Record and brief — Robinson v. Pennsylvania

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Supreme Court, U.S.

FILED

NUMBER FEB 2 6 1982

Alexander L. Stevas, Clerk

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

VINCENT ROBINSON, APPELLANT

Vv.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE

ON APPEAL FROM THE SUPREME COURT OF

PENNSYLVANIA (PENNSYLVANIA SUPREME

COURT NO. 236, JANUARY TERM, 1979)

JURISDICTIONAL STATEMENT

JOHN W. PACKEL, Assistant Defender

Chief, Appeals Division

Defender Association of Philadelphia

121 North Broad Street

Philadelphia, Pennsylvania 19107

(215) 568-3190 ~

——_— eee

I. QUESTION PRESENTED

1. Should Not The Pennsylvania Statute, 18 Pa.C.S. §3102,

Be Declared Unconstitutional As Being Violative Of The Right

To Due Process Of Law Under The Federal Constitution, Since

It Absolutely Prohibits A Defendant In A Statutory Rape

Prosecution In Pennsylvania From Presenting A Defense Of A

Reasonable Belief That The Consenting Complainant Was Of

Sufficient Age Under The Law To Consent To Sexual Inter-

course, Thus Creating A Strict Liability Felony Offense With

A Maximum Penalty Of Ten Years Imprisonment Without Any

Proof Of Mens Rea Or Culpabilisry?

alte

Il.

VIIl.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS IN COURTS BELOW

GROUNDS ON WHICH JURISDICTION IS INVOKED

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED IN APPEAL

STATEMENT OF THE CASE

THE QUESTION PRESENTED IS SUBSTANTIAL

CONCLUSION

PAGE

-_—- ee — —

III. TABLE OF AUTHORITIES

FEDERAL CASES

ARGERSINGER V. HAMLIN

407 U.S. 25, 92 S.Ct. 2006 (1972)

BALDWIN V. NEW YORK

399 U.S. 66, 90 S.Ct. 1886 (1970)

DUNCAN V. LOUISIANA

391 U.S. 145, 88 S.Ct. 1444 (1968)

HOLDRIDGE V. UNITED STATES

282 F.2d 302 (8th Cir. 1960)

IN RE WINSHIP

397 U.S. 458, 90 S.Ct. 1068 (1970)

JACKSON V. VIRGINIA

443 U.S. 307. 99 S.Ct. 2781 (1979)

MORISSETTE V. UNITED STATES

342 U.S. 246, 72 S.Ct. 240 (1952)

NELSON V. MORIARITY

484 F.2d 1034 (lst Cir. 1973)

SMITH V. PEOPLE

361 U.S. 147, 80 S.Ct. 215 (1959)

UNITED STATES V. ERNE

576 F.2d 212 (9th Cir. 1978)

UNITED STATES V. INTERNATIONAL MINERALS &

CHEMICAL CORPORATION —

402 U.S. 558, 91 S.Ct. 1697 (1971)

STATE CASES

COMMONWEALTH V. COLDING

482 Pa. 112, 393 A.2d 404 (1978)

COMMONWEALTH V. ROBINSON

Pa., 438 A.2d 964 (1981)

GOODROW V. PERRIN

403 A.2d 864 (N.H. 1979)

ROBEY V. STATE

611 P.2d 209 (Nev. 1980)

STATE V. GUEST

583 P.2d 836 (Alaska 1978)

WALKER V. ALABAMA

356 So.2d 672 (Ala. 1977)

WATSON SEAFOCD & POULTRY COMPANY V. THOMAS

289 N.C. 7, 220 S.E. 2d 536 (1975)

PAGE

12.

5,12

STATUTORY PROVISIONS

18 Pa.C.S.A. §103

18 Pa.C.S.A. §1103(2)

18 Pa.C.S.A. §3102

18 Pa.C.S.A. §3122

OTHER SOURCES

| ANGEL, SUBSTANTIVE DUE PROCESS AND THE CRIMINAL LAW

9 Loyola Univ. Chic. L.J. 61 (1978)

HART, THE AIMS OF TKE CRIMINAL LAW

23 Law & Contemporary Prob. 401 (1958)

- SALTZMAN, STRICT CRIMINAL LIABILITY AND THE UNITED

STATES CONSTITUTION: SUBSTANTIVE CRIMINAL LAW DUE

PROCESS

24 Wayne L. Rev. 1571 (1978)

-b-

Passim

7,9

IV. OPINIONS IN COURTS BELOW

The majority opinion of the Pennsylvania Supreme Court

affirming appellant's judgment of conviction and sentence,

as well as the dissenting opinior. on behalf of three Pennsy-

lvania Supreme Court justices, both issued on December 30,

1981, are collectively attached as Exhibit "A" in the Ap-

pendix. These opinions are reported as Commonwealth of

Pennsylvania v. Robinson, Pa., 438 A.2d 964 (1981). Exhibit

"B" is the opinion of the lower appellate court, the Superior

Court of Pennsylvania, of March 16, 1979, affirming appel-

lant's judgment of conviction and sentence. This opinion is

reported as Commonwealth v. Robinson, 264 Pa. Super. 345,

399 A.2d 1084 (1979). The opinion of the trial court judge

of the Common Pleas Court of Philadelphia in support of his

denial of post-verdict relief was issued on November 25,

1977, is unreported, and is attached as Exhibit "Cc".

V. GROUNDS ON WHICH JURISDICTION IS INVOKED

The judgment of the Supreme Court of Pennsylvania, af-

firming appellant's judgment of conviction and sentence was

entered on December 30, 1981, and held that 18 Pa.C.S.A.

§3102, a Pennsylvania statute, was not unconstitutional on

its face or as applied as being violative of the due process

clause of the Fourteenth Amendment of the United States Con-

stitution.

A notice of appeal to this Court was filed in the

Supreme Court of Pennsylvania and in the Common Pleas Court

of Philadelphia on February 24, 1982, and these are attached

as Exhibits "D" and "E" respectively.

This appeal is being docketed in this Court within 90

days from the Pennsylvania Supreme Court's affirmance of

appellant's judment of sentence. The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(2).

eee ee

—_——— ——

VI. STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED IN APPEAL

18 Pa.c.S.

A. §3102

18 Pa.c.S.

§3102. Mistake as to age

Whenever in this chapter the

criminality of conduct depends

on a child being below the

age of 14 years, it is no de-

fense that the actor did not

know the age of the child, or

reasonably believed the child

to be the age of 14 years or

older. When criminality depends

on the child's being below a

critical age other than 14 yeacs,

it is a defense for the actor

to prove by a preponderance of

the evidence that he reasonably

believed the child to be above

the critical age.

A. §103

18 Pa.C.S.

§103. Definitions

Subject to additional definitions

contained in subsequent provi-

sions of this title which are

applicable to specifc parts, ar-

ticles, chapters cr other provi-

sions of this part,the fol lowine

words and phrases, when used in

this title shall have, unless

the context clearly indicates

otherwise, the meanings given

to them in this section:

* * * * * * «

“Reasonably believes" or “reason-

able beliet.” A belief which the

actor is not reckless or negligent

in holding.

A. §3122

§3122. Statutory rape

A person who is 18 years of age or

older commits statutory rape, a

felony of the second degree, when

he engages in sexual intercourse with

another person not his spouse who

is less than 14 years of age.

ate

18 Pa.C.S.A. §1103(2)

§1103. Sentence of imprisonment

for telony

A pesems who has been convicted of

felony may te sentenced to imprison-

ment as follows:

x ~~ & & & &

(2) Im the case of a felony of

the second degree, for a term

which shall be fixed by the court

at not more than ten years.

| United States Constitution Fourteenth Amendment, Section l

Section 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens cf the

United States and of the State

wherein they reside. Wo State

shall make or enforce any law

which shall abridge the privi-

leges or immunities of citizens

of the United States; nor shall

any State deprive any person of

life, liberty or property, with-

out due process of law; nor deny

to any person within its juris-

diction the equal protection of

the laws.

VII. STATEMENT OF THE CASE

Appellant, Vincent Robinson, was arrested by Phila-

delphia, Pennsylvania police on January 3, 1977, and charged

in connection with an incident occuring on January 1, 1977

involving Harriet Saunders. He was held for court following

a preliminary hearing, and the Philadelphia Distric . Attorney

returned Informations against him at January Term, 1977,

charging him with statutory rape (No. 1068), involuntary

devicte sexual intercourse (No. 1069) and indecent assault

(No. 1070).

Appellant was tried before the Honorable Charles Lord

in Philadelphia Common Pleas Court on April 6, 1977, sitting

without a jury, after appellant waived his right to a jury

trial.

There was little factual despute in the trial of the

case. The prosecuting witness testified that although she

was thirteen and one-half years old, six months less than

the age of consent, she had given the eighteen year old

appellant, Vincent Robinson, a false name and told him she

was sixteen years of age before freely engaging in sexual

intercourse with him. The statutory rape statute, 18 Pa.C.S.A.

§3122, under which Vincent Robinson was prosecuted, makes an

individual over the age of 18 who has sex and relations with

another under the age of 14, guilty of a felony and subjects

that individual to a potential prison term of ten years.

After the Commonwealth rested, the defense demurred to

all the charges. The trial judge sustained the demurrer to

the charges of involuntary deviate sexual intercourse and

indecent assault, but overruled the demurrer to the charge

of statutory rape. In doing so, the judge rejected the

claim made on this appeal, that 18 Pa.C.S.A. §3102 we

unconstitutional because it violated due process of law.

a me ae ee nee ae

Yvonne Smith, who had been called by the prosecution,

was then called by the defense, and testified that her

brother, appellant, had a reputation for good character in

the community, and that he was employed and was also a

member of the military reserve (N.T. 3133). The defense

then rested, and after argument (unrecorded) by counsel, the

judge found defendant guilty of stitutory rape.

Thus this case squarely presents a situation in which

Vincent Robinson was prevented from asserting the defense

that he was led to believe and in fact reasonably did be-

lieve that he was committing no violation of the law when he

engaged in a voluntary physical relationship with a girl who

had told him, and who he believed, was sixteen years of age.

Appellant filed timely written post-verdict motions and

a memorandum in support of those motions raising the issue

involved in this appeal, among others, and on September 26,

1977, the trial judge denied post-verdict relief and sen-

tenced defendant to a term of two years probation on the

statutory rape conviction.

A timely appeal was then filed in the Superior Court of

Pennsylvania, with the case being submitted on briefs.

Appellant's brief specifically raised the claim of the con-

stitution invalidity of 18 Pa.C.S.A. §3102 under the due

process clause, the claim raised on this appeal. On March

16, 1979, the Superior Court affirmed appellant's judgment

of conviction and sentence. Appellant then filed a timely

written petition for allowance of appeal to the Pennsylvania

Supreme Court specifically raising the constitutional claim

involved in this appeal, and on June 1, 1979, the Pennsyl-

vania Supreme Court, by per curiam order granted the petition

for allowance of appeal. The claim of the constitutional

invalidity of 18 Pa.C.S. §3102 under the due process clause

-10-

—— SS

of the United States Constitution was then specifically

raised again in appellant's brief, and at oral argument

before the Pennsylvania Supreme Court. On December 30,

1981, by a four to three decision, the Pennsylvania Supreme

Court affirmed appellant's judgment of conviction and sen-

tence. The three dissenting justices dissented on the

ground that they would hold 18 Pa.C.S.A. §3102 unconstitu-

tional as being violative of the due process clauses of the

United States and Pennsylvania Constitutions.

offen

VIII. THE QUESTION PRESENTED IS SUBSTANTIAL

This case presents the substantial fundamental question

of whether the due process clause places any limitations on

a state's power to impose criminal sanctions on the basis of

strict criminal liability, and if so, what those limitations

are.

Because of the operation of 18 Pa.C.S.A. §3102, which

prohibits any defense of a reasonable mistake of age in a

statutory rape prosecution in Pennsylvania, appellant, an

eighteen year old boy, was convicted of a serious felony

carrying a maximum penalty of ten years imprisonment* on the

basis of strict criminal liability without any showing of

criminal intent, negligence or recklessness.** See 18

Pa.C.S.A. §103. That this is a significant question is

clear from the closely divided decision of the Pennsylvania

Supreme Court, where three of the seven justices dissented

on the gromids that "a felony conviction, carrying the

possible penalty of a lengthy prison term, without a finding

of criminal intent is unduly harsh and offensive to the due

process protections of both the Pennsylvania and United

States Constitution." Commonwealth v. Robinson, Pa., 438

A.2d 964, 968 (1981).

* See 18 Pa.C.S.A. §3122; 18 Pa.C.S.A. §1103(2). Appel-

lant was sentenced to a term of probation of two years.

Under Pennsylvania law if he then violated any of his con-

dicions of probation, during his term of probation, he could

be sentenced to up to the ten years imprisonment after a

revocation of probation. See Commonwealth v. Colding, 482

Pa. 112, 393 A.2d 404 (1978).

** It is undisputed from the record, at trial, estab-

lished by the complainant's testimony, that she had con-

sensual sexual intercourse with appellant after meeting

hia, —_ him a false name, and misrepresenting her age

as being sixteen years old. The complainant, it turned

out, was in fact thirteen and a half years old, and Penn-

sylvania’'s statutory rape law defines the offense as es-

sentially as one individual at least eee years old

having sexual intercourse with another individual less than

fourteen years old. The relief requested is a new trial

where appellant would be permitted to present the defense

of a reasonable mistake of age since the trial judge had

ruled at the completion of the Commonwealth's case that

he would not consider such a defense because it was pro-

hibited ~ 18 Pa.C.S.A. §3102, the statute counsel now

seeks to have declarec unconstitutional.

-12-

In the past this Court has noted that the constitu-

tional power of both the states and Congress to enact cri-

minal statutes on the basis of strict liability without any

element of scienter is probably not limitless and that such

statutes would raise a substantial due process question if

not directed at the regulation and possession of dangerous

and noxious materials such as hand grenades, drugs, and sul-

furic acid. United States v. International Minerals &

Chemical Corp., 402 U.S. 558, 564-65, 91 S.Ct. 1697, 1701

(1971); Smith v. People, 361 U.S. 147, 150, 80 S.Ct. 215,

217 (1959); see Morissette v. United States, 342 U.S. 246,

72 S.Ct. 240 (1952). However, the substantive due process

question presented by this appeal has not squarely been

decided.

This Court has held that due process requires that the

standard to be applied in evaluating the sufficiency of the

evidence at state trials must be one of proof beyond a rea-

sonable doubt,* and that due process of law requires that a

state conviction be reversed if insufficient evidence was

presented to justify a rational trier of fact in finding

that every element of the crime had been established beyond

a reasonable doubt.** As commentators have emphasized, con-

stitutional protections such as these are meaningless if there.

are not also some substantive due process limitations on a

state defining a criminal offense to make an act a crime

without requiring proof of mens rea or culpability. Saltzman,

Strict Criminal Liability And The United States Constitution:

Substantive Criminal Law Due Process, 24 Wayne L. Rev. 1571,

1626, 1637 (1978). See Hart, The Aims Of The Criminal Law,

23 Law & Contemporary Prob. 401, 431 (1958).

* n Re Winship, 397 U.S. 458, 364, 90 S.Ct. 1068,

1072- 7 T1975).

** Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979).

aitie

om a

In interpreting what procedural constitutional protections

an accused is entitled to, such as the right to jury trial and

the right to counsel, this Court has considered the severity

of the actual or potential penalty involved in the prosecution

to be controlling or significant, in holding that accused are

entitled to these constitutional protections for all but petty

offenses. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006

(1972); Baldwin v. New York, 399 U.S. 66, 68-69, 90 S.Ct. 1886,

1888 (1970); Duncan v. Lousiana, 391 U.S. 145, 88 S.Ct. 1444

(1968). In recent years many courts have observed that the due

process clause would also seem to render invalid a statute

that had the effect of permitting conviction for a felony

carrying a potential prison term ‘many years imprisonment

on the basis of strict criminal liability without proof of

of any mens rea.* See United States v. Heller, 579 F.2d 990,

994 (6th Cir. 1978); United States v. Erne, 576 F.2d 212,

214-15 (9th Cir. 1978); Robey v. State, 611 P.2d 209, 210

(Nev. 1980); State v. Guest, 583 P.2d 836, 838-39 (Alaska

1978); Walker v. Alabama, 356 So. 2d 672 (Ala. 1977); Watson

Seafood & Poultry Company v. Thomas, 289 N.C. 7, 15, 220 S.E.

2d 536, 542 (1975). Contra, Nelson v. Moriarity, 484 F.2d

1034 (lst Cir. 1973); Goodrow v. Perrin, 403 A.2d 864 (N.H.

1979). Justice Blackman while still a circuit judge for the

Eighth Circuit, after reviewing this Court's previous decisions,

noted in upholding the constitutional validity of a criminal

statute that carried a maximum penalty of six months imprison-

ment, that he viewed elimination of intent in a criminal statute

as not being violative of the due process clause if certain

factors were present, including a statutory “penalty [that]

* This recognizes the principle that the potential bs

severity of the result is an important factor to consider in

determining what process is due, and the greater the penalty

which may be imposed the more is due. See Angel, Substan-

tive Due Process And The Criminal Law, 9 Loyala Univ. Chic.

L.J. 61, 55 (1978).

ohn

is relatively small, where conviction does not gravely

besmirch..." Holdridge v. United States, 282 F.2d 302, 310

(8th Cir. 1960).

Appellant has been convicted of a very serious felony,

carrying a potential ten years imprisonment which has gravely

besmirched his reputation, and this Court should now decide

whether a state statute which imposes such criminal punish-

ment on the basis of strict liability without any proof of

mens rea or culpability comports with the Fourteenth Amend-

ment's due process clause.

CONCLUSION

For these reasons, this Court should note probable juris-

diction of this appeal.

ReSp¢ctfully/ submitted,

° Assistant Defen

Chief, Appeals Division

-15-

—— XIpueddy

--COMMONWEALTH of Pennsylvania,

¥.

_ Vincent ROBINSON, Appellant.

Supreme Court of Pennsylvania

Argued Oct. 26, 1981. _

Decided Dec. 30, 1982.

Defendant was convicted in the Court

of Common Pleas, Criminal Trial Division,

Philadelphia, No. 1068 January Session

1977, Charies A. Lord, J., and he appealed

The Superior Court, No. 2500 October

Term, 26. PaSuper. 345, 399 A2d 108,

Edmund Spaeth, J., affirmed, and defend.

ant appealed. The Supreme Court, No. 236

January Term, 1979, Nix, J., held that: (1)

testimony of defendant's sister as to de

fendant’s age was sufficiently reliable and

consistent to sustain conviction, and (2)

statutory rape statute which denied defend-

ant defense as to mistake or misrepresenta-

tion as to victim's age did not deny defend, -

ant due process,

- Affirmed ._

_ Kauffman, J., dissented and filed opia-

ion in which Larsen and — a,

joined.

1. Criminal Law @ 1159.2(1) -

Evidence otherwise sufficient will: be

found insufficient — if it is yaa un

reliable.

2 Rape @=>52(1)

In prosecution for statutory rape, testi-

mony of defendant's sister was sufficiently

reliable and consistent on question of de

fendarit’s age to sustain conviction. 18 Pa

CSA § 3102

3 Constitutional Law ==48(1)

Legislative enactments are clothed

with presumption of constitutional validity.

4. Constitutional Law 2513 . -

‘Touchstone of due process is protection

of ‘individual against arbitrary action of

government. U.S.CAConstAmend 14.

EXHIBIT "A"

5. Constitutional Law =258(5)

Rape =2

Statutory

defense of. mistake

80 at his own peril.

Const_Art. 1 $9;

-~-—_—___

John W. Packel, Chief, Appeals Div,

Leonard N. Sosnov, Philadelphia, for appel-

lant

18 PaCS A. § 3102;

US.C_A.Const Amend.

Before O'BRIEN, C. J., and ROBERTS,

NIX, LARSEN,

MAN and WILKINSON, JJ.

OPINION

NIX, Justice,

This is an appeal, by allowance, from the

Superior Court which unanimously affirmed

The pertinent facts are as follows Har-

riet Saunders, the

friend's house, and from there to Thomas’

Jefferson University Hospital The Com-

monwealth called appellant's sister, Yvonne

As a foundation for this

testimony, she stated that she was 19 years

older than the appellant: that she was not

Whenever in this chapter [chapter 31) the

Criminality of conduct depends on s child

being below the 14 years, it is

out of school. Later in the trial, appellant's

counsel recalled Mrs. Smith as a witness on

appellant's behalf end she testified tha: “his

is Nevember 9th of this year

(1977] He should be 19, I guess.”

The appellant was found guilty of statu-

tory 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 Com.

monwealth v. Robinsob, 264 PaSuper.Ct

345, 399 A2d 1084 (1979). :

In this appeal, the appellant asserts (1)

that the Commonwealth failed to prove be-

yond @ reasonable doubt that he was over

18 on the date of the inci & and (2) that

Section 3102 of the Criminal Code is uncon.

criminal liability

without proof of mens res or culpability in

violation of his right to due

teenth Amendment of the United States

tion. _

As to the appellant's first claim, suffi-

ciency of the evidence, the sole argument

advanced by the appellant is that the testi.

mony produced to show that appellant was

over 18 years old at the time of the incident

was so weak and inconclusive as to be insut.

ficient as a matter of law to establish that

be reasonably

Deliewed the child to be above the critical age

he was older then eighteen. This claim is

conspicuously groundless ;

~ (1,2) 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 A-2d 417 (1978). The testi-

mony of Yvonne Smith, the appellant's sis-

ter, 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-sppellant would be 19

in 1977, does not render her testimony fa-

tally unreliable under the holding stated in

Commonwealth v. Farquharson, 467 Pa 50,

354 A2d S45 (1976). Since her use of the

to support the factfinder’s verdict with rea-

son and not surmise. Thus, it is readily

apparent that the evidence produced at trial

was sufficient to sustain appellant's convic-

tion.

3) The appellant’s second argument is

as equally unfounded as his first It is well

settled that legislative enactments are

‘dothed with a presumption of constitution-

. National Wood Preserves, Inc.

vy. Commonwealth, Department of Eaviron-

mental Resources, 489 Pa. 223, 414 A2d 37

(1980). In this Court to find

that 18 PaCSA § 3102, s duly enacted

. statute, is unconstitutional in

Constitution? the sppellant carries the

2 Article L, § 9 reads: yo -

- Io aD criminal the accused hath

“. & right to be beard by himself and his coun

heavy burden of demorstrating that the

statute clearly, palpably, and plainly vio

lates the Constitution. Wajert v. State

Ethics Commission, 491 Pa 255, 262 n 6,

420 A2d 439 (1980); In re Williams L., 477

Pa. 322, 382 A2d 1228 (1978); Daly v.

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.

{4) The touchstone of due process is pro-

tection of the individual against arbitrary

action of the government Wolff v.

McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2363,

2975, 41 L.Ed2d 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 de-

fendant may be denied the defense as to

mistake or misrepresentation as to the

child’s age.

[5] The primary consideration in probib-

iting uniawful, consensual intercourse with

an underage female has been traditionally

attributed to the legislative desire to pro

tect those who are too unsophisticated to

protect themselves. Commonwealth v.

Walker, 468 Pa 323, 335, 362 A2d 227, 232

(1976). Although due process considera-

tions impose some limitations on the ab

sence of a knowledge requirement from the

definition of « criminal offense, see, ¢g.

Lambert v. California, 355 U.S. 225, 78 S.Ct

240, 2 L.Ed2d 228 (1957), due process does

not require that the appellant be afforded

the defense of mistake of the victim's age

in a stetutory rape prosecution? Thus, the

Pennsylvania legislature, in line with « sub-

stantial majority of legislatures which have

Judgment of Sentence Affirmed.

KAUFFMAN, J., filed a dissenting opin-

ion in which LARSEN and FLAHERTY,

JJ., joined. Ps

3. Commonwealth v. Koczwara, 397 Pa 575,

155 A2d 825 (1959), cert. denied 363 U.S. 848,

80 S.Ct. 1624, 4 LEd2d 1731 (1960), clearly

does not mandate a different result. As noted

_ by the Superior Court in its opinion in the

instant case, Kocrwara heid that a bar owner

. Could not be imprisoned where he was vicari-

ously liable for the act of an employee. Here,

by contrast. there is no question of appellant's

Ziability for actions of anyone else. He was

held liable for his own actions only. Common-

wealth v. Robinson, supra 264 Pa.Super. at 351,

399 A2d 1084. Thus, Koczwara does not aid

rado (CRS. § 18-3-406(1); Indiana (S.A.

§ 35-42-4-3(e); Maine (17A M.R.S.A. § 252),

Minnesota (MLS.A. § 609.342(a); Washington

(RCW.A. § 9A.44.030). The following states

have also removed the defense by legislative

enactment: Florida (F.S.A. § 794.021); Louisi-

g be

facile

ay Fo

UBT

Model

Code on which it is based. The Model

Code, like the Pennsylvania statute, bars the

defense of mistake of age where the female is

HEE

- KAUFFMAN, Justice, dissenting. -

I dissent from that part of the Court's

opinion which upholds the constitutionality

of Section 3102 of the Crimes Code.!

_. Appellant was precluded by Section 3102

from asserting as 2 defense to the charge of

statutory rape undisputed evidence that the

complainant deliberately misrepresented

her age as sixteen and that appellant rea-

' somably believed her ‘misrepresentation.*

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.

policy that the still tender age of fourteen is

appropriate. Furthermore, prior case law in

Pennsylvania beid that mistake of age was no

defense to a charge of contributing to the delin-

quency of a minor, since it would not be a

defense to a charge of statutory rape. Com-

monwealth v. Sarricks, 161 Pa.Super.Ct. 577,

56 A2d 323 (1948). Thus, the legislature's de-

_ termination to bar the defense was based on a

long-standing and widely accepted principle of

law and public policy, and may not be invalida-

;

- .

1, .Act of December 6, 1972, P.L. 1462, No. 334,

§ 1, as amended, 18 Pa.CS.A. § 3102. Section

3102 provides: ; -

" § 3102. Mistake as to age

Whenever in this chapter the criminality

conduct depends on a child being below the

age of 14 years, it is no defense that the actor

did not know the age of the child, or reason-

ably believed the child to be the age of 14

_ years or older. When criminality depends on

’ the child’s being below « critical age other

than 14 years, it is a defense for the actor to

prove by a preponderance of the evidence

that he reasonably believed the child to be

above the critical age. j .

18 PaCS. § 3102 (Emphasis supplied).

2. ' The felony of statutory rape, which carries a

penalty of up to ten years’ imprisonment, is an

offense based solely on the ages of the accused

and the complainant 18 Pa.CSA. § 3122

Section 3122 of the Crimes Code makes crimi- ~

nal sexual intercourse between a person eigh-

teen years old or older and a person below the

age of fourteen. Jd At the time of the inci-

‘dent leading to prosecution in this case, appel-

_ lant was apparently eighteen, while complain-

ant was thirteen and a half years old.

More than twenty years ago, this Court

held that imprisonment on the basis of vica- —

rious criminal liability without a showing of

mens rea would deny due process of law

under Article I, Section 9 of the Penrisyiva-

nia Constitution. .Commonwealth v. Koc-

_ gwara, 397 Pa. 575, 580, 155 A.2d 825, 829—

$30 (1959). See Commonwealth v. Field,

490 Pa. 519, 417 A.2d 160 (1980) (inferring

culpability requirement for homicide by ve-

hicle conviction). Today, however, the ma-

jority 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 lie was mis-

led to form the reasonable belief that he

was committing no“crime.? _ —.

Under the circumstances of this case, a

felony conviction, carrying the possible pen-

alty of a lengthy prison term, 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‘ As the Cali-

fornia Supreme Court has cogently stated:

(T}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

" ? Groumatances be has not consciously tak-

en a risk. Instead he had subjectively

eliminated the risk by satisfying himself

on reasonable evidenc2 that the crime

* cannot be committed. If it occurs that he

3. It ts undisputed that the complainant gave a |

misrepresented

her age

prodieatye a tery bade = tor ty Moris-

sette v. ed Sates, 3S CS. OG, SS

240, 96 L.Ed 288 (1951).

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)§ ~~. -

Rather than summarily dismissing appel-

lant’s constitutional claim, as does the ma-

jority, I would hold unconstitutional that

part of Section 3102 which denies an ac-

cused the opportunity to offer proof of rea-

sonable belief as to age and remand this

case to the trial court to permit appellant to

raise as a defense his reasonable belief that

the ‘complainani’s misrepresentation as

her age was true® , fe

“LARSEN and FLAHERTY, JJ., join in

this dissenting —

S. Some states have expressed the same view

through legislation See, e.g. Arizona, Ariz

Rev.StatAnn. § 13-1407(B); Arkansas, Ark

StatAnn. § 41-1802(3); Montana, Mont.Rev.

. Codes Ann. § 94-5-601.

-. ons niet enttus wee eiieeen

the statutory rape statute, Section 3122, is un-

constitutional, but only that appellant must be

permitted to show that he had been misied into

_ believing that he was committing no crime.

. o™

Vincent ROBINSON, Appellant.

Superior Court of Pennsylvania.

Submitted June 12, 1978.

EXHIBIT "B"

346 COM. v. ROBINSON

[264 PaSupertor CL 345, (1979).

formation No. 1068, January Session, 1977, Lord, J., of

statutory rape, and he appealed. The Superior Court, No.

2500 October Term, 1977, Spaeth, J., held that: (1) sufficient

foundation was laid for introduction of defendant’s sister's

testimony in regard to his age at time of the charged

offense; (2) evidence sufficiently established that defendant

was over 18 on date of the incident; (3) statute prohibiting

an accused from claiming, as a defense, that he reasonably

believed sexual offense victim was 14 years or older if

criminality of conduct depends on child being less than 14

years of age was not unconstitutional, and (4) such statutory

provision was not invalid because it assertedly conflicted

with several other statutory provisions.

Judgment of sentence affirmed.

L. Criminal Law e560

Verdict of guilt may not be based on surmise or conjec-

ture.

2. Criminal Law ¢=398(1)

Generally, best proof of age is testimony of living

witnesses who were present at the birth and distinctly

remember the event or who, though not present, were so

situated as to have positive knowledge and remembrance of

the date of birth.

3. Criminal Law 421(3)

In prosecution for statutory rape, sufficient foundation

for defendant’s sister’s testimony in regard to defendant’s

age at time of charged offense was provided by sister’s

testimony that she was 19 years older than defendant and

that, though she was not present at his birth, she saw him

three days later on certain date and that he was born in

certain hospital. 18 PaC.S.A. § 3122.

4. Rape ¢=52(4)

Evidence in proceeding in which defendant was convict-

ed of statutery rape sufficiently established that defendant

was over 18 on the date of the incident. 18 PaC.S.A. § 3122.

COM. v. ROBINSON 347

(264 PaSuperior CL. 345, (1979)

5. Rape 2

Statute prohibiting an accused from claiming, as &

defense, that he reasonably believed sexual offense victim

was 14 years or older if criminality of conduct depends on

child being less than 14 years of age is not unconstitutional.

18 PaC.S.A. § 3102.

6. Rape 2

Statute, which prohibits an accused from claiming, as a

defense, that he reasonably believed rape victim was 14

years or older if criminality of conduct depends on child

being less than 14 years of age, was nog invalid due to fact

that it allegedly conflicted with other statutory provisions,

in light of fact that the statute prohibiting use of such a

defense was a specific provision relating to sexual offenses

and the other statutory provisions in question were previous-

ly enacted provisions dealing with general guidelines on

culpability for the whole of the Crimes Code. 1 PaC.S.A.

§ 1983; 18 Pa.C.S.A. §§ 302, 304, 305, 3102

John W. Packel, Assistant Public Defender, Chief, Appeals

Division, Leonard Sosnov, Assistant Defender, Philadelphia,

for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Ap-

peals Division, Philadelphia, for Commonwealth, appellee.

Before JACOBS, President Judge, and HOFFMAN, CER-

CONE, PRICE, VAN der VOORT, SPAETH and HESTER,

JJ.

SPAETH, Judge:

This is an appeal from judgment of sentence for statutory

rape."

The complainant testified that appellant had sexual inter-

course with her on January 1, 1977, when she was 13 years

1. Section 3122 of the Crimes Code reads: “A person who is 18 years

of age or older commits statutory rape, a felony of the second degree,

when he engages in sexual in:ercourse with another person, not his

spouse who is less than 14 years of age.”

P ;

348 COM. v. ROBINSON

[264 PaSuperior CL. 345, (1979).]

old. N.T. 14. 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, 1977. As a foundation for this

testimony, she stated that she was 19 years older than

appellant; that she was not present at his birth, but saw

him three days later, on November 12 or 13, 1958, N.T. 10,

11; that he was born in Abington Hospital; and, finally,

that her mother’s name was Doris and her father's name,

Emanuel, N.T. 13. On 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.

N.T. 12 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.” N.T. 36.

Appellant argued in his post-verdict motions, and argues

to us, (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 Crimes Code? is

unconstitutional because it does not allow a defendant to

prove that he labored under a reasonable mistake of fact as

to the age of the victim.

{1} It is axiomatic that “we must review the evidence in

the light most favorable to the Commonwealth, the verdict

winner, and accept every reasonable inference arising from

that evidence in support of [its] position.” Commonwealth

v. Wright, 449 Pa. 358, 360, 296 A.2d 746, 747 (1972). It is

also true, however, that “a verdict of guilt may not be based

upon surmise or conjecture.” Commonwealth v. Farquhar-

2. Section 3102 reads: “Whenever in this chapter [chapter 31] the

criminality of conduct depends on a child being below the age of 14

years, it is no defense that the actor did not know the age of the

child, or reasonably believed the child to be the age of 14 years or

older, When criminality depends on the child's being below a critical

age other than 14 years, it is a defense for the actor to prove by a

preponderance of the evidence that he reasonably believed the child

to be above the critical age.”

COM. v. ROBINSON 349

[264 PaSupertor CL. 345, (1979))

son, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976). In applying

these principles here, the critical question is whether the

Commonwealth laid a sufficient foundation for the introduc-

tion of Yvonne Smith's testimony.

(2] There is a paucity of Pennsylvania case law as to

what foundation must be laid before a witness may testify

that another person is over a particular age. The general

rule seems to be that “the best proof of age is the testimony

of living witnesses who were present at the birth and

distinctly remember the event, or who, although not present,

yet were so situated as to have positive knowledge and

remembrance of the date thereof.” Messina v. New York

Life Ins. Co., 173 Miss. 378, 161 So. 462, 464 (1935); see also

Howard v. Kentucky Alcoholic Beverage C. Board, 294 Ky.

429, 172 S.W.2d 46 (1988); Harris v. Switchmen’s Union of

North America, 237 S.W. 155 (Mo.App.1922); Southern Ins.

Co. v. Tate, 22 Ala-App. 72, 112 So. 365 (1927). Some courts

have cautioned that in admitting this type of evidence,

“{mJjuch must be left to the discretion of the trial judge

. .+” McLoughlin v. Sheehan, 250 Mass. 132, 145 N.E.

259, 261 (1924). In State v. Gray, 292 N.C. 270, 233 S.E.2d

905 (1977), the Supreme Court of North Carolina was con-

fronted with a problem similar to the one we face. It

adopted “the rule that lay witnesses with an adequate

opportunity to observe and who have in fact observed may

state their opinion regarding the age of the defendant in a

criminal case when the fact that he was at the time in

question over a certain age is one of the essential elements

to be proved by the state. It is important to note that the

exact age of the defendant is not in issue, nor need the state

prove it. It must prove only that he was at the time of the

offense charged over 16.” 292 N.C. at 287, 233 S.E.2d at

916.

[3,4] We believe that the North Carolina Court's state-

ment of the law is a good one, and that it has been met here.

Although Yvonne Smith was not present at appellant's

birth, her testimony, if accepted, showed that she was “so

350 COM. v. ROBINSON

[264 Ps Superior CL. 345, (1979).j

situated as tc have positive knowledge and remembrance of

the date thereof.” In Commonwealth v. Walker, 234 Pa.

Super. 433, 340 A.2d 858 (1975), modified on other grounds,

468 Pa. 323, 362 A.2d 227 (1976), the Commonwealth success-

fully proved that the appellant was over 16 by showing that

he had told the prosecutrix that he was 21. We said there:

“Although such evidence was not conclusive, it along with

other facts and circumstances tended to prove that appellant

was over the age of 16.” 234 PaSuper. at 435, 340 A.2d at

959.4 Yvonnne Smith did on cross-examination qualify her

statement of appellant’s age as an “approximation”, but this

feature of her testimony was for the judge, sitting without a

jury, to appraise. He could choose to accept her direct

testimony that she first saw appellant on November 12 or

13, 1958, especially given her testimony, when she was

recalled as a witness by appellant, that appellant would be

19 on “November 9th of this year [1977]”, in other words,

that he had been born in 1958, and therefore was 18 on

January 1, 1977, when the incident in question here oc-

curred. Her addition of the words, “I guess”, to her state-

ment on recall did reduce her testimony to mere surmise;

3. There are other ways t> “ommonwealth might have proved appel-

lant’s age, but they were purhaps not practical in this instance.

Yvonne Smith testified that her mother was sick, she rnay therefore

have been unable to testify about appellant’s age. N.T. 12. The

record is not clear whether the Commonwealth tried to procure

appellant’s birth certificate, but failed.

4. It is not apparent whether the evidence in Walker was stronger of

weaker than in the present case. A person's staternent about his

date of birth is based on hearsay in that someone or some document

must have told him when he was born. If the statement is admitted

as an admission by a party—which seems to have been so in Walker

information in question was truthful, or at least had no motive not to

be; but there are bound to be cases where family members make

mistakes about vital information of others in the family, even when

they have gained their knowledge firsthand and not from a birth

COM. v. ROBINSON 351

[264 PaSuperior CL. 345, (1979).]

again, it was for the judge to appraise the extent of this

qualification.’

Appellant’s argument that Section 3102 is unconstitutional

breaks down into several parts. First, appellant argues that

because Section 3102 prohibits him from cl-iming that he

reasonably believed that the victim was 14 years or older, it

results in the imposition of strict liability and should there-

fore be declared invalid under the Pennsylvania Constitution

by virtue of Commonwealth v. Koczwara, 397 Pa. 575, 155

A.2d 825 (1959), cert. denied 363 U.S. 848, 80 S.Ct. 1624, 4

L.Ed.2d 1731 (1960). Second, appellant argues that federal

constitutional principles require that the section be declared

invalid. Finally, appellant argues that the section is invalid

because it conflicts with several other provisions of the

Crimes Code.

[5,6] We find no constitutional invalidity. _Common-

wealth v. Koczwara, supra, is distinguishable. There, the

Supreme Court held that a barowner could not be impris-

oned where he was vicariously liable for an employee's

service of liquor to minors. 397 Pa. at 586, 155 A.2d at 838.

Appellant is not being held liable for anyone else’s actions.

Appellant has cited no case that demonstrates a federal

constitutional claim. The Court of Appeals for the First

Circuit has stated:

The Supreme Court has never held that an honest

mistake as to the age of the prosecutrix is a constitutional

defense to statutory rape, and nothing in the Court's

recent decisions clarifying the scope of procreative priva-

cy, suggests that a state may no longer place the risk of a

mistake as to the prosecutrix’s age on the person engaging

5. Appellant finds this case like Commonwealth v. Bennett, 224 Pa.

Super. 238, 303 A2d 220 (1973). There, we were confronted with a

witness whose testimony was “‘so contradictory on the essential

issues that any finding by the jury would be a mere guess . . .

when the testimony is so contradictory on the basic issues as to

make any verdict based thereon pure conjecture . . . the jury

should not be permitted to consider it.” 224 Pa Super. at 240, 303

A2d at 221 (citation omitted). This is not such a case.

352 COM. v. ROBINSON

[264 PaSuperior CL. 345, (1979)

in sexual intercourse with a partner who may be young

enough to fall within the protection of the statute. (cita-

tions omitted) Nelson v. Moriarty, 484 F.2d 1034, 1035-

1036 (1st Cir.1973).

Nor is appellant’s final argument persuasive. Appellant

argues that Section 3102 is in conflict with Sections 302,°

304,7 and 305° of the Crimes Code. These provisions deal

with general guidelines on culpability for the whole of the

Section 302 in pertinent part reads: “Minimum requirements of

culpability. —Except as provided in section 305 of this title (relating

to limitations on scope of culpability requiremen’s), a person is not

guilty of an offense unless he acted intentionally, knowingly, reck-

lessly or negligently, as the law may require, with respect to each

material element of the offense.”

Section 304 reads: “Ignorance or mistake as to a matter of fact, for

which there is reasonable explanation or excuse, is a defense if:

(1) the ignorance or mistake negatives the intent, knowledge, be-

lief, recklessness, or negligence required to establish a material

element of the offense; or

(2) the law provides that the state of mind established by such

ignorance or mistake constitutes a defense.”

Section 305 reads:

§ 305. Limitations on scope of culpability requirements

(a) When culpability requirements are inapplicable to summary

offenses and to offenses defined by other statutes.—The require-

ments of culpability prescribed by section 301 of this title (relating

to requirement of voluntary act) and section 302 of this title

(relating to general requirements of culpability) do not apply to:

(1) summary offenses, unless the requirement involved is includ-

ed in the definition of the offense or the court determines that its

application is consistent with effective enforcement of the law

defining the offense; or

(2) offenses defined by statutes other than this title, in so far as

a legislative purpose to impose absolute liability for such offenses

or with respect to any material element thereof plainly appears.

(b) Effect of absolute liability in reducing grade of offense to

summary offense.—Notwithstanding any other provision of exist-

ing law and unless a subsequent statute otherwise provides:

(1) when absolute liability is imposed with respect to any materi-

al element of an offense defined by a statute other than this title

and a conviction is based upon such liability, the offense consti-

tutes a summary offense; and

(2) although absolute liability is imposed by law with respect to

one or more of the material elements of an offense defined by 4

COM. v. ROBINSON 353

[264 PaSuperior CL. 345, (1979).

Crimes Code, while we are confronted with the task of

interpreting and applying a specific provision on sexual

offenses. The Supreme Court has said: “It is a familiar rule

that where there is a conflict between two provisions of a

statute, one of which is specific and the other merely gener-

al, the specific provisions thereof will control unless it is

clear that the legislature intended otherwise, or some other

canon of statutory construction compels a contrary conclu-

sion.” Wait’s Estate, 336 Pa. 151, 154, 7 A2d 329, 330

(1939). Likewise, the Statutory Construction Act provides:

Whenever a general provision in a statute shall be in

conflict with a special provision in the same or another

statute, the two shall be construed, if possible, so that

effect may be given to both. If the conflict between the

two provisions is irreconcilable, the special provisions shall

prevail and shall be construed as an exception to the

general provision unless the general provision shall be

enacted later and it shall be the manifest intention of the

General Assembly that such general provision shall pre-

vail.

1 Pa.C.S.A. § 1933 (Purdon’s Supp.1978~79).’ -

Section 3102, as amended in 1976, which was three years

after the sections on which appellant relies were enacted,

represents a.clear legislative desire that with respect to

certain sexual offenses, a defendant cannot prove his reason-

able belief regarding the victim’s age as a defense.

Judgment of sentence affirmed.

JACOBS, former President Judge, and HOFFMAN, J., did

not participate in the consideration or decision in this case.

statute other than this title, the culpable commission of the cffense

may be charged and proved, in which event negligence with re-

spect to such elements constituces sufficient culpability and the

classification of the offense and the sentence that may be imposed

therefor upon conviction are determined by section 106 of this title

(relating to classes of offenses) and Chapter 11 of this title (relating

to authorized disposition of offenders).

1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.

9. Appellant says that 1 PaCS.A. § 1933 (Purdon’s Supp.1978-79) is

only applicable where two statutes are in conflict. While this is true,

we think it gives guidance in the situation before us.

264 Pa Reports—12

e - z ° 3 P -

: so. :

COMMONWEALTH : COURT CF COSIMON Pleas

vs : JANUARY TERM, 1977

VINCENT ROBINSON : NO. 1068

There Ls so Sercs to any cf the reasons alleged for the eract of 42 motion.

antl thts court {s told ditferenti7, It Ls sot ‘a 4 position to reject tte rale of Concron-!

Tae court sitting without a jury tgmored any alleged improper actions of ths distics

attorney and a sicsile summary of the evidence was: dofende=t bad interscusve with a

consensng gizi under ‘te age of fourteer.

tha Cotmes Code (18 P.S. 2102) which provides that mistaxe as to age Ls xo defecse,

ls novel and somewhat persucsive as 2 soctologic=! argument agains: the acvisability

of ne stamte. Sowever, it does not convince this cour: thar the statucs is uncensa-'

tasicral.. COMMONWEALTS V. GRANT. 235 Pa. Super. Ct. I57, 364-265 (975) stares:

EALTS V. JOYCE , 516 Pa. 424 1924) which permits a vitzess to state his own age.

OPINVtrTon

Tits opinion is written after a denial of defanda=t's pest =ial sotisa,

There was amcsis evidence of the zgs of the complainins witess and

Defencant’s argument respecting the umconsctuccnalicy of Sec. 2102 of

"Ordizarily crimical t--ent cr guilty <cowiedss is an

essential clomen: of a crimical uMacse. Cocmenwes’’:

v. Junion, 170 Pe. 94, 32 A. GIT 4295); Comecovealts

¥. Weiss. 139 Pa. 247, 2A. 10 ASSL): Commonwealth

7. Mor=xis, 208 Da. Sumerior Ct. !£0, 220 A. 24 SU 2266);

Sommoswealth v. Fine. 166 Pa. Series CL. 109, 70 A. 24

677 1950). However, che legisiacre acy <edine 2 crime so

that proof of crimisal ‘con or guilty smowleds: is not recess-

ary. Corsmoaweaith v. Morckis, score: Commonwealcs v.

EXHIBIT "c" ~

Fine, sucra. ' [t is for the legislacure to determines

% devtene sexual intercourse and oot ‘5 statctor7 Tape should Se addressed to the

legislarure.

ee PT

| | VITA

a . A fidol A 3.

lepleg

PS [EL

whether the public injury, threatened in any particular

matter, (s such and so grect is to justify an cbsolute

and Indisc=imicating prehibition.' Commonwealth -.

Kocwars. 39T ~~ 575, $82, 155 A. 24 82S, $23 (1935),

Cert. seuisd. 265 J.S. $48 1965), sesties foom Commer

wealts 7. Weiss, sucrs at 251. LA. ac 10.

Tals argement along with the argent that mistake as to age is & defense

mE @ © ines Gamma «o-- . ques oe ot aoe

RECEIVED

DEFENDER ASSOCIATION OF PHILADELPHIA

BY: Benjamin Lerner, Defender, and

LEONARD SOSNOV, Assistant Defender

identification No. 00001

121 North Broad Street

Philadelphia, Pa. 19107

(215) 568-3190

Attorney for YINCENT ROBINSON

VINCENT ROBINSON, IN THE SUPREME COURT OF

Appellant PENNSYLVANIA - EASTERN

DISTRICT

vs. JANUARY TERM, 1979

COMMONWEALTH OF PENNSYLVANIA NO. 236

NOTICE OF APPEAL OF THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Vincent Robinson, the appellant above-

named, hereby appeals to the Supreme Court of the United States from the

final order of the Supreme Court of Pennsylvania, affirming the judgment

of sentence and conviction, entered herein on December 30, 1981 in Common-

wealth of Pennsylvania v. Robinson.

This appeal is taken pursuant to

EXHIB IT My

DEFENDER ASSOCIATION OF PHILADELPHIA

BY: Benjamin Lerner, Defender, and

LEONARD SOSNOV, Assistant Defender

identification No. 00001

121 North Broad Street

Philadelphia, Pa. 19107 Attorney for VINCENT ROBINSON

(215) 568-3190

VINCENT ROBINSON, IN THE COURT OF COMMON PLEAS

Appellant CRIMINAL TRIAL DIVISION

vs. JANUARY TERM, 1977

COMMONWEALTH OF PENNSYLVANIA NO. 1068

NOTICE OF APPEAL OF THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Vincent Robinson, the appellant above-

named, hereby appeals to the Supreme Court of the United States from the

final order of the Supreme Court of Pennsylvania, affirming the judgment

of sentence and conviction, entered herein on December 30, 1981 in Common

wealth of Pennsylvania v. Robinson.

This appeal is taken pursuant ZO 7 (2).

unsal For Appe-lant

FXHIBIT "E"

B1-Ga7y

RECEIVED

MAR 1 1982

NUMBER Orride OF THE CLénK

SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED STATFS

VINCENT ROBINSON,

APPELLANT

vs. : OCTOBER TFRM, 1982

COMMONWEALTH OF PENNSYLVANIA

MOTION FOR LEAVE TO PROCEED IN

FORMA PAUPERIS ON APPEAL

Appellant, Vincent Robinson, by his counsel, John W.

Packel, Defender Association of Philadelphia, moves pursuant

to Supreme Court Rule 46.1 to proceed in forma pauperis and

respectfully represents:

1. Appellant was arrested on January 3, 1977, and be-

cause he was an indigent without sufficient funds, present

counsel, Defender Association of Philadelphia was appointed

by the Common Pleas Court of Philadelphia to represent him.

2. Appointed counsel, Defender Association of Phila-

delphia, has represented appellant continuously in the

state courts of Pennsylvania since his arrest.

3. This appeal is being filed on behalf of appellant

to fulfill counsel's duty to give appellant, an indigent

defendant, complete and effective assistance of counsel.

WHEREFORE, appellant respectfully requests that he be

permitted to file the accompanying appeal in forma

pauperis.

Respectfully submitted,

. Assistant Defender

ief, Appeals Division

N LERNER, Defender

RECEIVED

MAR 1 1982

Orrve OF Tre CLERA

SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED “STATES ~~

NUMBER

VINCENT ROBINSON,

APPELLANT

vs. : OCTOBER TERM, 1982

COMMONWEALTH OF PENNSYLVANIA

AFFIDAVIT OF COUNSEL IN SUPPORT OF

MOTION TO PROCEED IN FORMA PAUPERIS

I, John W. Packel, being first duly sworn, depose and

say that I am counsel for appellant in the above-entitled

case and represent the following:

1. Counsel is employed by the Defender Association of

Philadelphia, a non-profit organization which provides re-

presentation for indigents accused of crimes in Pennsylvania

2. Appellant was determined to be indigent by the

Courts of Philadelphia and counsel was appointed, repre-

senting appellant at trial and in the Superior and Supreme

Courts of Pennsylvania.

3. Counsel believes that appellant is entitled to

redress.

4. Counse’ believes that appellant, because of his

poverty, is unable to pay the costs of this proceeding or

to give security therefor.

5. Counsel is submitting this affidavit on appellant's

behalf, because appellant is now a member of the armed forces

in Germany, and counsel, as of the present time, has not

been able to obtain a personal affidavit from appellant first

because of difficulties in determining his exact location, and

now because of delays involved in communicating with him.

6. Counsel will, as promptly as possible, obtain an

affidavit from appellant reflecting his present financial

situation and further supporting the request to proceed in

forma pauperis.

‘ PACKET

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APR 22 198?

NO. 81-6294 ALEXANDER L. STEVAS

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

VINCENT KOBINSON, Appellant

COMMONWEALTH OF PENNSYLVANIA,

Appellee

ON APPEAL FROM THE SUPREME COURT OF

PENNSYLVANIA (PENNSYLVANIA SUPREME

COURT NO. 236, JANUARY TERM, 1979)

MOTION OF APPELLEE TO AFFIRM

ERIC B. HENSON

Deputy District Attorney

(Counsel of Record)

STEVEN J. COOPERSTEIN

Assistant District Attorney

EDWARD G. RENDELL

District Attorney

Philadelphia County

1300 Chestnut St.

Phila., Pa. 19:97

(215) 875-6010

April 22, 1982

TABLE OF CONTENTS

Motion to Affirm

Question Presented

Statement of the Case

Argument

Conclusion

TABLE OF AUTHORITIES

Federal Cases

Flemming v. Nestor, 363 U.S. 603,

80 S. Ct. 1367, rehearing denied,

364 U.S. 854, 81 S. Ct. 29 (1960)

Lambert v. California, 355 U.S. 225,

78 S. Ct. 240 (1957)

Nelson v. Moriarty, 484 F.2d 1034

(lst Cir. 1973)

Shevlin-Carpenter Co. v. Minnesota,

218 U.S. 57, 30 S. Ct. 663 (1910)

United States v. Balint, 258 U.S.

250, 42 S. Ct. 301 (1922)

Wolff v. McDonnell, 418 U.S. 539,

94 S. Ct. 2963 (1974)

State Cases

Commonwealth v. Koczwara, 397 Pa.

575, 155 A.2d 825 (1959), cert.

denied, 363 U.S. 848, 80 S. Ct.

1960)

Commonwealth v. Moore, 359 Mass.

269 N.E.2d 636 (1971)

509,

Commonwealth v. Robinson, 438 A.2d

964 (Pa. 1981)

PAGE

6,10,

11,12

PAGE

Commonwealth v. Robinson, 264 Pa.

Superior Ct. 345, 399 A.2d 1084

(1979) 5,6

Commonwealth v. Sutley, 474 Pa. 256,

378 A.2d 780 (1977) 8

Commonwealth v. Walker, 468 Pa. 323,

362 A.2d 227 (1976) ll

Goodrow v. Perrin, 119 N.H. 483,

403 A.2d 864 (1979) ll

People v. Dozier, 72 N.Y. App. Div.

2d 478, 424 N.Y.S.2d 1010 (lst

Dept.), aff'd, 52 N.Y¥.2d 781, 436

N.Y.S.2Zd 620 (N.Y. 1980) 1l

State v. Moore, 105 N.J. Super, 567,

253 A.2d 579, certif. denied, 54

N.J. 502, 257 A.2d 103 (1969) ll

Constitutional Provisions

United States Constitution, amend-

ment fourteen 6,7

Pennsylvania Constitution, article

I, §9 6

Statutes and Rules

28 U.S.C. §1257(2) 6

iii

Rule 16, Rules of the Supreme Court

of the United States

18 Pa.C.S.A.

42 Pa.C.S.A.

Other Sources

§11.01

§1103

§3102

§3122

§724

Model Penal Code, Proposed Official

Draft, §213.l, p.142

Model Penal Code, Proposed Official

Draft, §213.6, pp.149-150

Model Penal Code, Tentative Draft

No. 4, §2.05 (comment, p.140)

PAGE

passim

2-3

MOTION TO AFFIRM

Appellee Commonwealth of Pennsylvania,

pursuant to Rule 16 of the Rules of the

Supreme Court of the United States, moves

that the order of the Supreme Court of

Pennsylvania, affirming appellant's judg-

ment of sentence, be affirmed on the

ground that the question is so insubstan-

tial as not to warrant further argument.

QUESTION PRESENTED

Is the enactment of 18 Pa.C.S.A. §3102,

barring the defense of mistake of the vic-

tim's age in a statutory rape prosecution,

a valid exercise of legislative judgment?

STATEMENT OF THE CASE

Defendant Vincent Robinson appeals from

the December 30, 1981, order of the Supreme

Court of Pennsylvania, affirming the judgment

of sentence imposed upon him for the crime of

statutory rape. The factual and procedural

history of this appeal is as follows:

Defendant was arrested on January 3,

1977, on charges arising out of an incident

two days earlier. Following a preliminary

hearing, the Commonwealth of Pennsylvania,

through the District Attorney of Philadelphia

County, returned against defendant Bill of

Information No. 1068, January Session, 1977,

charging statutory rape.* Defendant waived

lohe crime of statutory rape is defined as

follows:

A person who is 18 years of age or

Older commits statutory rape, a

(Footnote 1 continued on next page.)

his right to trial by jury, and was tried by

the Honorable Charles A. Lord, on April 6,

1977.

The evidence presented by the Common-

wealth at trial established that on January

1, 1977, Harriet Saunders, along with a girl-

friend, went to a poolhall in Philadelphia,

where she met defendant and two of his

friends. Harriet was thirteen years old at

the time, her date of birth being July 23,

1963. She told defendant, however, that she

was sixteen years old (N.T. 4/6/66, 23-25).

(Footnote 1 continued from previous page.)

felony of the second degree, when

he engages in sexual intercourse

with another person not his spouse

who is less than 14 years of age.

18 Pa.C.S.A. §3122. A felony of the second

degree is punishable by a term of imprison-

ment for not more than ten years, 18 Pa.

C.S.A. §1103(2), and by a fine of not more

than $25,000, 18 Pa.C.S.A. §1101(1).

Defendant, who was eighteen years of age,

invited Harriet to his house, and there gave

her wine and marijuana. Harriet Saunders

then consented to have sexual intercourse

with defendant (N.T. 4/6/77, 16-21). After

leaving defendant's house, Harriet went to

her girlfriend's home and then to Thomas Jef-

ferson University Hospital, where she was

examined and released (N.T. 4/6/77, 23).

Defendant demurred to this evidence,

arguing that he had reasonably believed that

Harriet Saunders was sixteen, and thus should

not be held criminally liable. The trial

court, citing the Pennsylvania statute which

bars from statutory rape prosecutions a

defense of mistake as to the victim's age,

2rhat statute provides:

Whenever in this chapter the crim-

inality of conduct depends on a

(Footnote 2 continued on next page.)

denied the demurrer and subsequently con-

victed defendant of statutory rape. Follow-

ing the denial of motions in arrest of

judgment and for a new trial, Judge Lord

sentenced defendant to two years probation.

Defendant appealed the judgment of sen-

tence to the Pennsylvania Superior Court,

which unanimously affirmed. Commonwealth

v. Vincent Robinson, 264 Pa. Superior Ct.

345, 399 A.2d 1084 (1979) (opinion by Spaeth,

(Footnote 2 continued from previous page.)

child being below the age of 14

years, it is no defense that the

actor did not know the age of

the child or reasonably believed

the child to be the age of 14

years or older. When criminality

depends on the child's being

below a critical age other than

14 years, it is a defense for

the actor to prove by a prepon-

derance of the evidence that he

reasonably believed the child to

be above the critical age.

18 Pa.C.S.A. §3102.

J.). Defendant sought, and was granted,

permission to appeal to the Pennsylvania

Supreme Court, pursuant to 42 Pa.C.S.A.

§724. After the filing of briefs and oral

argument, the judgment of sentence was again

affirmed, by a majority of four to three.

Commonwealth v. Vincent Robinson, 438 A.2d

964 (Pa. 1981) (majority opinion by Nix, J.).

This appeal, pursuant to 28 U.S.C.

§1257(2), followed. Defendant renews his

claim, which was rejected by the trial court

and both Pennsylvania appellate courts, that

18 Pa.C.S.A. §3102, removing the defense of

mistake of fact, denied him due process of

law in violation of the fourteenth amendment

to the United States Constitution.

3the Pennsylvania courts likewise rejected

defendant's claim that the statute violates

article I, §9 of the Pennsylvania Constitu-

tion. Commonwealth v. Vincent Robinson,

supra, 438 A.2d at 966-67; Commonwealth v.

Vincent Robinson, supra, 264 Pa. Superior

Ct. at 351-52, 399 A.2d at 1087.

ARGUMENT

The decision of the Pennsylvania Supreme

Court is plainly correct. Defendant contends

that 18 Pa.C.S.A. §3102, which provides that

it is no defense to a charge of statutory rape

that the defendant reasonably believed the

victim to be fourteen years of age or older,

denied him due process of law by allowing a

conviction for statutory rape without a show-

ing of mens rea in violation of the fourteenth

amendment to the United States Constitution.

It is clear, however, that the statute at

issue is a proper exercise by the legislature

of its police power and does not offend due

process.

Legislative enactments are presumed to

be constitutionally valid. Flemming v. Nes-

tor, 363 U.S. 603, 80 S. Ct. 1367, rehearing

denied, 364 U.S. 854, 81 S. Ct. 29 (1960);

Commonwealth v. Sutley, 474 Pa. 256, 260-61,

378 A.2d 780, 782 (1977). Further, the touch-

stone 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, 2976 (1974). Here, to

protect the health and welfare of children

thirteen years of age and younger, the Penn-

sylvania legislature has mandated that one

eighteen years of age or older who engages in

sexual intercourse with such a young child

does so at his own peril. It has chosen to

afford that protection to young children by

punishing this conduct regardless of the

actor's belief as to the child's age. This

legislation is not an arbitrary law and is

rationally related to a legitimate state

interest. Similar statutory rape provisions

are common and of ancient origin.

It has long been held that the state may

provide that a person who does a particular

act shall do so at his peril, and will not

be heard to plead ignorance. United States

.v. Balint, 258 U.S. 250, 252, 42 S. Ct. 301,

302 (1922); Shevlin-Carpenter Co. v. Minne-

sota, 218 U.S. 57, 69-70, 30 S. Ct. 663,

666-67 (1910). Although due process imposes

some limitation on the absence of a knowledge

requirement from the definition of a criminal

offense, Lambert v. California, 355 U.S. 225,

78 S. Ct. 240 (1957), the instant statutory

provision, unlike that struck down in Lambert,

does not contain a trap for the unwary. The

due process violation in Lambert was founded

in an absence of notice; California's uncon-

stitutional criminal registration ordinance

punished the failure to register although no

notice to register was given any person subject

to the ordinance.” Here, by contrast, the

statute requires a voluntary act, which car-

ries with it notice to conform one's actions

to the law.

Indeed, the only federal court which has

considered the due process claim raised here

found no constitutional infirmity in denying

to a statutory rape defendant the defense of

mistake of age. Nelson v. Moriarty, 484 F.2d

1034 (lst Cir. 1973). Every state court

4the Pennsylvania Supreme Court has found

a similar due process limitation in the def-

inition of a criminal offense. In Common-

wealth v. Koczwara, 397 Pa. 575, 155 A.2d

825 (1959), cert. denied, 363 U.S. 848, 80

S. Ct. 1624 (1960), the Court held that a

bar owner could not be imprisoned where he

was held vicariously liable for the act of

an employee. As the Pennsylvania Supreme

Court noted in its opinion here, the due

process limits imposed by Koczwara are sig-

nificantly different from the due process

limits urged by defendant. Commonwealth v.

Vincent Robinson, supra, 438 A.2d at 967

n.3.

which has considered a similar claim has

found no violation of due process. Common-

wealth v. Moore, 359 Mass. 509, 269 N.E.2d

636 (1971); Goodrow v. Perrin, 119 N.H. 483,

403 A.2d 864 (1979); State v. Moore, 105 N.J.

Super. 567, 253 A.2d 579, certif. denied, 54

N.J. 502, 257 A.2d 103 (1969); People v.

Dozier, 72 N.Y. App. Div.2d 478, 424 N.Y.S.2d

1010 (lst Dept.), aff'd, 52 N.¥.2d 781, 436

N.Y¥.S.2d 620 (1980).

These courts, like the Pennsylvania

Supreme Court, correctly rejected these due

process challenges. The Pennsylvania Supreme

Court noted in its opinion that the purpose

behind the statutory rape law is "to protect

those who are too unsophisticated to protect

themselves." Commonwealth v. Vincent Robinson,

supra, 438 A.2d at 966; see Commonwealth v.

Walker, 468 Pa. 323, 335, 362 A.2d 227, 232

(1976). The state has reasonably determined

that to allow the defense of mistake of age

in statutory rape prosecutions would defeat

the very purpose of the statute. this judg-

ment is one properly made by the legislature.

The determination to make criminal an act of

sexual intercourse with one under fourteen

>Indeed, the Model Penal Code, on which the

Pennsylvania Crimes Code is based, see Common-

wealth v. Vincent Robinson, supra, 438 A.2d

at 967 n.5, supports the need for §3102. It

bars the defense of mistake of age in statu-

tory rape prosecutions where the victim is

below the age of ten, Model Penal Code, Pro-

posed Official Draft, §§213.1 and 213.6, pp.

142 and 149-50, although it eschews the impo-

sition of absolute liability for other crimes.

Model Penal Code, Tentative Draft No. 4,

§2.05, Comment, p. 140. The Pennsylvania

Supreme Court declined to substitute its judg-

ment for that of the Pennsylvania legislature

which determined that fourteen is a more appro-

priate age limitation than ten. This public

policy, to set the age at fourteen rather than

ten, certainly does not violate due process.

See Commonwealth v. Vincent Robinson, supra,

438 A.2d at 967 n.5.

regardless of the actor's belief as to the

victim's age does not violate due process.

Given the unquestionably proper purpose

of 18 Pa.C.S.A. §3102, and the unanimous

rejection of due process challenges to simi-

lar statutes, it is clear that the decision

of the Supreme Court of Pennsylvania, uphold-

ing the constitutionality of the statute, is

correct. Therefore, the question presented

in the instant appeal is so insubstantial as

not to warrant further argument.

CONCLUSION

For the reasons stated herein, this

appeal should be affirmed.

Respectfully submitted,

. a

y Le Le) oe Wie

ERIC B. HENSON

Deputy District Attorney

(Counsel of Record)

STEVEN J. COOPERSTEIN

Assistant District Attorney

EDWARD G. RENDELL

District Attorney

Philadelphia County

IN THE SUPREME COURT

OF THE UNITED STATES

VINCENT ROBINSON,

Appellant

OCTOBER TERM,

1982

Vv.

. COMMONWEALTH OF PENNSYL-

VANIA, Appellee

NO. 81-6294

CERTIFICATION OF SERVICE

I, ERIC B. HENSON, Counsel for Appellee,

hereby certify that I have served three (3)

copies of this Motion of Appellee to Affirm

by hand delivery upon counsel for appellant,

John W. Packel, Esquire, Defender Association

of Philadelphia, 121 North Broad Street,

Philadelphia, Pennsylvania, 19107, on April

22, 1982. ) ;

7 Ble

ERIC B. HENSON

Sworn to and subscribed

before me this 22nd day

of April, 1982, A.D.

th Lew

NOTARY PUBLIC

My Commission Expires:

CANCL 1 EDEN

Notary “orc 1, Phila Co

Ay Commission tapes Maren 11, 1985

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.