# Commonwealth v. Fanelli > Supreme Court of Pennsylvania · September 15, 1988 · 377 Pa. Super. 555 URL: https://www.frixlaw.com/law-library/cases/9697790 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Lawrence FANELLI, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** September 15, 1988 - **Citations:** 377 Pa. Super. 555; 547 A.2d 1201; 1988 Pa. Super. LEXIS 2576 - **Precedential status:** Published - **Opinion:** Concurrence by Beck - **Judges:** Cirillo, Cavanaugh, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia, Popovich - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Commonwealth v. Hutchinson, 521 Pa. 482 (1989). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9697790 ## Opinion text *566 BECK, Judge, concurring: I concur in the result reached by the majority. This case presents two significant issues for review. First, did the Commonwealth establish that appellant’s offenses were committed within the statute of limitations period? Second, did the Commonwealth deny the appellant due process of law by failing to fix the date of the offense with reasonable certainty (the Devlin issue)? Commonwealth v. Devlin, 460 Pa. 508 , 333 A.2d 888 (1975). The case sub judice raises these two questions as distinct issues. The majority’s discussion merges the two independent issues and errs in not considering them separately. In its discussion, the majority asserts that the Commonwealth must prove with “reasonable certainty” that appellant’s prosecution was not barred by the statute of limitations. At 565. The majority takes the reasonable certainty standard applicable to the Devlin issue and applies it in the statute of limitations context. The question must then be addressed as to what the majority means by “reasonable certainty” in the context of the statute of limitations. From the majority’s opinion, the meaning of “reasonable certainty” is unclear. Must the Commonwealth prove that the prosecution was initiated within the statutory period by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt? A careful examination of the Pennsylvania Crimes Code indicates that the Commonwealth must prove beyond a reasonable doubt that a prosecution is not time barred. See Commonwealth v. Thek, 546 A.2d 83, 90 (1988); Commonwealth ex. rel. Atkins v. Singleton, 282 Pa.Super. 390, 394, n. 2 , 422 A.2d 1347 , 1349 n. 2 (1980). The Commonwealth’s burden of proof must be determined with reference to section 103 of the Crimes Code. Section 103 contains the following definition. “Element of an offense.” Such conduct or such attendant circumstances or such a result of conduct as: (1) is included in the description of the forbidden conduct in the definition of the offense; *567 (2) establishes the required kind of culpability; (3) negatives an excuse or justification for such conduct; (4) negatives a defense under the statute of limitations; or (5) establishes jurisdiction or venue. 18 Pa.Cons.Stat.Ann. § 103 (Purdon 1983) (emphasis added). Under section 103, when the defendant interposes the statute of limitations as a defense, the Commonwealth is obliged to prove the “attendant circumstances” that “negative” the statute of limitations defense, i.e., the Commonwealth must establish as an element of the offense that the crime was committed within the statute of limitations period. The burden imposed upon the Commonwealth is proof beyond a reasonable doubt. The federal constitution mandates that each and every element of the crime must be proved by the prosecution beyond a reasonable doubt. See Martin v. Ohio, 480 U.S. 228 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987); Hankerson v. North Carolina, 432 U.S. 233 , 97 S.Ct. 2339 , 53 L.Ed.2d 306 (1979); In Re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). By choosing to designate the statute of limitations as an element of the offense, the Pennsylvania Legislature adopted the position advocated by the Model Penal Code. The Commentary to the Model Penal Code provides: Much as there is to say for a distinction between facts that establish the criminality of the defendant’s conduct and those that merely satisfy procedural requirements, with a heavier burden for the former than the latter, there is grave danger of confusion in presenting to a jury different standards for appraising different features of the prosecution’s case. Model Penal Code and Commentaries § 1.12 commentary at 189 (Official Draft and Revised Comments 1985). I appreciate the concerns which motivated the framers of the Model Penal Code. However, I am not persuaded that a jury would be incapable of following an instruction that: 1) the Commonwealth must prove the defendant guilty beyond a *568 reasonable doubt, and 2) the Commonwealth need only prove that it is more likely than not that the offense was committed within the statute of limitations period. Unless the Pennsylvania legislature narrows the definition of “element of the offense” to exclude the statute of limitations, the burden on the prosecutor remains beyond a reasonable doubt. After reviewing the record, I conclude that the Commonwealth proved beyond a reasonable doubt that appellant’s offenses were committed within two years of the date when criminal charges were initiated. The majority relies heavily on the fact that the child victim testified that her sister was one year old at the time of the offense and three years old at the time of trial. Standing alone, this evidence would not be sufficient to prove beyond a reasonable doubt that the prosecution was initiated within the statute of limitations. As Judge Cavanaugh demonstrates in his dissenting opinion, the child’s testimony was too vague and ambiguous to prove the necessary facts beyond a reasonable doubt. See op. at 575-579 (Cavanaugh, J., dissenting). However, I agree with the majority that the reviewing court must review all of the evidence adduced at trial, including, in the case sub judice, evidence of the police officer which was subject to an objection that was erroneously sustained by the trial court. As the majority correctly notes, the trial court improperly excluded as hearsay the testimony of the police officer that the victim stated that she was sexually assaulted by the appellant right before she went to live with her foster mother in September, 1983. See Commonwealth v. Rounds, 356 Pa.Super. 317 , 514 A.2d 630 (1986), rev’d on other grounds, 518 Pa. 204 , 542 A.2d 997 (1988). Considering the police officer’s testimony as well as the victim’s testimony, I conclude, the Commonwealth satisfied its burden beyond a reasonable doubt. As for the Devlin issue, the testimony of the police officer, clearly demonstrates that the Commonwealth has fixed the date of the offense with reasonable certainty. *569 I concur in the majority’s determination that the judgment of sentence must be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9697790. Public record. Not legal advice.