No. 2850 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Trial Section, Criminal Division, No. WD 73328 1977- 4960 June.
Samuel J. Marks, Philadelphia, for appellant.
Laurie McKissock, Assistant District Attorney, Philadelphia, submitted a brief on behalf of Commonwealth.
Price, Wieand and Van der Voort, JJ.*fn* Wieand, J., files a dissenting statement.
[ 275 Pa. Super. Page 589]
On June 19, 1978, following a non-jury trial, appellant was convicted of neglecting to support a bastard.*fn1 Post-trial motions were denied, and this appeal followed. For the reasons stated herein, we affirm the order of the trial court.
As appellant's primary contention concerns the sufficiency of the evidence, we must take particular care in examining the trial testimony. Ms. Shirlene Bennett testified that she met appellant sometime in March of 1971. They quickly became good friends, and the two engaged in sexual relations for the first time at the end of that month. For the rest of 1971, the couple dated and had intercourse once or twice a week. At the end of April 1971, Ms. Bennett missed a menstrual period, but she did not seek medical aid until June or July when she visited a Temple University Clinic.*fn2 She was bleeding sporadically prior to the consultation, and was advised at that time that she was two to three months pregnant. (N.T. 12). Ms. Bennett admitted a single sexual contact with one Virgil Smith on May 15, 1971, subsequent to her missed menstrual period and prior to the confirmation of her pregnancy. She testified, however, that she had started taking birth control pills on May 3, 1971,*fn3 (N.T. 13-14) thus providing a basis for finding no one other than appellant could be the father of the child. She had further sexual contacts with appellant subsequent to May 15, 1971, and also subsequent to being taken off the birth control pills in June of 1971.
[ 275 Pa. Super. Page 590]
On February 1, 1972, Ms. Bennett gave birth to a baby girl, who she described as full-term, (N.T. 14). On the birth certificate, Ms. Bennett listed Mr. Smith as the father because, as she testified, "[appellant] was getting on my nerves . . . and lying, and I just didn't want to put his name down . . . If I had known you could leave it blank, I would have . . ." (N.T. 19).*fn4 Ms. Bennett further stated that while she informed appellant of the child's birth, she did not immediately ask him for economic assistance in raising Tamika. She did, however, subsequently ask appellant for money, and he generally complied by providing her with a small amount every week or two until 1974,*fn5 when his contributions, and her requests, temporarily stopped. In November of 1976, the witness again asked appellant for money, and he responded by giving her $20. Following this incident, the two stopped speaking to each other. Although payments ceased, Ms. Bennett insisted that she instituted the present suit on March 21, 1977, not to compel child support payments from appellant, but merely to allow her daughter the potential use of appellant's social security benefits.
Upon assuming the stand, appellant contended that he never had sexual relations with Ms. Bennett, nor did he in any way contribute to the support of Tamika or Ms. Bennett. He claimed that during 1971, he never dated Ms. Bennett and devoted himself exclusively to his future wife. The only times that he saw Ms. Bennett were during parties or when she picked up his brother while the two were dating. Appellant also noted that, prior to the birth of Tamika, he attended a party given by Ms. Bennett for the purpose of celebrating her having a child by Virgil Smith.
Prior to reaching the question of sufficiency, we must first dispose of appellant's allegation that the prosecution
[ 275 Pa. Super. Page 591]
should have been barred by the statute of limitation. 18 Pa.C.S. ...