Appeal from the Order entering Judgment of Sentence August 29, 1988 in the Court of Common Pleas of Lehigh County, Criminal Division, at No. 1697/1985.
Richard J. Makoul, Allentown, for appellant.
Glennis L. Clark, Assistant District Attorney, Allentown, for Com., appellee.
Del Sole, Melinson and Hoffman, JJ.
[ 385 Pa. Super. Page 581]
This is an appeal of a judgment of sentence following a trial by jury where the Appellant was found guilty of one count of simple assault, not guilty on another count of simple assault, and not guilty of the summary offense of obstructing and loitering.
This conviction stemmed from an incident which occurred at 8:15 p.m. on September 29, 1985, involving Appellant and a police officer. The police officer attempted to issue a loitering citation to Appellant who was kneeling on the curb next to a car parked on a heavily traveled portion of a public thoroughfare. Appellant was arrested that evening. The next day, September 30, was Appellant's eighteenth birthday. Prior to trial, Appellant filed a motion to quash and transfer the case to juvenile court. This motion was denied and Appellant was tried as an adult.
[ 385 Pa. Super. Page 582]
In this appeal, Appellant raises four claims of trial court error: (1) the trial court erred in denying his motion to transfer his case to Juvenile Court; (2) the trial court erred in permitting the introduction of his statement concerning hiring an attorney, when that statement was made while Appellant was in custody but had not been advised of his constitutional rights; (3) the trial court erred in prohibiting defense counsel from eliciting evidence from the prosecuting police officer that the arrest of Appellant was illegal; (4) the trial court erred in prohibiting introduction of photographs of the crime scene.
Prior to trial, Appellant filed a motion to transfer his case to Juvenile Court pursuant to 42 Pa.C.S.A. § 6322(a) which states, "if it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter [the Juvenile Act], shall immediately become applicable." As defined by statute, a child is an individual who is under eighteen (18) years of age. 42 Pa.C.S.A. § 6302, Definitions. Thus if Appellant were a child at the time the crime was committed, then a transfer to Juvenile Court would have been required.
According to common and accepted usage, an individual is seventeen years of age until his or her eighteenth birthday, the anniversary of the date of birth. Therefore, it is generally and commonly understood that prior to that birthday a person is "under eighteen years of age."
However, the common law of this state does not follow this prevailing usage, and instead, for reasons founded on arcane principles of early common law, a person is deemed to attain a given age on the day before his or her birthday. Commonwealth v. Howe, 35 Pa. Super. 554 (1908); Gerson v. Daly, 337 Pa. 346, 11 A.2d 148 (1940);
Thus, because we are constrained by precedent from our court and from the Pennsylvania Supreme Court, we must affirm the trial court's holding that Appellant was not a "child" on the day before his eighteenth ...