No. 236 January Term, 1979, Appeal from the Order of the Superior Court No. 2500 October Term, Affirming the Judgment of Sentence at January Session, 1977, No. 1068, Philadelphia, Court of Common Pleas, Criminal Trial Division.
John W. Packel, Chief, Appeals Div., Leonard N. Sosnov, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Steven Cooperstein, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Kauffman, J., filed a dissenting opinion in which Larsen and Flaherty, JJ., joined.
This is an appeal, by allowance, from the Superior Court which unanimously affirmed the appellant's conviction for statutory rape.*fn1
The pertinent facts are as follows. Harriet Saunders, the complainant, testified at trial that she was born on July 23, 1963, making her 13 years old at the time this incident took place on January 1, 1977. The complainant further testified that she consented to have sexual intercourse with the appellant at his home some time during the evening hours and that after leaving the appellant's home, she went to her girlfriend's house, and from there to Thomas Jefferson University Hospital. 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. As a foundation for this testimony, she stated that she was 19 years older than the appellant; that she was not present at his birth, but saw him three days later on November 12 or 13, 1958; that he was born in Abington Hospital; and finally, that his mother's name was Doris and his father's name, Emanuel. 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. 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."
The appellant was found guilty of statutory rape after a trial before the Honorable Charles A. Lord, sitting without a jury, on April 6, 1977, and was sentenced to two years probation on September 26, 1977. The appellant appealed to the Superior Court, which affirmed in an unanimous opinion authored by Judge Spaeth. Commonwealth v. Robinson, 264 Pa. Super.Ct. 345, 399 A.2d 1084 (1979).
In this appeal, the appellant asserts (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 Criminal Code is unconstitutional because it does not allow the appellant to prove that he labored under a reasonable mistake of fact as to the age of the victim. On this second contention, he further argues that he should receive a new trial because he was convicted on this felony on the basis of strict criminal liability without proof of mens rea or culpability in violation of his right to due process of law as guaranteed by Article 1, Section 9 of the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution.
As to the appellant's first claim, sufficiency of the evidence, the sole argument advanced by the appellant is that the testimony produced to show that appellant was over 18 years old at the time of the incident was so weak and inconclusive as to be insufficient as a matter of law to ...