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March 14, 1980


No. 2209 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, imposed on Bill of Indictment Nos. 419-420 February Session, 1978.

Before Price, Van Der Voort and Wieand,*fn* JJ.

Per Curiam:

The judgment of sentence is affirmed on the opinion of Judge Murray C. Goldman for the court below.





No. 415-419


DATE: DEC 15, 1978

On May 3 and 4, 1978, Donald Teagle was tried before a jury and found guilty of corruption of minors and statutory rape. The jury found defendant not guilty of indecent assault, unlawful restraint, involuntary deviate sexual intercourse, rape, and possession of instruments of crime. Defendant filed a post-trial motion in arrest of judgment claiming that the Commonwealth failed to prove the charges against him. The Court rejects this contention and therefore denies defendant's post-verdict motion.

One of the elements of the relevant offenses is that the accused be 18 years of age or older. Defendant claims that because the Commonwealth introduced no direct evidence of his age, the prosecution failed to meet its burden of proving every element of a crime beyond a reasonable doubt. Defendant first raised this issue by a demurrer. The demurrer was overruled on the ground that the jury could determine the age of the defendant, who had been identified, by observing his physical appearance. The defense then rested without putting on evidence. The district attorney called defendant's physical appearance to the attention of the jury in his closing remarks and in its charge the Court instructed the jury to consider defendant's physical appearance in determine his age since age was an essential element of the crimes charged.

Defendant claims that the jury cannot infer his age from his physical appearance alone. He also asserts that because the first mention of determining age from his appearance was made in the Commonwealth's closing argument, the Commonwealth's case was legally insufficient. The Court rejects both assertions.

It is generally accepted that the trier of fact may determine a person's age by observation. 1 Wigmore, Evidence (3rd Ed. 1940) § 222; 32 C.J.S. § 609. As is frequently cited,

When the age of a person becomes an issue and the person is present before the triers of fact, it can hardly be doubted that they are at liberty to use their senses and to draw an inference as to the person's age from his physical appearance.

U.S. ex rel. Fong On v. Day, 54 F.2d 990, 991 (2d Cir. 1932). It is settled law in Pennsylvania that it is proper, as a method of establishing a defendant's age, for the Commonwealth to call to the attention of the Court and jury the personal appearance of a defendant and to allow the jury to determine whether or not the defendant meets the statutory age requirement. Commonwealth v. San Juan, 129 Pa. Super. 179, 195 A. 433 (1937); Commonwealth v. Livendoski, 38 D&C2d 616 (1966).

Defendant's reliance on Commonwealth v. Walker, 33 Pa. Super. 167 (1907) is misplaced. In that case, the Superior Court held that it was improper for the trial court to submit the age of defendant to the jury solely on his appearance. In Walker, however, the Commonwealth did not identify defendant as the person indicted and did not offer defendant's appearance in evidence. The only reference to the jury's determining defendant's age was made by the Court in its charge. The Court's holding was based on its conclusion that, "... it cannot be said, with any degree of certainty, that the jury saw the right man or boy, when they were told by the court to judge his appearance." 33 Pa. Super. at 170. Here, although the Commonwealth introduced no testimonial evidence of defendant's age, the identification by the complainant served to place his physical appearance in issue before the closing arguments.

Finally, in the present case, it was apparent to the Court that defendant was over 18 years of age. As with any other issue of fact, if there had not been sufficient evidence from which the jury could reasonably infer that defendant was over 18, that is, if the defendant did not plainly appear to be over 18, the Court would have kept the case from going to the jury at the demurrer stage. It may also be noted that defense counsel himself referred to defendant as a grown man in closing argument.

*fn* Judge Donald E. Wieand participated in the consideration of this appeal by special designation.

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