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decided: July 12, 1978.


No. 2366 October Term, 1976, Appeal from the Order of Adjudication of Delinquency of July 28, 1976 of the Court of Common Pleas of Philadelphia County, Family Division, Juvenile Branch, at No. 5593-76-4.


Joseph M. Casey, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion in which Van der Voort, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 255 Pa. Super. Page 541]

This is an appeal from an adjudication of delinquency based upon charges of aggravated assault*fn1 and possession of an instrument of crime.*fn2 Appellant, who was nine years old at the time of the incident, contends that the lower court erred in refusing to take cognizance of the presumption of incapacity which arises when a child between the ages of seven and fourteen is alleged to have committed a criminal act. We agree and therefore reverse.

The testimony below, to which both parties stipulated, was that as the complainant, Delores Davis, was walking by, appellant kicked dirt at her. A fight ensued and appellant, saying she was going to get her mother, ran into her house and procured a knife. The fray resumed and appellant stabbed the complainant in the arm and back.

The lower court denied defense counsel's motion for a directed verdict and adjudicated appellant a delinquent. Appellant's sole contention on appeal is that a directed verdict should have been granted since the Commonwealth failed to present any evidence to refute the presumption that appellant lacked the requisite criminal capacity. The lower court apparently based its ruling on the belief that the Juvenile Act, Act of December 6, 1972, P.L. 1464, No. 333, § 1 et seq., 11 P.S. § 50-101 et seq. (Supp.1976-77), had preempted the common law presumption of incapacity which has long existed in Pennsylvania. See, e. g., Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959); Nagle v. Allegheny Valley Railroad Co., 88 Pa. 35 (1879). The judge's opinion attempts to bolster this conclusion by emphasizing that the Juvenile Court acts as parens patriae for the child, rather than as a retributive agent of the state.

[ 255 Pa. Super. Page 542]

This rationale was first rejected by the Supreme Court of the United States in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). It is now clear that the juvenile, during the adjudicatory stages of a delinquency proceeding, is entitled to many of the due process safeguards accorded adult criminal defendants.*fn3 Id. Chief among these is the requirement that the Commonwealth prove every element of the crime beyond a reasonable doubt. In re Terry, 438 Pa. 339, 347, 265 A.2d 350, 354 n. 14 (1970), quoting In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975).

The common law presumption of incapacity, in the case of a child between the ages of seven and fourteen, is still very much alive in this jurisdiction. Nothing in the Juvenile Act indicates a contrary legislative intent.*fn4 In the instant case the Commonwealth made no attempt to rebut the presumption by introducing evidence of criminal capacity. In fact, the only evidence available on this issue was a neuro-psychological report in the file indicating that appellant suffered from "borderline retardation." Counsel for the prosecution made only a cursory argument on the issue of capacity, alluding to the fact that appellant said she was going into the house to get her mother, but instead got a knife, as an indication of an awareness of guilt. This implication, which was seized upon by the trial judge, is far from sufficient to rebut the presumption and satisfy the prosecution's burden of proving all elements of the crimes charged beyond a reasonable doubt. The motion for a directed verdict in favor of appellant was, therefore, improperly denied.


[ 255 Pa. Super. Page ...

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