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filed: September 5, 1980.


No. 515 October Term 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Sect. at No. 0395 May Term 1977.


William Lee Akers, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Van der Voort, JJ. Brosky, J., files a dissenting opinion.

Author: Spaeth

[ 282 Pa. Super. Page 392]

Appellant was convicted of neglecting to support his minor child in violation of section 4323 of the Crimes Code and ordered to pay $22.50 per week for support. He argues that the action was barred by the statute of limitations.*fn1

Section 4323 provides:

(a) Offense defined. - 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.

(b) Limitation of action. - All prosecutions under this section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.

Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 4323.

The criminal complaint was filed on May 19, 1977, and alleged that appellant's child, Karanja, had been born on May 31, 1972, and that appellant had not paid support since April 1973. Appellant denied paternity, and also moved to quash the complaint on the ground that the action was barred by the statute of limitations. On July 7, 1977, the complaint was amended to allege that appellant's last contribution had been made not in April 1973 but in the summer of 1975.

[ 282 Pa. Super. Page 393]

Conduct that "negatives a defense under the statute of limitations" is an element of the offense, 18 Pa.C.S. § 103, and the Commonwealth bears the burden of proving that the prosecution is within the statute. Commonwealth v. Kuhn, 200 Pa. Super. 649, 190 A.2d 337 (1963); Commonwealth v. Bates, 1 Pa. Super. 223 (1896). Therefore, here the Commonwealth bore the burden of proving that appellant had made some contribution to Karanja's support within two years of the complaint.

The only evidence of such contribution was the following testimony by Karanja's mother:

Q. When was the last time that he did anything for Karanja?

A. The last time was the meeting at Woolworth's when he bought lunch for us when we saw him.

Q. And when was that?

A. That was around the summer of 1975.

Q. Was that-how did that meeting come about?

A. Well, I was at the bank, in the drive-in section, with Karanja in the car, and he walked up to us and said hi, how about some coffee. And so I said okay. And we selected Woolworth's because it was close by.

N.T. at 28.

The Commonwealth is of course entitled to have this evidence examined in the light most favorable to it. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978). However, no matter how favorable the light, the evidence remains quite unimpressive. The mother offered almost no detail. What does "lunch for us" mean? Did appellant buy food for both the mother and Karanja? Did he buy lunch for each of them, or did he only buy lunch for the mother, which she then shared with Karanja? Also, the mother offered almost no explanation. How did it happen that someone who asked, "How about some coffee?" then "bought lunch?" Finally, it is impossible to avoid regarding the mother's testimony with suspicion. It was only after her first complaint was attacked as barred by the statute of

[ 282 Pa. Super. Page 394]

    limitations that the mother conceived of the 1975 "lunch" as constituting a contribution to support, which at least suggests that before that time she had not considered it a contribution to support. However, for purposes of disposition, we shall put aside all reservations regarding the quality or weight of the evidence, and shall assume that it was sufficient to support a finding that appellant bought Karanja some food.*fn2 On this assumption, the question becomes whether such a single contribution may constitute a contribution to support within the meaning of section 4323(b).

Appellant has cited cases from other jurisdictions holding that for a contribution to support to toll the statute of limitations, there must be evidence that the alleged father engaged in a course of conduct or a pattern of payments "furnished under circumstances as warrant a clear inference that the putative father recognizes the child as his own and indicates his willingness to assume his statutory duty of support." Wong v. Beckford, 28 A.D.2d 137, 138, 283 N.Y.S.2d 491, 492 (1967). See Lindsay v. District of Columbia ex rel. Lindsay, 298 A.2d 211 (D.C.App. 1972); Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964); Mendes v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766 (1958). Relying on these cases, ...

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