Appeal from order of Court of Common Pleas of Washington County, Nov. T., 1968, No. 170, in case of Commonwealth of Pennsylvania v. D. Dallas Potts, III.
Paul M. Petro, Assistant District Attorney, with him Jess D. Costa, District Attorney, for Commonwealth, appellant.
Paul P. Posa, with him Greenlee, Richman, Derrico and Posa, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Hoffman, J. Concurring and Dissenting Opinion by Cercone, J.
[ 220 Pa. Super. Page 153]
This is an appeal by the Commonwealth from the order of the lower court dismissing the prosecution against the appellee for fornication and bastardy solely because a negative blood test requested by the defendant had excluded the appellee as fathering the bastard child. The prosecution had requested a second blood test, but this request was refused by the court. The court held that even if a second blood test did not exclude the appellee, the court must, as a matter of law, have a reasonable doubt as to his guilt. Further, the lower court held that the prosecution had no standing to request a second blood test, and that the only party with such a right would be the defendant.
The Act of July 13, 1961, P. L. 587, § 1, 28 P.S. § 307.1 provides that "[i]n a civil action in which paternity
[ 220 Pa. Super. Page 154]
parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action . . . shall order the mother, child and alleged father to submit to blood tests." The Act of July 13, 1961, P. L. 587, § 6, as amended, 28 P.S. § 307.6.
Section 2 of the Act provides that the "tests shall be made by experts . . . . The experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties. Any party or person at whose suggestion the tests have been ordered may demand that other experts qualified as examiners of blood types perform independent tests under order of court, the results of which may be offered in evidence. The number and qualifications of such experts shall be determined by the court."
Section 4 of the Act provides that if the conclusion of all the experts is uniform, "the question of paternity . . . shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence."
Section 6 of the Act makes the aforementioned provisions "apply to criminal cases subject to the following limitations and provisions: (a) an order for the tests shall be made only upon application of a party or on the court's initiative . . . (c) the court may direct a verdict of acquittal upon the conclusions of all the experts under the provisions of section 4."
From the aforementioned passages it is clear that, as in the instant case, a criminal defendant may request and obtain a blood test, and if he were dissatisfied with the result, he could request an additional test or tests. The act, however, does not state that the Commonwealth in a criminal ...