by David M. Reutter

The Supreme Court of Pennsylvania held that theft by deception is not a continuing offense for purposes of the statute of limitations, while receiving stolen property (“RSP”) continues only so long as the defendant retains the stolen property. Construing for the first time the “continuing course of conduct” language of 42 Pa.C.S. § 5552(d), the Court determined that the period for theft by deception runs from the day after the last act creating or reinforcing the false impression, not from the victim’s discovery.

Background

Cynthia Carolyn Black lived with her grandmother, Glenora Delahay, whose monthly Social Security Administration (“SSA”) benefits were deposited into a bank account shared by Delahay, Black, and Black’s mother, Glenora Waltzinger. Delahay died sometime between 2001 and December 2005. Black failed to report the death to either the SSA or the authorities and, afraid of losing the benefits, moved the body to a basement freezer. The payments continued.

Black moved to York County in 2007, taking the freezer with her. In the fall of 2010, the SSA wrote to Delahay seeking an in-person benefits review and stopped the payments that November after receiving no response. The bank foreclosed on the home in May 2018, and Black left the freezer behind. Visitors opened it on February 7, 2019, and found human remains, identified as Delahay’s in May 2020.

The Commonwealth charged Black on May 26, 2020, with theft by unlawful taking, RSP, and abuse of a corpse. Black moved to quash the theft and RSP counts as time-barred. The trial court allowed the Commonwealth to amend the information to add theft by deception, dismissed the unlawful taking charge as untimely, denied the motion otherwise, and convicted Black of all three offenses at a stipulated bench trial.

The Superior Court affirmed in an unpublished decision. Relying on Commonwealth v. Fisher, 682 A.2d 811 (Pa. Super. 1996), and Commonwealth v. Succi, 173 A.3d 269 (Pa. Super. 2017), it held that accrual for theft by deception awaits the victim’s discovery, which occurred when the remains were identified. It further held RSP an offense that “continues as long as the perpetrator retains possession of the stolen property” and that Black had never relinquished the funds. The Supreme Court granted allowance of appeal on both accrual questions.

Analysis

The Court began its analysis by reviewing the function of criminal statutes of limitations, which limit exposure to prosecution to a fixed period and shield the accused from defending long-past conduct. Commonwealth v. Cardonick, 292 A.2d 402 (Pa. 1972) (citing Toussie v. United States, 397 U.S. 112 (1970)). They are construed “liberally … in favor of the defendant and against the Commonwealth.” Id.

Prosecution for theft by deception and RSP must begin within five years. 42 Pa.C.S. § 5552(b)(1). Where fraud is a material element, charges may be filed within one year after an aggrieved party discovers the offense, but that exception cannot extend the ordinary period by more than three years. 42 Pa.C.S. § 5552(c)(1). It runs from the day after the offense is committed, and an offense is committed “either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the complicity of the defendant therein is terminated.” 42 Pa.C.S. § 5552(d). The Supreme Court had never construed that language. Ambiguity in a penal statute is strictly construed in the defendant’s favor. Commonwealth v. Rosario, 294 A.3d 338 (Pa. 2023).

Theft by Deception

Theft by deception requires proof that a person intentionally obtained or withheld property of another by deception, by intentionally creating or reinforcing a false impression. 18 Pa.C.S. § 3922(a)(1). The Court disagreed with the premise of the courts below that the offense stays incomplete until the victim learns of the deception. The Commonwealth must prove reliance, but the statute does not make the victim’s awareness an element. Consequently, the Court explained that accrual turned on whether a legislative purpose to prohibit a continuing course of conduct plainly appears in § 3922.

The Court observed that when the General Assembly intends an offense to be continuing, it says so expressly. The conspiracy statute declares that “conspiracy is a continuing course of conduct” for purposes of § 5552(d). 18 Pa.C.S. § 903(g)(1); see Commonwealth v. Volk, 444 A.2d 1182 (Pa. Super. 1982). The Medicaid Fraud Abuse and Control Act deems a violation “to continue so long as the course of conduct or the defendant’s complicity therein continues.” 62 P.S. § 1407(b)(1). Under the Corrupt Organizations Act, a violation continues so long as the violator “continues to receive any benefit from the violation.” 18 Pa.C.S. § 911(c). The Court stated that “[t]here can be no clearer expression of legislative intent to prohibit a continuing offense.”

Section 3922 contains no comparable language and is not a possessory offense. The Court determined from dictionary definitions that obtaining property connotes procurement, not continuing conduct, so the crime is complete once the defendant acquires property through deception. “Withholds” was ambiguous, describing either a refusal to return property on demand or continued possession, and had to be construed in the defendant’s favor. Rosario; Cardonick. Because deceiving demands an affirmative act, Black’s deception ended with the final SSA deposit. She never answered the agency’s letters and did nothing further to sustain the false impression. The Court concluded that accrual began the day after that November 2010 payment, and thus, the May 2020 charge was untimely. Even the fraud exception would have carried the period only to November 2018, the Court noted.

The Court explained that the Superior Court decisions describing theft by deception as continuing did not analyze § 5552(d) and were factually distinguishable. In Fisher and Commonwealth v. McGogney, 293 A.3d 610 (Pa. Super. 2023) (unpub. memo.), the defendants continued affirmatively deceiving their victims within the limitations period. In Commonwealth v. McSloy, 751 A.2d 666 (Pa. Super. 2000), the limitations period began when the defendant first received the insurance proceeds. In contrast, Succi expressly concluded that no legislative purpose to prohibit a continuing course of conduct plainly appeared in the theft-by-deception statute. The Commonwealth’s continuing-cover-up theory was based on Commonwealth v. Johnson, 615 A.2d 1322 (Pa. Super. 1992), a conspiracy prosecution the Court determined had no relevance in the present case.

Receiving Stolen Property

RSP punishes one who “intentionally receives, retains, or disposes of movable property of another” knowing or believing it stolen, absent an intent to restore it to the owner. 18 Pa.C.S. § 3925(a). The Court noted that receipt and disposal each occur at a fixed point, so the question was whether the retention language plainly evinces a continuing-course-of-conduct purpose. The Superior Court had so held, relying on Commonwealth v. Farrar, 413 A.2d 1094 (Pa. Super. 1979), where the defendant still held stolen antiques, and Commonwealth v. Hawkins, 439 A.2d 748 (Pa. Super. 1982), which reversed an untimely RSP conviction where the defendant retained nothing after cashing stolen checks. Neither had considered § 5552(d), according to the Court.

The Court concluded that RSP is a continuing offense. Retaining is synonymous with possessing, and because § 3925(a) is phrased in the disjunctive, the Commonwealth may charge the offense so long as the defendant intentionally retains property she knows was stolen or believes probably was stolen, absent an intent to restore it to the owner, the Court explained.

Even so, the Court instructed that the statute supplies three starting points, i.e., receipt, retention, and disposal, and that retention ends upon disposal. The Superior Court had focused on Black’s failure to return the funds to the SSA, but the statute attaches no significance to the date a defendant restores property to its rightful owner, the Court stated. Retention also does not survive conversion. Treating Black as still retaining funds she applied to her mortgage would deprive the limitations period of meaning whenever stolen property is converted into another form, the Court reasoned. To the extent Black transferred the SSA funds from the joint account to a mortgage holder, she disposed of the funds at that time. The record did not establish when any such transfer occurred. With no evidence that Black retained the funds after the final deposit, the limitations period began in November 2010, so the May 2020 charge fell well outside the five-year period, the Court concluded.

Conclusion

Accordingly, the Court vacated Black’s convictions for theft by deception and RSP and remanded for further proceedings consistent with its opinion. See: Commonwealth v. Black, 358 A.3d 443 (Pa. 2026).  

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