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COMMONWEALTH PENNSYLVANIA v. LEROY JOHNSON (01/27/89)

decided: January 27, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LEROY JOHNSON, APPELLEE



Appeal from the Order of the Superior Court Dated March 13, 1987, at No. 3172 Philadelphia 1985, Reversing the Judgment of the Court of Common Pleas of Delaware County, Criminal Division, Entered at No. 5195 of 1983, on November 27, 1985. Pa. Super Ct. , A.2d (1987).

COUNSEL

Sandra L. Eilas, Deputy Dist. Atty., Vram Nedurian, Jr., Deborah Fleisher, Asst. Dist. Attys., for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., for amicus curiae Philadelphia Dist. Atty.

John G. McDougall, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Papadakos

[ 520 Pa. Page 166]

OPINION OF THE COURT

The issue which we are called upon to decide in this case is whether the legislature intended that the new five-year statute of limitations period for rape be applied to offenses not already time-barred by the former two-year period as of the date the new five-year statute became effective. We have concluded that the new five-year statute was intended to apply to such offenses and, hence, we reverse the Superior Court 365 Pa. Super. 643, 526 A.2d 813, on this point.

The facts in this case are as follows. A criminal complaint charging Leroy Johnson, Appellee, with rape (18 Pa.C.S. § 3121), statutory rape (18 Pa.C.S. § 3122), and related offenses was filed on September 13, 1983. The complaint alleged that over a period of time beginning in the Fall of 1977 up to and including August of 1980, Appellee sexually assaulted and raped the minor daughter of a woman with whom he lived during that same period. Effective less than two years after the last alleged rape, by Act of May 13, 1982, P.L. 417, No. 122, Section 1(b), effective in 60 days ("Act 122"), the legislature amended 42 Pa.C.S. § 5552 to extend the statute of limitations for rape, and other major offenses, from two to five years. "A prosecution for any of the following offenses must be commenced within five years after it is committed: . . . ."

On June 1, 1984, Appellee was convicted by a jury of rape. The Court of Common Pleas of Delaware County sentenced Appellee to five to fifteen years imprisonment, payment of restitution to the victim, and psychological treatment, if necessary, as a condition of parole. In a brief, unpublished memorandum opinion, the Superior Court reversed and ordered that Appellee be discharged. Although

[ 520 Pa. Page 167]

    the five-year limitations period was in effect when this prosecution commenced, the Superior Court discharged Appellee because he was prosecuted more than two years after his last criminal act. The Court ruled that the disposition of this case was controlled by Commonwealth v. Baysore, 349 Pa. Superior Ct. 345, 503 A.2d 33 (1986), allocatur denied September 30, 1986, in which the Superior Court had held that, although 42 Pa.C.S. § 5552, as amended by Act 122, did not amount to passage of an ex post facto law, it was inapplicable to crimes committed before its effective date (but which were not already time-barred) because it does not explicitly state that it applies "retroactively" to such crimes. We granted the Commonwealth's petition for allowance of appeal in this case because it has become increasingly apparent to us that Baysore, supra, was decided incorrectly.

In Baysore, we think that the Superior Court correctly concluded that there was no violation of the constitutional ban on ex post facto laws. The case is virtually identical to the matter presently on appeal except that in Baysore, the court was dealing with Act 122's extension of the statute of limitations ...


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