Com. v. Goldhammer

• Decision Date: 29 March 1985
• Citation: 507 Pa. 236,489 A.2d 1307
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Benjamin GOLDHAMMER, Appellee.
• Court: Pennsylvania Supreme Court

Page 1307

489 A.2d 1307

507 Pa. 236

COMMONWEALTH of Pennsylvania, Appellant, v. Benjamin GOLDHAMMER, Appellee.

Supreme Court of Pennsylvania.

Argued Jan. 22, 1985.

Decided March 29, 1985.

[507 Pa. 238] Eric B. Henson, Deputy Dist. Atty., Gaele M. Barthold (Chief/Prosecution), Marianna C. Sorensen, Asst. Dist. Attys., for appellant.

Stanford Shmukler, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

NIX, Chief Justice.

In the instant matter the Commonwealth appeals an order of the Superior Court in which thirty-four (34) of appellee's fifty-six (56) theft convictions were reversed on the ground that they were barred by a two-year statute of limitations. 42 Pa.C.S. § 5552(a). 322 Pa.Super. 242, 469 A.2d 601. The Commonwealth's primary argument is that the statute of limitations was tolled when it alleged in the information that the offense contained as a material element either fraud or breach of fiduciary obligation thereby constituting an exception under 42 Pa.C.S. § 5552(c)(1). In the alternative, the Commonwealth contends that this Court should order a remand instructing the trial court to resentence appellee on the remaining convictions.

I.

For approximately four years Appellee Goldhammer provided a relatively comfortable life for his family while working as controller for Lessner and Company, Inc. ("Lessner"). One day in February, 1979, however, appellee suffered a heart attack while on vacation in Las Vegas. From that point his fortunes changed. During Mr. Goldhammer's absence due to illness the president of Lessner, Henry J. Lessner, began to review the company's bank statements and cancelled checks and discovered irregularities. It was determined that between November, 1974 and January, 1979, appellee had augmented his less-than-Fifteen Thousand-Dollar-($15,000)-per-year salary by some Two Hundred Twenty Thousand Dollars ($220,000). He had, without authorization, signed his name and forged the signature of the company's secretary-treasurer to fifty-six (56) corporate checks which he either cashed or deposited in his personal checking account. To conceal his crimes, appellee falsified the company books to reflect that the checks were drawn to pay various company accounts.

A criminal complaint was issued against appellee on October 1, 1979. Informations were later returned against appellee charging fifty-six (56) counts each of theft by unlawful taking, 18 Pa.C.S. § 3921; forgery, 18 Pa.C.S. § 4101; and theft by failure to make required disposition of funds received, 18 Pa.C.S. § 3927. The numerous informations charging theft by unlawful taking each stated:

The District Attorney of Philadelphia County does further inform that the above offense contains a material element which is either fraud or breach of fiduciary obligation and constitutes an exception under Section 108 of the Crimes Code and 42 Pa.C.S.A. § 5552.

At the preliminary hearing appellee filed an omnibus motion requesting, inter alia, that all of the theft charges be quashed on the ground that they were barred by the statute of limitations. This motion was denied and, on November 24, 1980, appellee was convicted of the fifty-six (56) counts each of theft by unlawful taking and forgery. ¹ Appellee was initially sentenced on March 3, 1981 to two consecutive one-to-five-year prison terms representing conviction on one theft count and one forgery count. Sentence was suspended on the remaining counts. Upon reconsideration, however, the court imposed only a two-to-five-year prison term for the theft count and imposed a concurrent five-year probation for the forgery count. Sentence was again suspended on the remaining counts.

On November 10, 1983, the Superior Court vacated all of appellee's theft convictions for crimes committed before October, 1977 on the ground that they were barred by the two-year statute of limitations provided for in section 5552(a). Included among the convictions reversed was the one and only count on which appellee was sentenced to serve a prison term. The Commonwealth appealed to this Court and we granted review. ² For the following reasons we now affirm the decision below.

II.

We address first whether under section 5552 the Commonwealth could extend the two-year limitation period for the offense of theft by unlawful taking by alleging in the information that such offense contains as a material element either fraud or breach of fiduciary duty. While the question before us has been touched upon by the Superior Court, see, e.g., Commonwealth v. Hawkins, 294 Pa.Super. 57, 439 A.2d 748 (1982); Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981); we have yet to lend our guidance on this issue. We will begin our analysis by briefly discussing the role of the statutes of limitations in Pennsylvania criminal law.

The statute of limitations, which provides predictable legislatively enacted limitations on prosecutorial delay, is the primary guarantee against the bringing of overly stale criminal charges. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). As we stated in Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972):

The Supreme Court observed in Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858 (1970): "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity." Id. at 114-15, 90 S.Ct. at 860. The burden of defending against long completed conduct is onerous because "[a]s time passes, witnesses upon whom the defendant may need to rely die or move away; events are forgotten and records lost, particularly if the events seemed unimportant at the time of occurrence." Note, The Statute of Limitations in Criminal Law: A Penetrable Barrier to Prosecution, 102 U.Pa.L.Rev. 630, 632 (1954).

Id. at 332-33, 292 A.2d at 407-08.

We have concluded, therefore, that statutes of limitations must be liberally construed in favor of the defendant and against the Commonwealth. Id. at 330, 292 A.2d at 407.

With that standard of construction in mind, we now turn to an examination of the pertinent parts of the statute of limitations involved in the case at bar. Prior to the amendment of May 13, 1982, ³ 42 Pa.C.S. § 5552 provided in pertinent part:

§ 5552. Other offenses

(a) General rule.--Except as otherwise provided in this subchapter, a prosecution for an offense other than murder or voluntary manslaughter must be commenced within two years after it is committed.

(b) Major offenses.--A prosecution for any of the following offenses under Title 18 (relating to crimes and offenses) must be commenced within five years after it is committed:

Section 3123 (relating to involuntary deviate sexual intercourse).

Section 3301 (relating to arson and related offenses).

Section 3502 (relating to burglary).

Section 3701 (relating to robbery).

Section 4101 (relating to forgery).

Section 4902 (relating to perjury).

(c) Exceptions.--If the period prescribed in subsection (a) or subsection (b) has expired, a prosecution may nevertheless be commenced for:

(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

....

Under a plain meaning interpretation of this statute, the two-year limitation period is excepted if the offense charged contains as a material element either fraud or a breach of fiduciary obligation. Thus we must determine whether theft by unlawful taking contains as a material element either fraud or a breach of fiduciary obligation.

Theft by unlawful taking is statutorily defined by 18 Pa.C.S. § 3921:

§ 3921. Theft by unlawful taking or disposition

(a) Movable property.--A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

(b) Immovable property.--A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.

The legislature has defined "Material element of an offense" at section 103 of the Crimes Code:

An element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with: (1) the harm or evil incident to conduct, sought to be prevented by the law defining the offense; or (2) the existence of a justification or excuse for such conduct.

18 Pa.C.S. § 103.

Thus to be considered a material element of the crime of theft by unlawful taking, fraud or breach of fiduciary duty must be connected with the harm or evil sought to be prevented by section 3921 of the Crimes Code, 18 Pa.C.S. § 3921, namely, the unlawful taking of the property of another. We find no such nexus exists.

First, it is clear that section 3921 on its face makes neither fraud nor breach of fiduciary duty an element required to sustain a conviction for theft by unlawful taking. Under subsection (a) of section 3921, the Commonwealth must prove that the defendant (1) unlawfully took or exercised control over (2)...