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COMMONWEALTH v. BOGGIO (12/16/64)

decided: December 16, 1964.

COMMONWEALTH
v.
BOGGIO, APPELLANT



Appeal from judgment of Court of Quarter Sessions of the Peace of Greene County, June T., 1963, No. 33, in case of Commonwealth of Pennsylvania v. Anthony L. Boggio.

COUNSEL

Marjorie Hanson Matson, for appellant.

Glenn R. Toothman, Jr., for Commonwealth, appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Woodside, J.

Author: Woodside

[ 204 Pa. Super. Page 436]

This is an appeal from the judgment of sentence in a fornication and bastardy case. The defendant, Anthony L. Boggio, admitted the fornication and was found guilty by a jury of the bastardy charge. No post-conviction motions were made in the court below.

The child was born May 26, 1963. The evidence indicated that the defendant and the prosecutrix had intercourse a number of times beginning "the first part of 1962". The last menstrual period of the prosecutrix before the child's birth started September 13, 1962, so she set the intercourse of October 6, 1962, as the date of the fornication which resulted in conception. The defendant admitted that he had intercouse with her on October 6 and a number of times prior thereto, and that he wrote the prosecutrix a letter saying he would support the child. Here, he contends that the child born May 26, 1962, only 232 days after the October 6th intercourse, could not have been the result of that intercourse and, therefore, was not his child.

The obstetrician who delivered the child testified for the Commonwealth and another qualified obstetrician testified for the defendant. It is not necessary to relate, analyze and discuss their medical testimony, except to note that the child was believed by the delivering obstetrician to be "slightly premature."

We recognize that both the courts and the legislature must continue to re-examine the law governing the determination of paternity to see whether the applicable rules should be changed in the light of the rapidly developing scientific knowledge on this subject. See Commonwealth ex rel. Miller v. Dillworth, 204 Pa. Superior Ct. 420, 205 A.2d 111 (1964); Commonwealth ex rel. O'Brien v. O'Brien, 390 Pa. 551,

[ 204 Pa. Super. Page 437136]

A.2d 451 (1957); Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Superior Ct. 274, 184 A.2d 351 (1962). See also the dissent in Commonwealth v. Watts, 179 Pa. Superior Ct. 398, 402, 116 A.2d 844 (1955). The case before us, however, is not a case calling for a re-examination of the rules.

The circumstances of the child's birth and the time of gestation in this case are not such as would warrant our saying as a matter of law that the child was not conceived on October 6.

Furthermore, the defendant could be the father of this child through an intercourse prior to that date. Both the defendant and the prosecutrix testified that they had intercourse together a number of times in 1962, although neither was able to fix the exact dates of most of them. Neither party was sure whether they had intercourse together during the month of August. The prosecutrix testified that she had had intercourse only with the defendant. The indictment charged the defendant with sexual intercourse with the prosecutrix on October 6, 1962 "and divers other times". If the child was the result of one of the sexual relations prior to October 6, the bastardy conviction should not be set aside. Commonwealth v. Blank, 79 ...


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