissed the above mentioned charges as time barred. Thus, the only charge which remained viable after the court's order was the rape charge which carried a five year statute of limitations at the time of the alleged offense. The Commonwealth filed the instant appeal and deferred prosecution of the rape charge against appellee pending the result of the instant appeal.
On appeal, the Commonwealth concedes that prosecution for offenses allegedly committed by appellee prior to September 9, 1983 was time barred in that the two year statute of limitations relating to these offenses expired. However, the Commonwealth contends that the trial court erred in concluding that prosecution for the above mentioned offenses which appellee allegedly committed on or after September 9, 1983 was time barred because the two year statute of limitations applicable to the prosecution of said offenses was tolled on September 8, 1985, the effective date of 42 Pa.C.S.A. § 5554(3), which provides in pertinent part:
[ 378 Pa. Super. Page 576]
Except as provided by section 5553(e) (relating to disposition of proceedings within two years), the period of limitation does not run during any time when:
(3) a child is under 18 years of age, where the crime involves injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of the child's parents or by a person responsible for the child's welfare, or any individual ...