On appeal, appellant argues that the prosecution for rape was barred by the two-year statute of limitations for rape in effect when the rape occurred despite the enactment, after the rape was committed but before the two year statute of limitations expired, of a new five year statute of limitations within which the present action was commenced. Appellant contends that the panel decision in Commonwealth v.Baysore, 349 Pa. Super. 345, 503 A.2d 33 (1986), which held, under facts substantially similar to those in this case, that the five year statute of limitations did not apply, is controlling here. Argument before the court en banc was scheduled on this issue. For the reasons which follow we overrule Baysore and conclude that the five year statute of limitations applies to a crime committed less than two years before the enactment of the five year statute even though the prosecution was not commenced until after the former period of limitation had expired.

In a brief, unpublished memorandum opinion, the Superior Court reversed and ordered that Appellee be discharged. Although the five-year limitations period was in effect when this prosecution commenced, the Superior Court discharged Appellee because he was prosecuted more than two years after his last criminal act. The Court ruled that the disposition of this case was controlled by Commonwealth v. Baysore, 349 Pa. Super. 345, 503 A.2d 33 (1986), allocatur denied September 30, 1986, in which the Superior Court had held that, although 42 Pa.C.S.A. § 5552, as amended by Act 122, did not amount to passage of an ex post facto law, it was inapplicable to crimes committed before its effective date (but which were not already time-barred) because it does not explicitly state that it applies "retroactively" to such crimes. We granted the Commonwealth's petition for allowance of appeal in this case because it has become increasingly apparent to us that Baysore, supra, was decided incorrectly.

Initially we note there is no clear and manifest intent by the General Assembly that 42 Pa.C.S.A. § 5533(b) be applied retroactively. In Commonwealth v. Baysore, 349 Pa. Super. 345, 503 A.2d 33 (1986) this Court recently addressed the question of the retroactive application of legislation which lengthened the statute of limitations for theft. The Act in question merely stated it shall take effect in 60 days. We noted that the legislature clearly can and does manifest its intent when amendments are to be applied retroactively.

The issue was whether the extended statute of limitations would apply. An earlier Pennsylvania case, Commonwealth v. Baysore, 349 Pa. Super. 345, 503 A.2d 33 (1986), had held the prosecution was barred on the ground that the extended statute of limitations could not be given a "retroactive" application. In Harvey, the Pennsylvania court rejected that reasoning and overruled Baysore.

In Holland, supra at 121, the same amendment to the statute of limitations at issue in Whitesell was found to be retroactive only on a showing of specific and explicit legislative intent. In addition to the jurisdictions mentioned by the court (see ante at 593 notes 2 3), which do not give statutes retroactive effect in the absence of clearly stated legislative intent, see United States v. Richardson, 512 F.2d 105, 106 (3d Cir. 1975); Reino v. State, 352 So.2d 853, 859-860, 861 (Fla. 1977); Commonwealth v. Baysore, 349 Pa. Super. 345, 349 (1986); and People v. Holland, supra. See also Mullenax v. Langston, 286 Ark. 470, 471 (1985) (statute of limitations in effect at time offense committed applies).

See, e.g., United States v. Richardson, 512 F.2d 105 (3rd Cir. 1975); State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983); Martin v. Johnson, 708 P.2d 121 (Colo. 1985); Commissioner v. Baysore, 349 Pa. Super. 345, 503 A.2d 33 (1986); State v. Merolla, 100 Nev. 461, 686 P.2d 244 (1984). In the instant case, both the state and appellant agree that the legislature did not explicitly state that the amendment be given retroactive application.

Thus, the Commonwealth argues that, as of its effective date, section 5554(3) acted to toll the statute of limitations relating to any offense committed by appellee for which prosecution was not already time barred. In dismissing the charges of statutory rape, indecent assault, corruption of minors and endangering the welfare of minors, the trial court relied upon this court's reasoning in Commonwealth v. Baysore, 349 Pa. Super. 345, 503 A.2d 33 (1986). The court concluded that section 5554(3) is not retroactive in its application and that therefore prosecution of Appellee's alleged offenses is time barred regardless of whether the statute of limitations relating to his offenses was running as of the effective date of section 5554(3).

At some time after July, 1986, O'Donnell's actions were first discovered, and on December 30, 1986, a criminal complaint was filed against O'Donnell charging him with two counts of Theft by Failure to Make Required Disposition and two counts of conspiracy. After O'Donnell was bound over for court on all the charges following his preliminary hearing, O'Donnell filed a Petition for Writ of Habeas Corpus, alleging that the prosecution was barred by the applicable statute of limitations, 42 Pa.C.S.A. § 5552 The trial court granted this petition on the basis of Commonwealth v. Baysore, 349 Pa. Super. 345, 503 A.2d 33 (1986). The Commonwealth filed the instant appeal from that order alleging that 42 Pa.C.S.A. § 5552(b) as amended, Act of May 13, 1982, P.L. 417, No. 122 § 1 (hereafter, Act 122) is the relevant statute of limitations, and as applied to the case subjudice, does not bar the present prosecution.

Under the Pennsylvania Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1501 et seq., section 1926 provides "[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." In Commonwealth v. Baysore, 349 Pa. Super. 345, 349, 503 A.2d 33, 35 (1986), we found that only "[a]n explicit use of the word `retroactive' meets the requirements of a clear and manifest intent of the legislature that the act be applied retroactively." Since amended section 5533 does not contain an explicit provision that it be applied retroactively, we will not apply it so.