*1 A. Yes. I think that of time Mr. during period Strickland’s father had hired me he was unavailable. There was some funds due me still from already my working and the think it was appeal hearing. which was to me and approximately ultimately paid $1200 I said that I could not afford to back before the just go Supreme Court on own unless I received some funds my and there were no funds at available that time.
Q. Did that to Mr. you convey Strickland following before hearing Judge Savitt?
A. I don’t have actual recollection so. doing Q. But at some it was point him or his conveyed were not family you going prosecute the appeal because funds were due you?
A. Right. 24, N.T. March added). 140-41 (emphasis Mr. Johnson’s is that testimony was informed at some point that his would not appeal until Mr. pursued Johnson was paid. “some Unfortunately, point” appar- ently after the long had filing appeal expired. did not Appellant clearly and voluntari- knowingly waive his ly appellate rights.
Superior Court of Pennsylvania.
Submitted June 1982.
Filed Nov. Petition for Allowance of Appeal April Granted *2 Defender, Philadelphia, DeMasse, Public Elaine Assistant for appellant. General, Norris- Niemtzow, Attorney Deputy M.
Stuart Commonwealth, town, appellee. JOHNSON, JJ. HESTER, CIRILLO
Before CIRILLO, Judge: *3 of Sentence Judgment from
This is appeal whereby County, Pleas of Philadelphia Court Common impris- to terms of Askin, sentenced Martin was appellant, months than 23 4 months nor more not less than onment of probation. term of 5 years and a concurrent that the appellant, evidence reveals The Commonwealth’s Medical of the 817 operator was the principal a pharmacist, December, along until from May, Center administrator, and and Martorano, a pharmacist Joseph the Common- Gutman, During period, a dentist. Jesse based upon reimbursements for Medicaid wealth was billed with- had signed, which the three co-defendants invoices on Norman Taweel and authorization, of John the names out the Medical briefly had worked Weiss, two doctors who to services provided did not apply The invoices Center. or pharmacists. dentists investigation, 6,1980, jury following grand February
On charges. criminal on numerous was arrested the appellant of, the matter were disposed motions several pre-trial After the Honorable 9, 1981 before to trial on February proceeded The DiBona, appellant without a Jr., jury. sitting Alfred with 11 counts of and one count Forgery1 and on February 1981 he was found Conspiracy,2 guilty on all which, counts. The filed motions appellant post-trial after argument, were denied DiBona. On by Judge July 1981 the was sentenced to 10 concurrent terms of 4 to 23 months and terms imprisonment, of 5 and 3 years years probation to served with the concurrently prison sen- tence. now appeal This follows. on appellant contends, trial court appeal,
erred in him of convicting applicable expired. limitations had Time limitations for the prosecution offenses are for under 18 provided 108(b) as follows: (b) Other offenses.—Except provided as otherwise section, prosecutions for other are subject offenses to the following periods of limitation:
(1) A prosecution any following offenses under this code must be commenced within five years after it is committed: to
Section deviate sexual (relating involuntary intercourse) to
Section arson related (relating offenses) to Section (relating burglary) Section 3701 to (relating robbery) Section (relating forgery) Section (relating perjury) A(2) other under offense this code must be commenced within two after- it is commit- *4 ted. of on Bills Information which the Commonwealth trial
proceeded to averred actions that occurred between 21, and June July 3, 1975 1976. Clearly, the was commenced. The forgery timely asserts, how- appellant 6, 1972, 1482, 1; 334, 1. Act of December P.L. No. § Pa.C.S.A. 4101. § Id.; by 202, April as amended the of Act P.L. No. 7(2); § 18 Pa.C.S.A. § in listed section ever, is conspiracy specifically that since 108(b)(2) within the of section provision it falls 108(b)(1), within and, therefore, years an action must be commenced committed, is or it is barred. after the conspiracy Eakles, 286 428 A.2d In v. Pa.Super. Commonwealth counts multiple was found of (1981), guilty the appellant one count of theft unlawful and by taking, of and forgery a governmen- out of a scheme defraud conspiracy arising The trial court arrested subsequently judgment tal agency. This unlawful Court taking. on the convictions for theft by as the sentences lower court’s well as ruling affirmed the even forgery conspiracy, the conviction of and imposed for the time of the between years passed more than though Likewise, in criminal and the of filing Complaint. act 57, 439 Hawkins, v. Pa.Super. Commonwealth of multiple convicted (1982), by jury and receiving property counts of theft stolen by deception, and one count of documents securing by deception, execution the appellant’s of This Court affirmed conspiracy. criminal and securing all counts of theft deception convictions on one and the count deception, execution of documents by Eakles, as also took charges in these Again, conspiracy. of the criminal than two before filing more place Complaint. it clear the crime of con decisions make
These it a statute of limita carry two-year does not spiracy it the tions, but rather carries with same statute limita for which the defendant tions as the most serious crime Indeed, such an outcome coin could be convicted. properly intent, as in 18 expressed cides with legislative 905(a): otherwise sec- (a) as Grading.—Except provided are crimes tion, solicitation and attempt, conspiracy the most offense degree same serious which grade object is or solicited or is conspiracy. attempted An or to commit murder solicitation attempt, is a or a second degree felony first felony degree.
534
Thus, in instance, the statute of limitations for was five same years, period limitations as for We therefore find forgery. this contention of the appel lant to be without merit as the prosecuting charge conspiracy had not yet expired.
The
also
that the
appellant
contends
trial court erred by
allowing
Commonwealth to introduce evidence of other
not
in the
activity
charged
Bills of Information. Although,
evidence
generally,
of the commission of offenses not
in the
charged
information is not admissible,
there are
where the acts
exceptions
not charged
show,
tend to
inter
motive, intent,
alia,
malice,
or a
identity,
common plan,
scheme, or
Commonwealth
design.
v. Styles,
494 Pa.
thousands of invoices for Medicaid reimbursement, both for services rendered and for purportedly prescriptions purport edly dispensed, even there though was no licensed physician on the premises. The appellant avers that elicited testimony Commonwealth, indicating controlled substances sold, were being addicts, essentially drug was irrelevant However, highly prejudicial. type treatment and type drugs prescribed was quite relevant to a determi nation of the motivation of the co-conspirators. All of their allowed the activity trial to infer judge that the motivation of the co-defendants for this scheme was to obtain substan tial sums of to which money were not they entitled. There fore, evidence of other activity the informa tion admitted, and the properly trial court did not err in this instance. when the court
Additionally, sits alone as the finder of fact, it is well-settled that the trial must be judge presumed to be able to disregard evidence, inflammatory and to consider evidence for the only legitimate purpose which it is elicited. Commonwealth v. Davis, Pa. v. Pa.Su- Wright, Commonwealth (1980); A.2d even if the (1975). Consequently, per. *6 information in the activity regarding testimony attribute to could judge trial prejudicial, was somewhat any delete- negating its hence weight, the testimony proper rious effect. of of the Sentence we affirm Judgment
Accordingly, below. Court of affirmed.
Judgment sentence J., a JOHNSON, dissenting opinion. files JOHNSON, Judge, dissenting: affirms Appel- The majority I most dissent. respectfully eleven counts on convictions for lant’s sentence judgment Al- conspiracy.2 and one count of criminal of forgery1 the trial court did not with the majority I though agree of other introduction of evidence err in permitting determination on the with their disagree criminal activity, limitations for conspiracy. issue the statute of issue deter- first The majority disposes Appellant’s for criminal conspir- that the statute limitations mining carries that criminal years, is not two but acy the most serious crime with it the limitations this convicted, in case which could be Appellant properly forgery. to a grand pursuant
The record indicates that complaint, 6, 1980. The filed on February jury presentment, to count of criminal conspir- pursuant information filed “.. . on or about July were committed states the crimes acy 3,1976 June and 21,1975 up including on divers dates to and were not charges clear from these facts ...” It is within two brought years.
1. 18 4101. § Id., §
The limitations statute on criminal prosecutions, Pa.C. 108,3 S.A. states in part:
(b) Other Offenses.—Except otherwise provided section, for other prosecutions offenses are to the subject following of limitation: periods
(1) A following offenses under this code must be commenced within five after it is committed:
Section 3123 to deviate sexual (relating involuntary intercourse)
Section to arson related (relating offenses) Section 3502 (relating burglary) Section 3701 (relating to robbery) Section 4101 (relating forgery) *7 Section 4902 (relating to perjury) (2) A prosecution for other under this offense code years must be commenced within it two after is commit- ted. as criminal is not
Clearly,
enumerated
the
conspiracy
list
crimes
a five
having
year
period,
limitations
subsec-
(b)(2)
Also,
tion
must
although it is clear that where
apply.
is the
it
conspiracy
crime
is considered to be a
charged,
offense,
Volk,
Commonwealth v.
298
continuing
Pa.Super.
294, 444
1182
A.2d
it is also
(1982),
clear
conspiracy
must
within two
after
prosecuted
the commission of
offense, Commonwealth
the last
v. Volk,
see also
supra;
Kirk,
Commonwealth v.
346,
340 Pa.
17 A.2d
(1941);
195
Fabrizio,
45,
Commonwealth v.
197
determination. In Hawkins, neither Commonwealth v. 294 57, 439 748 Pa.Super. (1982), A.2d nor Commonwealth v. Eackles, 286 428 A.2d Pa.Super. (1981) 614 was this court presented with the issue raised in the instant case. Therefore, I must disagree with the these majority that 3. 18 Pa.C.S.A. 42 § was reenacted in Pa.C.S.A. effective § June a conspiracy cases make clear that does not it carry fact, limitations. In as stated in Com- statute of two-year Hawkins, id., Ct. at monwealth v. Pa.Superior 749; applicable statute of limitations general “[t]he which was convicted is two upon to the charges Appellant 108(b)(2).” 18 Pa.C.S.A. years. § that the Pa.C. disagree grading provisions further intent concerning 905(a) provide any legislative S.A. § states, in 905(a) part, merely statute of limitations. Section degree is crime the same as grade a conspiracy is an object conspiracy. the most serious offense which fiduciary because neither fraud nor breach of Finally, is a material element the offense of obligation conspiracy, two limitations as found in year period, exceptions fraud is not 108(c)4 do not apply, proof Pa.C.S.A. § See Common- essential to a conviction for conspiracy.5 Hawkins, wealth v. supra. that since the convic- alleges conspiracy further
Appellant on invoices invalid, is convictions for based forgery tion discharged. also be co-defendant must signed by Appellant’s bill, a that without valid argues Appellant a conviction based on sustain forgery Commonwealth cannot 108(c) states: (b) (c) period prescribed of this Exceptions.—If in subsection may expired, commenced nevertheless be section has for: *8 (1) Any is fraud a element of which either or offense a material discovery year fiduciary obligation of within one after breach by by person legal aggrieved party or a who has the offense an aggrieved party duty represent himself a an and who is not to offense, paragraph extend party but in case shall this the the no to years. by period applicable more three than of limitation otherwise public employee (2) by or in the Any a officer offense committed employment any his office or or in connection with course of public employment or or is in office time when defendant paragraph thereafter, in no case shall this but within two by applicable more than otherwise extend the of limitation years. three allege, required exception to be did as 5. The information valid, of the crime. See Common- a element that fraud was material Eackles, supra. wealth v. items someone other than signed Appellant by by only alleging proving accomplice liability. information with forgery Appellant all subsections of section charges 4101:
(a) if, Offense defined:—A is person guilty forgery with intent defraud or anyone, to or with knowl- injure edge he is a fraud or facilitating injury be perpe- trated actor: by anyone, (1) alters writing of another without his any authority; (2) makes, completes, executes, authenticates, issues or transfers so that it writing to be the act any purports another act, who did authorize that or to been have time executed at a or or in a place numbered sequence other than in fact the or to case, was be a an copy of existed; such original when no or original (3) writing utters which he knows to be in a forged manner in or specified of this paragraphs (1) (2) subsec- tion.
I find meritless for Appellant’s argument two reasons. First, as with subsection can Appellant (3), he be if, found intent or the guilty forgery requisite he utters a he knowledge, writing which knows to be forged. Therefore, the actor need not a be actually sign writing under statute. guilty See Commonwealth v. Lee, Also, Pa. (1981). Commonwealth v. Perkins, 485 Pa. 401 A.2d (1979) (3-3 now decision), Chief Justice stated in O’BRIEN his OPINION IN SUP- PORT OF AFFIRMANCE that can one convicted as accessory though only charged as principal under Code, Crimes well as under the old Penal Code. therefore merit to the find no argument forgery on convictions based invoices not must signed Appellant also be reversed.
In I would reverse summary, Appellant’s judgment sentence on conviction and affirm the judg- ment of on the sentence conviction. forgery