Commonwealth v. Durham

389 A.2d 108, 255 Pa. Super. 539, 1978 Pa. Super. LEXIS 3045

• Court: Superior Court of Pennsylvania
• Decided: July 12, 1978
• Docket: 2366
• Status: Published

Opinions

JACOBS, President Judge:

This is an appeal from an adjudication of delinquency based upon charges of aggravated assault¹ and possession of an instrument of crime.² Appellant, who was nine years old at the time of the incident, contends that the lower court erred in refusing to take cognizance of the presumption of incapacity which arises when a child between the ages of seven and fourteen is alleged to have committed a criminal act. We agree and therefore reverse.

The testimony below, to which both parties stipulated, was that as the complainant, Delores Davis, was walking by, appellant kicked dirt at her. A fight ensued and appellant, saying she was going to get her mother, ran into her house and procured a knife. The fray resumed and appellant stabbed the complainant in the arm and back.

The lower court denied defense counsel’s motion for a directed verdict and adjudicated appellant a delinquent. Appellant’s sole contention on appeal is that a directed verdict should have been granted since the Commonwealth failed to present any evidence to refute the presumption that appellant lacked the requisite criminal capacity. The lower court apparently based its ruling on the belief that the Juvenile Act, Act of December 6, 1972, P.L. 1464, No. 333, § 1 et seq., 11 P.S. § 50-101 et seq. (Supp.1976-77), had preempted the common law presumption of incapacity which has long existed in Pennsylvania. See, e. g., Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959); Nagle v. Allegheny Valley Railroad Co., 88 Pa. 35 (1879). The judge’s opinion attempts to bolster this conclusion by emphasizing that the Juvenile Court acts as parens patriae for the child, rather than as a retributive agent of the state.

This rationale was first rejected by the Supreme Court of the United States in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). It is now clear that the juvenile, during the adjudicatory stages of a delinquency proceeding, is entitled to many of the due process safeguards accorded adult criminal defendants.³ Id. Chief among these is the requirement that the Commonwealth prove every element of the crime beyond a reasonable doubt. In re Terry, 438 Pa. 339, 347, 265 A.2d 350, 354 n. 14 (1970), quoting In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975).

The common law presumption of incapacity, in the case of a child between the ages of seven and fourteen, is still very much alive in this jurisdiction. Nothing in the Juvenile Act indicates a contrary legislative intent.⁴ In the instant case the Commonwealth made no attempt to rebut the presumption by introducing evidence of criminal capacity. In fact, the only evidence available on this issue was a neuro-psychological report in the file indicating that appellant suffered from “borderline retardation.” Counsel for the prosecution made only a cursory argument on the issue of capacity, alluding to the fact that appellant said she was going into the house to get her mother, but instead got a knife, as an indication of an awareness of guilt. This implication, which was seized upon by the trial judge, is far from sufficient to rebut the presumption and satisfy the prosecution’s burden of proving all elements of the crimes charged beyond a reasonable doubt. The motion for a directed verdict in favor of appellant was, therefore, improperly denied.

Reversed.

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.

1 . 18 Pa.C.S.A. § 2702.

2 . 18 Pa.C.S.A. § 907.

3 . A notable exception is that the juvenile defendant is not entitled to a jury trial. In re Terry, 438 Pa. 339, 265 A.2d 350 (1970).

4 . The lower court’s citation of various sections of the Juvenile Act for the proposition that juveniles are to be afforded special protections reinforces our conclusion rather than indicating any departure from the common law presumption.