*2 SPAETH, VOORT, and VAN der JJ. Before BROSKY SPAETH, Judge: neglecting convicted of his mi
Appellant was in violation of section 4323 of the Crimes Code and nor child per argues week for He pay ordered $22.50 the statute of limitations.1 the action was barred provides: Section 4323
(a) of a misde- person guilty Offense defined.-A he, being parent, willfully third if degree meanor of the neglects reasonably or refuses to contribute to the wedlock, born out of lawful and maintenance of a child whether within or without this Commonwealth.
(b) prosecutions Limitation of action.-All under this *3 within two of the birth of brought years section must be child, have except reputed where the father shall or shall voluntarily contributed to the in acknowledged writing paternity, have in his which case at time within two prosecution may brought any be or years any acknowledgment by such contribution reputed father. 1972, 1482, 334, 1, 6,
Act P.L. No. of Dec. Pa.C.S. § 4323. § 19, 1977, on complaint May
The criminal was filed child, Karanja, had been born on alleged appellant’s that 31, 1972, since May paid support and that had not moved to April Appellant paternity, 1973. denied and also that the action was quash complaint ground on the 7, 1977, limitations. July barred the statute of On appellant’s that last contri- complaint allege was amended in 1973 but in the summer April bution had been made not of 1975. considering Appellant argues also the lower court erred guilt, concerning probability of his and in evidence a statistical ordering pay per $22.50 him to week for Given our decision issue, argu- on of limitations we shall not reach these the statute ments. “negatives
Conduct that
a defense under the statute of
offense,
limitations” is an element of the
18 Pa.C.S. §
and the
bears the burden of
that thе
proving
Commonwealth
Kuhn,
prosecution is within the statute. Commonwealth v.
(1963);
testimony by Karanja’s mother:
Q. When was the last time that he did anything for
Karanja? A. The meeting last time was the at Woolworth’s when bought
he lunch for us when we saw him.
Q. And when was that?
A. That was around the summer of 1975.
Q. meeting Was that-how did that come about? Well, bank, A. I section, was at the in the drive-in
Karanja car, in the he up walked to us and said hi, how about some coffee. And so I said okay. And we selected Woolworth’s becausе it was by. close N.T. at 28.
The Commonwealth is of course entitled to have this
evidence examined in the
most
light
favorable to it. Com-
Holmes,
monwealth v.
482 Pa.
This cannot interpretation of statutes involved upon by appellant 4323(b). 4323(b), opposed from section Section that differ provides that “a jurisdictions, statutes in other to some within two brought any at time may be prosecution . . . contribu “any The reference such contribution.” any of a “pattern no sense if evidence tion” would make Moreover, interpreting cases required. contributions” were forcefully extensively so do not discuss the evidence 2. We dispositive dissenting opinion, issue is not discussed in the prove paternity it sufficient to but whether whether the evidence was prove beyond reasonable doubt that the statute of was sufficient limitations was tolled.
395
predecessor
its
have found
4323(b)
statutory
section
In
single
a
contribution sufficient.
Common-
evidence of
(1948),
Teeter,
However, reject appellant’s argument while we concern- we ing necessity pattern payments, the of evidence of a he is correct in that where persuaded maintaining are that made, a or contribution has been the single payment in evidence must show that it was made circumstances from it, which it be inferred that in the may reasonably making recоgnizing father was the child as his own. 4323(b)provides exceptions Section but two to the limita- tion two from the period birth child. These alleged are either where the father has contrib- “voluntarily child,” uted to the where he support of or has “acknowl- Thus, edged writing in his paternity.” voluntary contribu- acknowledgment tion and are paternity assimilated to plain each other. The is that implication legislature regarded other, the one as essentially same as the provided proof thus that of either would have the same extending period effect of of limitations. It follows if the evidence of the circumstances a surrounding voluntary finding contribution is insufficient acknowledgment contribution amounted to an of paternity, may it not be held that the contribution extended the period Thus, of limitations. v. Young, supra, Commonwealth surrounding evidence of the circumstances the voluntary twenty contribution of dollars was held to have extended the *6 support of limitations because it was sufficient to a period that the contribution amounted to an finding acknowledg- the paternity; only ment of reason mother asked for the it, paid and the reason the father was for the money, Teeter, of the child. Commonwealth v. support supra See (letters of father indicated that were for payments child in support). Similarly, Boyer, supra, Commonwealth evidence of the circumstances of the defendant’s visit to the hospital payment and his there to mother was sufficient the defendant was support finding acting to that in a compliance parental obligation with and therefore was acknowledging paternity. cаse,
In the it cannot be present maintained that the surrounding appellant’s evidence of the circumstances pur Karanja chase lunch was for mother and sufficient to finding lunch, a that support purchasing appellant The mother did acknowledging paternity. not ask him purchase Nothing suggested to the lunch. she said that she thought purchase support. of the as a contribution to far So concerned, said is it anything appellant appears that he thought purchase courtesy of the as a social incident to an unplanned suggests encounter. No evidence that the moth er the lunch accepted Karanja for herself and as anything more than that. observations,
In these we have not making overlooked the appellant evidence that had some before made some Karanja’s evidence, contributions to That support.3 how ever, does not of the upon bear the nature occasion when appellant bought Karanja the mother and lunch. It clearly appears stopped had all contributions by Thеre for an inference that is no basis his purchase regarded by of lunch in 1975was either the mother or was intended him as a renewal of contribution.4 2, supra. See 3. footnote suggestion' by application
4. We note the the dissent may represent depri- statute of limitations here “an unconstitutional process rights.” Dissenting opinion p. vation of at 1354. We do due The order of the lower court is reversed and discharged.
BROSKY, J., dissenting opinion. files a BROSKY, Judge, dissenting: I respectfully dissent. 19, 1977 with the May
This was initiated on proceeding private criminal com filing рetition a defendant, Atkins, charging the plaint by appellee, Janice neglect H. George Singleton, appellant, 4323,1 Kar bastard under 18 Section C.P.S.A. anja, paternity denied May Appellant born proceed elected to in a trial that was criminally non-jury *7 25, ZALESKI, heard on 1977before J. of the Court October Pleas of The verdict of Philadelphia County. Common 8,1977 finding appellant court was entered on December and motions guilty suspending post—trial sentence. Written subsequently were filed and and denied. A argued, 8, 1979, hearing was held on and an order was February 9, awarding per entered on 1979 week for February $22.50 for child. motion to vacate and Appellant’s 9, argument reconsider sentence was denied after on March The by appellant issues raised will be discussed seri- segment atim and will not be limited to a small testimony spectrum. but to the entire appellee
The testified she is woman who met the single appellant Temple began in 1968 at a sexual University him in which relationship with December 1969 continued 1971, regular through on a basis November of even after possibility, by not disсuss this for the issue has not been raised 482, Wiegand Wiegand, See Commonwealth. 461 Pa. 337 A.2d 256 28, 106, repealed, April 1. 18 Section 4323 P.L. No. 46 C.P.S.A. 28, days 3(a) April in 60 of Act P.L. Section effective Section provides prosecutions already No. 46 commenced under this on act shall not be affected section the effective date such repeal of this section. living was with (N.T. another woman 13-15). appellee traveled to Africa with the appellant, his common law wife and during 1971; another man the summer of appellee had sex on one ocсasion during the journey (N.T. 18).
Appellee testified she did not have sexual relations with any man other than the appellant during the period of December, through November, (N.T. 14).
Appellee, to make certain pregnant, she was saw Dr. George Eminetti in November and learned she was pregnant eight or nine (N.T. 20). weeks She discussed her pregnancy time, with appellant. At that appellee was living with her (N.T. 21a) mother and appellant convinced appellee to move home, from her mother’s with whom she was living, get an apartmеnt (N.T. 21a) might as it be easier for him to see appellee. Even she was though pregnant, she continued to have sexual (N.T. 22a). relations with appellant
“He discussing seemed to like my pregnancy, and he seemed enjoy the changes my body through went and he seemed interested in what going on and knowing body that a was growing and he proud seemed (N.T. 22a). it He chose the Karanja. name The name Karanja Ketema means God of the Valley, as we had taken a trip Africa we travelled in the Rift Valley, beautiful, which is a very placе, scenic so for that reason he chose (N.T. 23a). the name” *8 Appellant chose Pennsylvania Hospital, helped with the admission, bills, with helped hospital gave appellant money (N.T. 24a). born, After the child was appellant helped pay apartment months, rent for a few as well as (N.T. the food and other things 26). He was he playful, was he fatherly, “joust would him about” and look after him (N.T. 26a). He continued to have sexual relations with appellee (N.T. 26a). bought gifts child, He for the and one item appellee remembered was a gift plain of some wooden blocks. The last time appellant did anything for Kar- anja was a meeting at Woolworth’s and buying lunch for child, appellee and in the Karanja, summer of and that (N.T. 28a). Karanja” father would towards “he behaved as a some- orthopedist to the Karanja taken Appellant had also during 1972. time appellant on cross-examination testified
Appellee father, he has never denied as the responsibility assumed the 46a). (N.T. Appel- up until this case came being the father months after the child sеveral helped financially lant out fired from his (N.T. 48a). gotten had Appellant was born helping a out having problem he was job, money tight, (N.T. 48a). financially on cross-examination that she further testified
Appellee would see him and for when she money would ask (N.T. 49a); she in small did help ways he would continue to (N.T. 51a); him she told money not continue to harass about (N.T. 54a).2 friends was the father her mother and Page 23: any, Singleton part, George in the admission What if did have “Q. hospital? selection of Well, helped as far as the admission and A. as far as the-he helped-he helped hospital. me with the selection of the He bills; helped pay my hospital he bills.” Pages 25 and 26: bom, money for Did he-after the child was addition to this “Q. bills, you anything hospital give the child? did he for Yes, A. he did. give you? What did he Q. months, Well, helped pay my as well as A. he for rent for few things the food and other that I needed. hospital? you you Did he visit and the child after left Q. Yes, A. he did. How often did he visit? Q. month, frequently, A. He about once a sometimes more would visit frequently. sometimes less regard his to the child when he And what was attitude with Q. visited? him, Well, very playful friendly, A. he was he was he was fatherly. joust him after him.” He would about look Page 27: paying your apartment In addition to for rent and the food and “Q. child, things buy any gifts for the child? for did he Yes, A. he did.” Page 28: George Singleton And how-when was the-has continued to “Q. give you anything present to the time? present A. Not to this time. anything Karanja? he did When was the last time that Q. *9 The quoted testimony is but a thumbnail review of the supports appellee’s entire record which position appel- meeting bought A. The last time was the at Woolworth’s when he lunch for us when we saw him. Q. And when was that? A. That was around the summer of 1975. Q. meeting Was that-how did that come about? Well, bank, section, Karanja A. I was at the in the drive-in in car, hi, up and he walked us said how about some okay. coffee. And so I said And we selected Woolworth’s by.” because it was close Page 45a-Cross-examination: “Q. try you my question. (George Just to answer Did ever tell him Singleton) you thought he was the father of the child? Yes, A. I didn’t feel there was a need. I talked with him about it. responsibility though I discussed it. And he assumed he any question. was the father and there was never He has never up, denied it until this case has come ever ...” Pages 46a—47a: him, father, say George you “A. There was not a need to are the questioned because he never it. Q. you bought gift And I believe said he a for the child on his birthday? second right. A. That’s Well, then, Q. Singleton making do I understand that Mr. was not regular gifts your support or contributions to or the child’s? Well, helped A. he out for several months. Q. But that is several months before the child was born or several months after. A. After he was born.” Page 48a: why help longer “A. I wondered he didn’t out for a time. asking guess Karanja A. I started him I several months aftеr was bom. Well, thing gotten job A. for one he had fired from his and he money getting tight, having didn’t-he said that he was problem helping financially. out things right A. He said were hard now for him and that he was having some difficulties.” Page 49: “Q. you money? When was the next time that him asked that, A. After whenever I would see him I would ask him if he help way, help could small in out some and he would continue to ways-” Page 52: “Q. you money you Did ask him for for the child after understood working he was full time? A. I did.” *10 lant voluntarily contributed to the support of the child. Furthermore, appellant accepted and recognized that he is the father of Karanja responsible and for his 4323(b)
18 provides, alia, Pa.C.S. inter “. . . reputed the father shall have voluntarily contributed to the support of child, the ...” Neither the legislature nor reported cases define the quantity or quality the contribution. We, court, as a should legislate not us,” that “a lunch for or (as in the Young case) amount, $20 or any or act or deed, is not a sufficient contribution. Lacking legislative definition, restriction or it is our view that any such contri- bution, of whatsoever amount, kind or is sufficient to com- ply with the intent of the statute.
The (N.T. 91a) stated, court record, he has ob- served the child identified Karanja, he observed the physical characteristics and coloration of the appellant, he Atkins, observed appellee, Janice her physical characteristics coloration; and the court found to be the father his observations. The Assistant District Attorney point- ed out that the eyebrows, child’s the nose mouth, and the are particularly striking in their recognition to those features of putative (N.T. 92a). father
Appellаnt testified (commencing 94a) N.T. he had known appellee since had sexual relations with her until April or May, 1970. He discussed her pregnancy with her around the holidays (N.T. 97a); of 1971 he consented to her help financially (N.T. 98a); gave he her between $380 $400 around the (N.T. time the child 98a). was born child,
Between birth of May, (when 1972 and 1976 he correspondence received from her attorney) he had “fairly reasonable contact with appellee.”
Appellant further testified he got married on August 1970, but formal ceremony not held until September of (N.T. 117), 1971 аnd he continued a social relationship with appellee born, until after her child was May, (N.T. 94-96). He continued seeing appellee and the child on occasion through (N.T. 100-101). SPAETH, incident and J. is limited to one Opinion paternity which establishes testimony
excludes all other limitations on the statute of and relies for the child construction. ultra strict in a limited and very of actions: 4323(b) limitations Section C.P.S.A. brought must be under this section prosecutions “All child, where except of the birth of years within two voluntarily have contributed father shall reputed prosecution which case a ... such any time within two any at may brought be father.” reputed acknowledgment by contribution or *11 the evidence that found from The lower court child from birth the of the support contributed to voluntarily 1975, eliminating thus in the summer of lunch purchasing the “statute of limita- on whether passing of necessity of appellee. the claim tions” barred of construc- governs principles 105 18 C.P.S.A. Section as follows: tion which reads according shall be construed of this title provisions “The language when the their terms but import fair to the interpreted it shall be differing construction susceptible of and the stated in this title general purposes to further involved.” provision the particular special purposes the lower court found guideline, this Given during child for the mother and buy lunch voluntarily did 1975, coupled such purchase, and that the summer of contributions, for the child support constituted other The appellant of limitations. to toll the statute sufficient The lower court lunch for his son. bought not he deny did weighing record and found, review of the upon further witnesses, elements of the crime that the of the credibility doubt. a reasonable beyond established charged have been bought deny voluntarily not he did defendant-appellant is, of child. The Commonwealth appellee lunch light in the examined course, to have the evidence entitled Holmes, 97, 482 Pa. to it: Commonwealth most favorable (1978). 397 393 A.2d
403
case,
In the
appellee’s
instant
the court found
testimony
charge
established all the elements of the
of neglect (1) appellant’s
(2)
a bastard child:
status as parent;
child; (3)
illegitimacy
appellant’s
appellаnt’s assist-
birth; (4)
in the
of his child
voluntary
ance
from
1975,
purchase
during
of lunch for child
the summer of
contributions,
coupled with other
tolled the statute of limita-
Parrish,
176,
Pa.Super.
tions: Commonwealth v.
378
A.2d 884
The lower court saw and heard the wit-
nesses and the
within the
credibility
parties was
exclusive
of the lower
A judge
control
court.
who sees and
hears the witnesses in a
position
case such
this is
better
than we to decide the issue on the merits: Goldstein v.
Goldstein,
Pa.Super.
Absent any overriding equities putative in favor of the father, fraud, permit such as the law cannot а party to when, renounce duty parentage, even an assumed by so doing, the innocent child would be victimized: Gonzalez v. 307, 313, 369 Andreas, A.2d Pa.Super. very court,
In a
recent
of this
Opinion
Commonwealth v.
George Young,
Appellant,
Pa.Super.
Dr.
Molthan was
Lyndall
per-
studies that she
concerning
grouping
wealth
blood
6,1977. Dr.
May
on
Molthan testified
parties
formed on the
as the father of the child
“cannot be excluded
The doctor further
performed.”
on the basis of the tests
population
the results obtained and
upon
testified that based
could have fathered the
statistics,
of the black males
9.3%
defendant-ap-
that the
probability
or there is 90.7%
125, 130-131). The
(N.T.
the child.
pellant is the father of
be excluded as the father of
finding
cannot
appellant.
challenged by
the child cannot be
establishing pater
the burden of
The Commonwealth met
a reasonable doubt. Commonwealth
nity
charged, beyond
Jacobs,
(1971).
We where such limits are im- paternity determinations of That this is an unconsti- upon non-marital children. posed rights posited of due has been deprivation process tutional in Florida Supreme the Florida Court cogently by mоst on Behalf Health and Rehabilitation Services Department of West, 6 FLR 2005 378 So.2d Gillespie decision applicable review of the comprehensive After a *13 Court, the Florida Court stated: Supreme the United States of limitations are enacted to bar stale “Generally, statutes years which have been dormant for a number of claims objective have not been enforced. The state’s but which claims, however, justification avoid stale is not valid for to illegitimates the discrimination it inflicts on since their right support continuing right renewing is a itself until An action to determine eighteen. pa- the child becomes a stale claim when as a ternity employed prerequi- is not illegitimate’s obtaining continuing, recurring an of site to dormant, right This has never become and for preclude right of limitations to act to this on the statute is illogical. the basis that it is stale “Furthermore, this statute bears at best a tenuous rela- seeks to tionship ensuring to the interest it advance of availability adequate proof paternity. of The arbitrary determination that can be paternity only рroved in four impenetrable illegitimate creates an barrier to an right considering child’s to seek without alterna- tives which deal with the directly problem proof. Al- though proof of become more paternity may difficult with time, passage this mere possibility cannot be al- lowed to work an unconstitutional discrimination against illegitimate children.”
Here, again, the introduction of the HLA blood test serves to minimize passage the effect of the of time on paternity determinations by shifting weight of the evidence to one (See However, 6136). side. our Pa.C.S. treatment of the issues statutory question makes the constitutional academic. Taking consideration, the relevant facts into the formerly effective subject law on the should not be construed as limiting the remedies appellee available to nor as preventing an action determine/prove paternity. question paternity is more than
child, for the
legislatures
courts and the
of the several states
have allowed children born out of wedlock to share in the
putative father’s estates. We cite
examples:
few
Workmen’s compensation
unemployment benefits,
Levy
Louisiana,
391 U.S.
88 S.Ct.
406 Glona v. death, wrongful in claims for
(1968);
sharing
Guarantee,
73,
1515,
American
20 L.Ed.2d
U.S.
S.Ct.
Surety
Aetna
&
Casualty
Company,
Weber v.
(1968);
1400,
(1972);
164,
granting
I would sustain
per
lant to
the award of
week for the
pay
$22.50
12, 1979.
Karanja,
retroactive to October
from the
Accordingly,
Opinion
Judge Spaeth
I dissent
court,
I
the lower
and would reinstate the lower
reversing
court’s
and affirm the decision
the court below.
Opinion
Argued Nov. 1979. Sept.
Filed 1980.
Reargument Denied Dec.