*1 alcoholic beverages day, consumed factor selves consider in reasonably weighing could such jury testimony. Moreover, the could well have considered the jury definition at intoxication to which least one those witnesses “intoxicated is when subscribed: can’t walk you right all over the . .” you’re falling place . N.T. at 285. ignore Many warnings adults constant and pleadings few, our law agencies; however, from enforcement can unaware are truthfully they state that obvious risk of When, drinking here, as two driving. individuals pass an drinking afternoon in one steadily another’s I company, not do believe that one of them must fall off a bar stool his can be before with actual companion charged knowledge of his friend’s unfitness to drive. there Clearly, was suffi- cient support evidence to a finding assumption of risk. Pennsylvania
COMMONWEALTH of DURHAM, Regina Appellant.
Superior Court of March
Submitted July Decided *2 M. Joseph Casey, Defender, Assistant Public and Benja- Lerner, Defender, min for Philadelphia, appellant. Glass, Steven H. Goldblatt and Deborah E. Assistant Dis- trict and F. Emmett Attorneys, Fitzpatrick, District Attor- ney, Philadelphia, Commonwealth, appellee. WATKINS,
Before President Judge, JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
JACOBS, Judge: President appeal
This is an from an adjudication of delinquency based upon charges aggravated possession assault1 and an instrument of crime.2 who Appellant, was nine old years incident, at the time of the contends that the lower court in refusing cognizance erred to take of the which arises when a child incapacity between the ages of alleged seven fourteen is to have committed a criminal agree act. We and therefore reverse. below,
The to which both testimony parties stipulated, was Davis, that as the Delores complainant, was walking by, kicked dirt at her. A appellant fight ensued and appellant, mother, she was saying ran into her house *3 a knife. The resumed and procured fray appellant the in the arm complainant stabbed and back.
The lower court denied defense counsel’s motion for a
adjudicated
directed verdict and
a
appellant
delinquent.
sole contention on
is
appeal
that a
Appellant’s
directed
have been
since
granted
verdict should
the Commonwealth
to
evidence to refute the
present any
failed
presumption
lacked the
appellant
requisite
that
criminal
The
capacity.
court
its
apparently
ruling
lower
based
on the belief that the
Act,
6, 1972,
1464,
Juvenile
Act of December
P.L.
333,
No.
1 et
11
50-101 et
seq.,
seq. (Supp.1976-77),
P.S.
had
§
§
the common law
preempted
presumption
incapacity which
long
See,
has
existed in
e.
g., Commonwealth
Green,
137, 151
(1959);
v.
396 Pa.
A.2d 241
Nagle Alleghe
v.
Co.,
ny judge’s to bolster this conclusion opinion attempts by emphasizing child, that the Juvenile Court acts as for the parens patriae rather than as a retributive of the state. agent 2702. 18 Pa.C.S.A. § 2. 18 § Pa.C.S.A.
542 rejected by Supreme was first
This rationale Gault, 1, in re 387 U.S. 87 In of the United States Court It is now clear that the (1967). 527 1428, 18 L.Ed.2d S.Ct. of a stages delinquency adjudicatory during juvenile, process safeguards of the due many is entitled proceeding, Id. Chief among criminal defendants.3 adult accorded prove that the Commonwealth the requirement is these a reasonable doubt. In of the crime beyond element every 347, 350, (1970), 354 n. 14 339, 265 A.2d 438 Pa. Terry, re 358, 365, 1068, 90 25 397 U.S. S.Ct. Winship, In re quoting Wilbur, (1970). Mullaney v. U.S. L.Ed.2d 368 See (1975); Crop L.Ed.2d 508 Commonwealth 1881, 44 S.Ct. (1975). 463 Pa. per, in the incapacity, common law presumption The fourteen, of seven and is ages child between the case of a in the Nothing alive in this jurisdiction. much very still intent.4 In the legislative indicates a contrary Act Juvenile made no attempt instant Commonwealth rebut case the evidence of criminal introducing capaci by the presumption on this issue was a fact, the evidence available only In ty. indicating appel the file report neuro-psychological retardation.” Counsel for from “borderline lant suffered the issue cursory argument made a on only the prosecution the fact that said she was alluding appellant capacity, mother, but instead got house to into the This guilt. indication of an awareness knife, as an the trial is far upon by judge, which was seized implication, satisfy to rebut the from sufficient all elements of the crimes proving burden of prosecution’s The motion for a a reasonable doubt. charged beyond *4 was, therefore, of appellant improp verdict in favor directed denied. erly
Reversed. juvenile exception the defendant is not entitled to A notable is that 339, (1970). Terry, jury In re 438 Pa. a trial. various sections of the Juvenile Act court’s citation of 4. The lower juveniles special protec- proposition be afforded are to for the indicating any departure rather than tions reinforces our conclusion presumption. law from the common PRICE, J., files a dissenting opinion in which VAN der VOORT, J., joins.
WATKINS, former President Judge, did not participate in the consideration or decision of this case.
PRICE, Judge, dissenting:
I grounds. First, dissent on two I do not believe that the law common presumptions the affecting of capacity children commit crime to a apply juvenile proceeding to determine Second, even delinquency. assuming common law rules apply, record, based on this there was sufficient evidence to rebut that presumption in the case of this nine year old appellant. is,
firstMy
ground
believe,
I
a matter of first impression
in
There is
little doubt that the law is that a
child under the
age
seven is conclusively presumed to lack
the capacity
crime,
to commit a
that a child between ages
seven and fourteen is entitled to a rebuttable presumption of
and when the
incapacity
age
fourteen is reached any
special
or
immunity
incapacity ceases. But
these
in
presumptions,
the criminal law of Pennsylvania,
have been applied where the child under discussion is being
measured
adult
against
standards. See Commonwealth v.
Green,
137,
396 Pa.
As to ground dissent, second my record is short. It speaks for itself.
“MR. (appellant’s ROSEN: Your attorney) Honor, I will agree to to the stipulate complainant’s testimony as contained in the 49.
THE COURT: All right.
MR. (Commonwealth’s COLIHAN: If I attorney) may, Honor, the is your complainant 12-year-old Davis, Delores and she lives at 5030 Cedar Avenue in Philadelphia, and she was interviewed by an Detective assigned Upchurch on the 30th of at April 10:30 P.M. inside Misc.icordia Hospital.
She stated —and I’ll read this verbatim from the 49— that she gone had around to visit a friend who was visiting house, at Regina’s stated she was walking towards the house and Regina a friend was Outside the house playing, Gwen, stated when she and . . . the visit- ing friend, . . . walked by Regina, . . . Regi- na, her, kicked dirt on stated she told Regina, ‘You could say me,’ excuse but Regina said nothing. Then Regina came over and hit her. back, She hit Regina and a fight started, Regina stated went into the house and came out first, with a bottle at and her cousin again, who was house, at vis[i]ting Regina’s took the bottle and it put aside on the ground, stated then Regina ran into the house, that, check house, back in the and said she was get mother. Instead she came out with this knife. came Regina over to her and quoting said— now, ahead—and hit me ‘And I’m going to stab you with knife,’ this stated she started towards Regina try her, take the knife from but she kicked her and Regina fell down. ‘Regina got and we up, started fighting again. still hand,’ She had the knife in her stated Regina had stabbed her in the left arm but she didn’t feel that. ‘The fight continued until we out in got the middle of the street. Then Regina reached around me when I got bent and stabbed me in the back. I tried to over but I up, I just So laid there until the got dizzy. police came. *6 who had been lady watching Some fight called the and that’s the end of the statement police,’ appears the 49. would rest
We on that statement. Honor, MR. Your ROSEN: defense rests and asks directed verdict of not guilty.” view, To even my applying standards, that majority’s brief, concise, agreed statement is upon sufficient clearly any rebut incapacity.
I would affirm the adjudication of delinquency. VOORT, J.,
VAN der in this joins opinion. Pennsylvania
COMMONWEALTH VASQUEZ, Appellant. David Superior Court June
Submitted July Decided