Appellant Benjamin Goldhammer was convicted of 56 counts each of theft by unlawful taking and forgery following a non-jury trial before the Honorable Michael E. Wallace. Post-trial motions were denied and appellant was sentenced to two consecutive sentences of imprisonment. The court granted appellant’s petition for modification of sentence and resentenced him to a two to five year term of imprisonment on one count of theft and five years probation on one count of forgery. Sentence on the remaining counts was suspended.
On this direct appeal, appellant raises the following issues:
(1) The court erred in refusing to suppress evidence obtained from appellant’s attorney, from his bank and pursuant to an arrest warrant, the affidavit for which contained inaccurate information.
(2) The evidence was insufficient to sustain the forgery convictions.
(3) Many of the theft charges were barred by the statute of limitations.
We affirm in part and reverse in part.
Appellant had been employed as controller for Lessner and Company, Inc., a mechanical contracting corporation, since 1974. In February 1979, appellant suffered a heart attack while on vacation in Las Vegas. Henry J. Lessner, the president of the corporation, began to review the current bank statements and cancelled checks in appellant’s absence. After investigation, he discovered a total of 57 checks 1 bearing the apparently forged signature of Richard J. Kates, one of the authorized signatories. It was ultimately discovered that those checks had either been cashed by appellant or deposited into his checking account. The evidence presented at trial included certain of appellant’s bank records which had been given to Lessner’s counsel by *246 appellant’s counsel, records which had been obtained from appellant’s bank pursuant to a lawful subpoena issued after appellant’s arrest, testimony from Mr. Lessner and Mr. Kates, and the testimony of a questioned document examiner who compared the handwriting on the checks in question with exemplars obtained from appellant, Mr. Kates and Mr. Lessner.
Appellant first argues that the court should have suppressed the bank records obtained by Lessner’s attorney from appellant’s attorney. These records were volunteered to Lessner’s attorney for the purpose of convincing Lessner that appellant had spent most of the money and to induce Lessner to accept a settlement in the form of a second .mortgage on appellant’s house. No settlement was ever worked out and Lessner subsequently turned the bank records over to law enforcement officials after he had filed the criminal complaint. It has long been established that the Fourth Amendment’s prohibition against illegal search and seizure applies only to the actions of governmental authorities, not to the actions of private persons.
Burdeau v. McDowell,
Appellant further argues that the bank records obtained from Fidelity Bank should have been suppressed under
Commonwealth v. DeJohn,
Finally, appellant sought to suppress evidence obtained as a result of the arrest warrant because the affidavit contained a misstatement. In order to invalidate an arrest warrant, a misstatement of fact in the affidavit must be both material and deliberate.
Commonwealth v. Bradshaw,
Appellant next contends that the evidence was insufficient to support the forgery convictions because the convictions were based on expert testimony which was not “positive”. We disagree. In reviewing such a claim, we view the evidence in the light most favorable to the Commonwealth, accepting as true all the evidence and all reasonable inferences therefrom.
Commonwealth v. Williams,
*248 Finally, appellant argues that certain of the theft convictions are barred by the statute of limitations. 2 The applicable statute of limitations for theft is two years. 42 Pa.C.S.A. § 5552. The offenses involved herein occurred at various times between November 1974 and January 1979. The statute, however, contains the following exception:
(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 party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.
Citing
Commonwealth v. Eackles,
*249 The judgment of sentence is reversed and appellant is discharged as to Bills # 1857 through 1862, 1866 through 1875, 1879 through 1888, and 1907 through 1914; the judgment of sentence is affirmed as to all the other convictions.