Appeal, No. 27, Feb. T., 1954, from judgment of Court of Quarter Sessions of Luzerne County, Feb. T., 1954, No. 82, in case of Commonwealth of Pennsylvania v. Geno Cicerchia. Judgment affirmed.
Fredric R. Gallagher, Wilkes-Barre, for appellant.
Jonathan C. Valentine, First Assistant District Attorney, with him Louis G. Feldmann, District Attorney, and Joseph J. Gale, Assistant District Attorney, Wilkes-Barre, for appellee.
Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 177 Pa. Super. Page 171]
This is a prosecution for fornication and bastardy. The defendant, Geno Cicerchia, waived a jury trial and was tried and convicted before a judge of the Court of Quarter Sessions for Luzerne County. Motions in arrest of judgment and for a new trial were overruled by the court below and defendant was sentenced to pay the costs of prosecution, lying in expenses, and to make periodic payments for support of the child. From the judgment of sentence this appeal was taken.
The prosecutrix was a married woman. The trial judge properly considered her incompetent to prove non-access by the husband. Her testimony was limited to the circumstances and time of the alleged criminal connection and the birth of a child as the result thereof. Prosecutrix testified that she "went steady" with the defendant for about two years, ending in December of 1953. During that period prosecutrix had sexual relations with the defendant "Usually on weekends". She testified that she had sexual relations with Cicerchia on or about June 15, 1953, and that as a result of that coition a female child was born to her on March 7, 1954. On cross-examination prosecutrix was asked if she established the date of coition "by figuring
[ 177 Pa. Super. Page 172]
backwards from the birth of the child", to which question she replied, "No, by the end of my period in June, right after my period in June I was with him [defendant]."
To prove non-access by the husband of the prosecutrix, the Commonwealth showed that the husband was arrested on May 4, 1953, at which time he was committed to the Columbia County Jail where he remained until October 12, 1953, when he was taken to Eastern State Penitentiary to begin serving a sentence imposed on that date.
Defendant neither testified nor called any witnesses.
The Commonwealth concedes, as it must, that where, as here, the prosecutrix is a married woman, the burden was upon it to rebut the presumption of legitimacy by sufficient competent proof to sustain a finding, beyond a reasonable doubt, that the husband did not have access to her during the period within which the child must have been begotten. Commonwealth v. Barone, 164 Pa. Superior Ct. 73, 63 A.2d 132; Commonwealth v. Levandowski, 134 Pa. Superior Ct. 477, 4 A.2d 201; Commonwealth v. Atherton, 129 Pa. Superior Ct. 64, 194 A. 779; Commonwealth v. Di Matteo, 124 Pa. Superior Ct. 277, 188 A. 425. The question, then, is whether in the instant case the Commonwealth met this burden by proof ...