Dissenting Opinion by
Spaeth, J.:I concur in the opinion of Judge Hoffman. However, I believe it should be expressly stated that in reaching this result I do not wish to imply that when dealing with a victim who is a young child or who has no greater mental and emotional capacity than a young child the Commonwealth must always prove the actual date of the crime. The sweeping language of Commonwealth v. Levy, 146 Pa. Superior Ct. 564, 23 A. 2d 97 (1941), should be considered in the context of that case. There the testimony of the eleven year old victim (a boy) was that the crime occurred on September 1 or 2, but the victim’s sister testified that the first time the defendant met the victim had been on her birthday, September 6. Thus there was a clear logical inconsistency in the prosecutor’s evidence as to when the crime occurred. Also an eleven year old boy might be regarded as more likely to remember the time of the incident than the victim in the present case, who has been shown to have the intellectual capacity of a first- or second-grade student and the emotional capacity of an even younger child.
*142In considering cases such, as Levy and the present case no fixed rule should be applied. Rather, the fact that the victim is emotionally young and confused should be weighed against the right of the defendant to know for what period of time he may be called upon to account for his behavior. The fact that the victim cannot set a date for the crime should not necessarily be fatal to the Commonwealth’s case, thus making the assailant virtually immune from prosecution. In the present case, this balance tips against the Commonwealth, for it does not appear why the Commonwealth could not have fixed the time of the incident by evidence other than by the testimony of the victim.