Petition for Allowance of Appeal Denied June 11, 1990.
David Crowley, Asst. Public Defender, Mercer, for appellant.
W. Jeffrey Yates, Asst. Dist. Atty., Bellefonte, for Com., appellee.
Montemuro, Melinson and Hester, JJ.
[ 391 Pa. Super. Page 164]
Appellant, Richard Allen Bethlehem, appeals from judgment of sentence imposed following convictions of rape, statutory rape, and involuntary deviate sexual intercourse arising from his sexual abuse of his young niece. Bethlehem contends that this action was brought outside the applicable statute of limitations. Regrettably, appellant is correct and we are constrained to reverse the convictions and discharge appellant.
This appeal presents the following four questions relating to the application of various statute of limitations provisions to the facts of this case.
I. Whether the applicable two and five year statute of limitations periods for the offenses alleged (42 Pa.C.S.A. § 5552 (a & b)) were tolled pursuant to 42 Pa.C.S.A. § 5554(3).
II. Whether the complaint stated the time of the offenses with the "reasonable degree of specificity" required.
III. Whether the Commonwealth established beyond a reasonable doubt that the offenses occurred within the applicable limitations periods.
IV. Whether the trial court erred in failing to instruct the jury with regard to the factual determination that the offenses occurred within the limitations periods.
We shall discuss these interrelated questions, seriatim.
I. Tolling of the Statute of Limitations
Prior to trial, Bethlehem moved to have the complaint dismissed because it alleged offenses outside the applicable statute of limitations. The complaint against Bethlehem was filed June 3, 1987. Though the complaint initially alleged that Bethlehem continued to sexually abuse the
[ 391 Pa. Super. Page 165]
victim during family visits to the victim's former residence after she and her parents moved from Bellefonte, the victim repeatedly testified at the preliminary hearing that the offenses occurred only while she lived in Bellefonte with her parents. The Commonwealth presented no evidence that the assaults continued after the move from Bellefonte. Bethlehem presented uncontradicted evidence that the victim and her family moved from Bellefonte on or before May 17, 1982, which would place the assaults outside the applicable limitations periods for the offenses charged. Bethlehem's motion to dismiss on statute of limitations grounds was denied at the preliminary hearing.
Bethlehem renewed the request for dismissal in pretrial motions, and an evidentiary hearing was conducted during which additional evidence was presented in support of Bethlehem's dismissal motion. Again, the Commonwealth made no attempt to challenge or cast doubt upon the claim that the victim had moved from Bellefonte prior to May 17, 1982, despite the fact that the complaint in this case was filed, on June 3, 1987, more than five years after May 17, 1982. Rather, the sole argument raised by the Commonwealth was that this Court's decision in Commonwealth v. Fanneli, held that time elements were not controlling in cases involving minors.
By way of response, counsel for Bethlehem disputed that the case cited stood for the broad proposition urged, and argued that the only way the running of the statute of limitations for crimes against minors would be tolled was when the father or a guardian was the perpetrator, which was not the case here. The Commonwealth made no reply, and in no way attempted to establish that the provisions of 42 Pa.C.S.A. § 5554(3) applied under the facts of this ...