Commonwealth Ex Rel. Atkins v. Singleton

SPAETH, Judge:

Appellant was convicted of neglecting to support his minor child in violation of section 4323 of the Crimes Code and ordered to pay $22.50 per week for support. He argues that the action was barred by the statute of limitations.¹

Section 4323 provides:

(a) Offense defined.-A person is guilty of a misdemeanor of the third degree if he, being a parent, willfully neglects or refuses to contribute reasonably to the support and maintenance of a child born out of lawful wedlock, whether within or without this Commonwealth.

(b) Limitation of action.-All prosecutions under this section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.

Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 4323.

The criminal complaint was filed on May 19, 1977, and alleged that appellant’s child, Karanja, had been born on May 31, 1972, and that appellant had not paid support since April 1973. Appellant denied paternity, and also moved to quash the complaint on the ground that the action was barred by the statute of limitations. On July 7, 1977, the complaint was amended to allege that appellant’s last contribution had been made not in April 1973 but in the summer of 1975.

Conduct that “negatives a defense under the statute of limitations” is an element of the offense, 18 Pa.C.S. § 103, and the Commonwealth bears the burden of proving that the prosecution is within the statute. Commonwealth v. Kuhn, 200 Pa.Super. 649, 190 A.2d 337 (1963); Commonwealth v. Bates, 1 Pa.Super. 223 (1896). Therefore, here the Commonwealth bore the burden of proving that appellant had made some contribution to Karanja’s support within two years of the complaint.

The only evidence of such contribution was the following testimony by Karanja’s mother:

Q. When was the last time that he did anything for Karanja?

A. The last time was the meeting at Woolworth’s when he bought lunch for us when we saw him.

Q. And when was that?

A. That was around the summer of 1975.

Q. Was that-how did that meeting come about?

A. Well, I was at the bank, in the drive-in section, with Karanja in the car, and he walked up to us and said hi, how about some coffee. And so I said okay. And we selected Woolworth’s because it was close by.

N.T. at 28.

The Commonwealth is of course entitled to have this evidence examined in the light most favorable to it. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978). However, no matter how favorable the light, the evidence remains quite unimpressive. The mother offered almost no detail. What does “lunch for us” mean? Did appellant buy food for both the mother and Karanja? Did he buy lunch for each of them, or did he only buy lunch for the mother, which she then shared with Karanja? Also, the mother offered almost no explanation. How did it happen that someone who asked, “How about some coffee?” then “bought lunch?” Finally, it is impossible to avoid regarding the mother’s testimony with suspicion. It was only after her first complaint was attacked as barred by the statute of limitations that the mother conceived of the 1975 “lunch” as constituting a contribution to support, which at least suggests that before that time she had not considered it a contribution to support. However, for purposes of disposition, we shall put aside all reservations regarding the quality or weight of the evidence, and shall assume that it was sufficient to support a finding that appellant bought Karanja some food.² On this assumption, the question becomes whether such a single contribution may constitute a contribution to support within the meaning of section 4323(b).

Appellant has cited cases from other jurisdictions holding that for a contribution to support to toll the statute of limitations, there must be evidence that the alleged father engaged in a course of conduct or a pattern of payments “furnished under circumstances as warrant a clear inference that the putative father recognizes the child as his own and indicates his willingness to assume his statutory duty of support.” Wong v. Beckford, 28 A.D.2d 137, 138, 283 N.Y. S.2d 491, 492 (1967). See Lindsay v. District of Columbia ex rel. Lindsay, 298 A.2d 211 (D.C.App. 1972); Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964); Mendes v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766 (1958). Relying on these cases, appellant argues that evidence of only a single payment, such as the purchase here of lunch for the mother and child, as opposed to evidence of a pattern of payments, is insufficient.

This argument cannot be accepted. The cases relied upon by appellant involved the interpretation of statutes that differ from section 4323(b). Section 4323(b), as opposed to some statutes in other jurisdictions, provides that “a prosecution may be brought at any time within two years of any such contribution.” The reference to “any . . . contribution” would make no sense if evidence of a “pattern of contributions” were required. Moreover, cases interpreting section 4323(b) and its statutory predecessor have found evidence of a single contribution sufficient. In Commonwealth v. Teeter, 163 Pa.Super. 211, 60 A.2d 416 (1948), this court held the action timely when brought within two years of the defendant’s mailing a payment of ten dollars to the mother. In Commonwealth v. Boyer, 168 Pa.Super. 16, 76 A.2d 230 (1950), we held the action timely where the evidence was that within two years of the prosecution the defendant had made gifts to the child, and had called at the hospital where the child was confined with illness and had given the mother twenty-five dollars toward the expenses incident to the illness. Most recently, in Commonwealth v. Young, 275 Pa.Super. 588, 419 A.2d 57 (1980), we held a single payment of twenty dollars to have been a contribution to support.

However, while we reject appellant’s argument concerning the necessity of evidence of a pattern of payments, we are persuaded that he is correct in maintaining that where only a single payment or contribution has been made, the evidence must show that it was made in circumstances from which it may reasonably be inferred that in making it, the father was recognizing the child as his own.

Section 4323(b) provides but two exceptions to the limitation period of two years from the birth of the child. These are either where the alleged father has “voluntarily contributed to the support of the child,” or where he has “acknowledged in writing his paternity.” Thus, voluntary contribution and acknowledgment of paternity are assimilated to each other. The plain implication is that the legislature regarded the one as essentially the same as the other, and thus provided that proof of either would have the same effect of extending the period of limitations. It follows that if the evidence of the circumstances surrounding a voluntary contribution is insufficient to support a finding that the contribution amounted to an acknowledgment of paternity, it may not be held that the contribution extended the period of limitations. Thus, in Commonwealth v. Young, supra, the evidence of the circumstances surrounding the voluntary contribution of twenty dollars was held to have extended the period of limitations because it was sufficient to support a finding that the contribution amounted to an acknowledgment of paternity; the only reason the mother asked for the money, and the only reason the father paid it, was for the support of the child. See Commonwealth v. Teeter, supra (letters of father indicated that payments were for child support). Similarly, in Commonwealth v. Boyer, supra, the evidence of the circumstances of the defendant’s visit to the hospital and his payment there to the mother was sufficient to support the finding that the defendant was acting in compliance with a parental obligation and therefore was acknowledging paternity.

In the present case, it cannot be maintained that the evidence of the circumstances surrounding appellant’s purchase of lunch for the mother and Karanja was sufficient to support a finding that in purchasing the lunch, appellant was acknowledging paternity. The mother did not ask him to purchase the lunch. Nothing she said suggested that she thought of the purchase as a contribution to support. So far as anything appellant said is concerned, it appears that he thought of the purchase as a social courtesy incident to an unplanned encounter. No evidence suggests that the mother accepted the lunch for herself and Karanja as anything more than that.

In making these observations, we have not overlooked the evidence that appellant had some years before made some contributions to Karanja’s support.³ That evidence, however, does not bear upon the nature of the occasion when appellant bought the mother and Karanja lunch. It clearly appears that by 1973 appellant had stopped all contributions to support. There is no basis for an inference that his purchase of lunch in 1975 was either regarded by the mother or was intended by him as a renewal of contribution.⁴

The order of the lower court is reversed and appellant is discharged.

BROSKY, J., files a dissenting opinion.

1 . Appellant also argues that the lower court erred in considering evidence concerning a statistical probability of his guilt, and in ordering him to pay $22.50 per week for support. Given our decision on the statute of limitations issue, we shall not reach these arguments.

2 . We do not discuss the evidence so forcefully and extensively discussed in the dissenting opinion, for the dispositive issue is not whether the evidence was sufficient to prove paternity but whether it was sufficient to prove beyond a reasonable doubt that the statute of limitations was tolled.

3 . See footnote 2, supra.

4 . We note the suggestion' by the dissent that application of the statute of limitations here may represent “an unconstitutional deprivation of due process rights.” Dissenting opinion at p. 1354. We do not discuss this possibility, for the issue has not been raised by the Commonwealth. See Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).