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decided: December 30, 1981.


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.

Author: Nix

[ 497 Pa. Page 51]


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

[ 497 Pa. Page 52]

    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 [1977]. 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 establish that he was older then eighteen. This claim is conspicuously groundless.

This Court has made it clear that evidence otherwise sufficient will be found insufficient only if it is patently unreliable. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Commonwealth v. Whack, 482 Pa. 137, 393

[ 497 Pa. Page 53]

A.2d 417 (1978). The testimony of Yvonne Smith, the appellant's sister, was sufficiently reliable and consistent to allow the factfinder to determine that the defendant was older than 18 years of age. Her responses to questions concerning the appellant's age were thoughtful and based on her recollection of facts. The mere addition of the words "I guess" by the witness to her last answer, after stating once again that the appellant would be 19 in 1977, does not render her testimony fatally unreliable under the holding stated in Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). Since her use of the expression "I guess" did not require the factfinder to conjecture to what the appellant's age was and since it was for the factfinder to appraise the extent of this qualification, her testimony was sufficient to support the factfinder's verdict with reason and not surmise. Thus, it is readily apparent that the evidence produced at trial was sufficient to sustain appellant's conviction.

[ 497 Pa. Page 54]

The appellant's second argument is as equally unfounded as his first. It is well settled that legislative enactments are clothed with a presumption of constitutional validity. National Wood Preserves, Inc. v. Commonwealth, Department of Environmental Resources, 489 Pa. 221, 414 A.2d 37 (1980). In requesting this Court to find that 18 Pa.C.S.A. § 3102, a duly enacted statute, is unconstitutional in that it was afoul of Article I, § 9 of the Pennsylvania Constitution,*fn2 the appellant carries the heavy burden of demonstrating that the statute clearly, palpably, and plainly violates the Constitution. Wajert v. State Ethics Commission, 491 Pa. 255, 262 n. 6, 420 A.2d 439, 442 n. 6 (1980); In re Williams L., 477 Pa. 322, 382 A.2d 1228 (1978); Daly v. Page 54} Hemphill, 411 Pa. 263, 191 A.2d 835 (1963). Because the appellant has failed to meet the burden of proving that § 3102 of the Crimes Code clearly contravenes the right to due process of law, there is no basis for a finding of constitutional invalidity.

The touchstone of due process is protection of the individual against arbitrary action of the government. Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). The operation of § 3102 to bar the defense of age in the case of statutory rape cannot be said to be an arbitrary law. In an exercise of its police powers, the legislature rationally may require that one eighteen years of age or older who engages in sexual intercourse with a child below fourteen years of age does so at his own peril. Such activity may be punished criminally if the child is indeed under fourteen years. In that event, a defendant may be denied the defense as to mistake or misrepresentation as to the child's age.

The primary consideration in prohibiting unlawful, consensual intercourse with an underage female has been traditionally attributed to the legislative desire to protect those who are too unsophisticated to protect themselves. Commonwealth v. Walker, 468 Pa. 323, 335, 362 A.2d 227, 232 (1976). Although due process considerations impose some limitations on the absence of a knowledge requirement from the definition of a criminal offense, see, e.g., Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), due process does not require that the appellant be afforded the defense of mistake of the victim's age in a statutory rape prosecution.*fn3 Thus, the Pennsylvania legislature, in

[ 497 Pa. Page 55]

    line with a substantial majority of legislatures which have addressed this issue, has determined that it will not provide for a reasonable mistake of age as a defense.*fn4 As such, the appellant is not entitled to relief.*fn5

Judgment of Sentence Affirmed.

KAUFFMAN, Justice, dissenting.

I dissent from that part of the Court's opinion which upholds the constitutionality of Section 3102 of the Crimes Code.*fn1

[ 497 Pa. Page 56]

Appellant was precluded by Section 3102 from asserting as a defense to the charge of statutory rape undisputed evidence that the complainant deliberately misrepresented her age as sixteen and that appellant reasonably believed her misrepresentation.*fn2 Appellant was thus unfairly convicted of a serious felony on the basis of strict criminal liability without any showing of criminal intent, negligence or recklessness.

More than twenty years ago, this Court held that imprisonment on the basis of vicarious criminal liability without a showing of mens rea would deny due process of law under Article I, Section 9 of the Pennsylvania Constitution. Commonwealth v. Koczwara, 397 Pa. 575, 583-585, 155 A.2d 825, 829-830 (1959). See Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980) (inferring culpability requirement for homicide by vehicle conviction). Today, however, the majority upholds a felony conviction where there not only has been no showing of mens rea, but the accused has been precluded from proving his assertion that he was misled to form the reasonable belief that he was committing no crime.*fn3

Under the circumstances of this case, a felony conviction, carrying the possible penalty of a lengthy prison term,

[ 497 Pa. Page 57]

    without a finding of criminal intent is unduly harsh and offensive to the due process protections of both the Pennsylvania and United States Constitutions. I agree with the enlightened view expressed by the appellate courts of several states that a felony conviction in circumstances similar to that presented here should not be obtained without some showing of criminal intent.*fn4 As the California Supreme Court has cogently stated:

[I]f the [accused] participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken a risk. Instead he had subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been misled, we cannot realistically conclude that for such reason alone the intent with which he understood the act suddenly becomes more heinous.

People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, 676 (1964). See also State v. Guest, 583 P.2d 836 (Alaska 1978) (recognizing universal rule that conduct cannot be criminal unless the accused was conscious of some wrongdoing); Walker v. State, 356 So.2d 672 (Ala. 1977) (due process restrains legislature's power to create strict liability crimes).*fn5

Rather than summarily dismissing appellant's constitutional claim, as does the majority, I would hold unconstitutional that part of Section 3102 which denies an accused the opportunity to offer proof of reasonable belief as to age and remand this case to the trial court to permit appellant to

[ 497 Pa. Page 58]

    raise as a defense his reasonable belief that the complainant's misrepresentation as to her age was true.*fn6

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