No. 1023 October Term, 1978, Appeal from a Denial of Motion for New Trial and/or in arrest of judgment after jury trial and from sentence of the Luzerne County Court, Criminal Division, filed to No. 2515 of 1976.
Francis P. Burns, Pittston, for appellant.
Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Van der Voort, Watkins and Montgomery, JJ.
[ 267 Pa. Super. Page 257]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Luzerne County, Criminal Division, by the defendant-appellant, George Rebovich, after conviction by a jury of neglect to support a bastard child as provided in 18 C.P.S.A. 4323(a). Post-trial motions were denied. This appeal followed.
At the trial the prosecutrix testified that she and the defendant had intercourse on two occasions in August of 1975. The defendant admitted having intercourse with her once but stated that he had used a contraceptive. He denied being the father of the child which was born nine months later. The defendant also introduced the testimony of various witnesses who knew the prosecutrix and testified that her reputation for truth and veracity was not great. The jury found the defendant guilty of the charge on December 3, 1976.
Appellant's first argument on appeal is that the statute making the neglect to support a bastard child a crime is unconstitutional because it violates Article 1, Section 28 of The Pennsylvania Constitution, the so-called Equal Rights Amendment. The Act is set forth at 18 C.P.S.A. 4323 and provides as follows:
"(a) * * * -- A person is guilty of a misdemeanor of the third degree if he, being a parent, willfully neglects or refuses to contribute reasonably to the support and maintenance of a child born out of lawful wedlock, whether within or without this Commonwealth. . . .
[ 267 Pa. Super. Page 258]
(d) . . . ." (Emphasis ...