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decided: March 16, 1979.


No. 2500 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Div., Philadelphia County, Imposed on Information No. 1068, January Session, 1977.


John W. Packel, Assistant Public Defender, Chief, Appeals Division, Leonard Sosnov, Assistant Defender, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 264 Pa. Super. Page 347]

This is an appeal from judgment of sentence for statutory rape.*fn1

The complainant testified that appellant had sexual intercourse with her on January 1, 1977, when she was 13 years

[ 264 Pa. Super. Page 348]

    old. N.T. 14. The Commonwealth called appellant's sister, Yvonne Smith, for the purpose of proving appellant's age. She testified that she had personal knowledge that appellant was over 18 on January 1, 1977. As a foundation for this testimony, she stated that she was 19 years older than appellant; that she was not present at his birth, but saw him three days later, on November 12 or 13, 1958, N.T. 10, 11; that he was born in Abington Hospital; and, finally, that her mother's name was Doris and her father's name, Emanuel, N.T. 13. On cross-examination, she conceded that her estimation of appellant's age was an "approximation", based on how long she thought he had been out of school. N.T. 12. Later in the trial, appellant's counsel recalled Mrs. Smith as a witness on appellant's behalf and she testified that "his birthday is November 9th of this year [1977]. He should be 19, I guess." N.T. 36.

Appellant argued in his post-verdict motions, and argues to us, (1) that the Commonwealth failed to prove beyond a reasonable doubt that he was over 18 on the date of the incident, and (2) that Section 3102 of the Crimes Code*fn2 is unconstitutional because it does not allow a defendant to prove that he labored under a reasonable mistake of fact as to the age of the victim.


It is axiomatic that "we must review the evidence in the light most favorable to the Commonwealth, the verdict winner, and accept every reasonable inference arising from that evidence in support of [its] position." Commonwealth v. Wright, 449 Pa. 358, 360, 296 A.2d 746, 747 (1972). It is also true, however, that "a verdict of guilt may not be based upon surmise or conjecture." Commonwealth v. Farquharson,

[ 264 Pa. Super. Page 349467]

Pa. 50, 60, 354 A.2d 545, 550 (1976). In applying these principles here, the critical question is whether the Commonwealth laid a sufficient foundation for the introduction of Yvonne Smith's testimony.

There is a paucity of Pennsylvania case law as to what foundation must be laid before a witness may testify that another person is over a particular age. The general rule seems to be that "the best proof of age is the testimony of living witnesses who were present at the birth and distinctly remember the event, or who, although not present, yet were so situated as to have positive knowledge and remembrance of the date thereof." Messina v. New York Life Ins. Co., 173 Miss. 378, 161 So. 462, 464 (1935); see also Howard v. Kentucky Alcoholic Beverage C. Board, 294 Ky. 429, 172 S.W.2d 46 (1943); Harris v. Switchmen's Union of North America, 237 S.W. 155 (Mo.App.1922); Southern Ins. Co. v. Tate, 22 Ala.App. 72, 112 So. 365 (1927). Some courts have cautioned that in admitting this type of evidence, "[m]uch must be left to the discretion of the trial judge . . . ." McLoughlin v. Sheehan, 250 Mass. 132, 145 N.E. 259, 261 (1924). In State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977), the Supreme Court of North Carolina was confronted with a problem similar to the one we face. It adopted "the rule that lay witnesses with an adequate opportunity to observe and who have in fact observed may state their opinion regarding the age of the defendant in a criminal case when the fact that he was at the time in question over a certain age is one of the essential elements to be proved by the state. It is important to note that the exact age of the defendant is not in issue, nor need the state prove it. It must prove only that he was at the time of the offense charged over 16." 292 N.C. at 287, 233 S.E.2d at 916.

We believe that the North Carolina Court's statement of the law is a good one, and that it has been met here. Although Yvonne Smith was not present at appellant's birth, her testimony, if accepted, showed that she was "so

[ 264 Pa. Super. Page 350]

    situated as to have positive knowledge and remembrance of the date thereof."*fn3 In Commonwealth v. Walker, 234 Pa. Super. 433, 340 A.2d 858 (1975), modified on other grounds, 468 Pa. 323, 362 A.2d 227 (1976), the Commonwealth successfully proved that the appellant was over 16 by showing that he had told the prosecutrix that he was 21. We said there: "Although such evidence was not conclusive, it along with other facts and circumstances tended to prove that appellant was over the age of 16." 234 Pa. Super. at 435, 340 A.2d at 859.*fn4 Yvonnne Smith did on cross-examination qualify her statement of appellant's age as an "approximation", but this feature of her testimony was for the judge, sitting without a jury, to appraise. He could choose to accept her direct testimony that she first saw appellant on November 12 or 13, 1958, especially given her testimony, when she was recalled as a witness by appellant, that appellant would be 19 on "November 9th of this year [1977]", in other words, that he had been born in 1958, and therefore was 18 on January 1, 1977, when the incident in question here occurred. Her addition of the words, "I guess", to her statement on recall did reduce her testimony to mere surmise;

[ 264 Pa. Super. Page 351]

    again, it was for the judge to appraise the extent of this qualification.*fn5


Appellant's argument that Section 3102 is unconstitutional breaks down into several parts. First, appellant argues that because Section 3102 prohibits him from claiming that he reasonably believed that the victim was 14 years or older, it results in the imposition of strict liability and should therefore be declared invalid under the Pennsylvania Constitution by virtue of Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), cert. denied 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (1960). Second, appellant argues that federal constitutional principles require that the section be declared invalid. Finally, appellant argues that the section is invalid because it conflicts with several other provisions of the Crimes Code.

We find no constitutional invalidity. Commonwealth v. Koczwara, supra, is distinguishable. There, the Supreme Court held that a barowner could not be imprisoned where he was vicariously liable for an employee's service of liquor to minors. 397 Pa. at 586, 155 A.2d at 838. Appellant is not being held liable for anyone else's actions. Appellant has cited no case that demonstrates a federal constitutional claim. The Court of Appeals for the First Circuit has stated:

The Supreme Court has never held that an honest mistake as to the age of the prosecutrix is a constitutional defense to statutory rape, and nothing in the Court's recent decisions clarifying the scope of procreative privacy, suggests that a state may no longer place the risk of a mistake as to the prosecutrix's age on the person engaging

[ 264 Pa. Super. Page 352]

    in sexual intercourse with a partner who may be young enough to fall within the protection of the statute. (citations omitted) Nelson v. Moriarty, 484 F.2d 1034, 1035-1036 (1st Cir.1973).

Nor is appellant's final argument persuasive. Appellant argues that Section 3102 is in conflict with Sections 302,*fn6 304,*fn7 and 305*fn8 of the Crimes Code. These provisions deal with general guidelines on culpability for the whole of the

[ 264 Pa. Super. Page 353]

Crimes Code, while we are confronted with the task of interpreting and applying a specific provision on sexual offenses. The Supreme Court has said: "It is a familiar rule that where there is a conflict between two provisions of a statute, one of which is specific and the other merely general, the specific provisions thereof will control unless it is clear that the legislature intended otherwise, or some other canon of statutory construction compels a contrary conclusion." Wait's Estate, 336 Pa. 151, 154, 7 A.2d 329, 330 (1939). Likewise, the Statutory Construction Act provides:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

1 Pa.C.S.A. ยง 1933 (Purdon's Supp.1978-79).*fn9

Section 3102, as amended in 1976, which was three years after the sections on which appellant relies were enacted, represents a clear legislative desire that with respect to certain sexual offenses, a defendant cannot prove his reasonable belief regarding the victim's age as a defense.

Judgment of sentence affirmed.

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