*1 Appellant. Commonwealth v. DiBonaventure, J., Before 15,1965. June Argued Hoffman, Jacobs, Montgomery, Watkins, JJ. him Potter, M. & Liever, Hyman Potter,
James appellant. for
Leon A. Miller, Assistant District Attorney, him Richard W. Eshelman, District for Com- Attorney, appellee. monwealth, 1965: Opinion Jacobs,
Appellant fornication and County. jury trial His motions Berks after *2 judgment denied of and for a new trial were arrest imposed charges. was on both and sentence appellant argument Only by the one is advanced Appellant argues Com- the has merit. that which produced sufficient evidence monwealth has not by prosecutrix’s to overcome show nonaceess husband presumption arising legitimacy of the child the of prosecutrix the to someone the fact that was married appellant conception place. For than took other when says, he cannot be of that he reason, type in of is As The law this clear. speaking for this court Commonwealth Ct. 14 at 16, presumption legitimacy of said: “‘The strongest It until of the to the stands one known law. appear clearly that makes it met evidence which So of ... cannot be the father the child. the husband legitimacy strongly policy the of the favor law may testify non- nor as to that neither husband wife proven ab- . . .’ While non-access not be access. presumption solutely . . . the overcome satisfactory ir- must be and ‘clear, direct, of ” refragable.’ Commonwealth case the established this separated prosecutrix and her 1958 and husband May on 1962. testi- The divorced were appellant had intercourse with the that she fied from June to no one else December, 1961, baby The was on a week. born times three appellant testify. The did Since 1962. 19, prosecutrix conception, married at the was still time of required to was assume the burden Commonwealth presumption rebutting legitimacy by suffi- proof competent finding beyond to sustain a cient reasonable Com- doubt nonaccess her husband. 193 Atl. Gantz, (1937). depends, Whether it meets burden particular on course, facts of each case. testimony given by In this case Commonwealth’s prosecutrix’s witnesses tended show living, during the crucial a small town time, prosecutrix’s four or Prose- five miles from home. apartment cutrix testified that lived in in a she an apartment building small three which contained two or occupied apartments. other The that of nonaccess was limited to Neither; sister and sister-in-law. prosecutrix. conception lived with the At the time prior away thereto one lived two blocks away. other lived a mile Each witness testified *3 she visited two three times a week never saw husband there. This evi equal dence of nonaccess not in Common wealth Levandowski, 134 Pa. 477, by 2d 201 relied on In the court below. prosecutrix, Levandowski, a brother of who lived with prosecutrix, prosecu and a sister of her, who visited daily, they trix almost testified that her never saw at her house. While it is true' that nonaccess by absolutely excluding pos be shown sibility beyond it must be shown access, a reasonable doubt. The in this case leaves much far too unexplained justify finding pre of nonaccess. The sumption by cannot be overcome such meager testimony.
The evidence this case was insufficient to sustain charge adequate there However, charge intercourse to sustain the of fornica- require no tion and trial errors a new trial. Judgment of sentence on fornication is affirmed. Judgment sentence reversed charge tbe dismissed.
Dissenting Opinion by J.: The factual situation in at bar case differs in Commonwealth v. Supe- rior Ct. A. This 2d 14, cited by majority. appeal is governed our in Com- by subsequent decision A. Fletcher, Ct. 65, which is not cited I have majority. some these familiarity with cases since I wrote opinion each. at bar I agree evidence in the record was sufficient Bertolet I go jury. would therefore affirm the judg- ment. J., join dissenting
opinion.
Kungsgaten, Philadelphia, Appellant. Inc. v.