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.
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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 . 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 ...