Commonwealth v. Collin

Opinion by

Price, J.,

Bradley Stan Collin, appellant, was convicted of fornication and corrupting the morals of a minor, following a jury trial on October 18, 1973. He was acquitted of statutory rape. On December 14, 1973, appellant was sentenced to pay a fine of $100.00 on the fornication conviction, and to 114-3 years in the State Correctional Institution at Rockview for corrupting the morals of a minor. This appeal follows the denial of appellant’s motions for new trial and in arrest of judgment.

The facts reveal that a fourteen-year-old girl was reported missing on May 22, 23 and 24, 1973. On May 25, 1973, the girl was located and placed in the juvenile detention facilities of the Warren County jail. Four days later, she made a voluntary statement to a deputy sheriff, indicating that she had stayed with appellant during the period of May 22-24, 1973, and that she had engaged in sexual intercourse with him during that time. On the basis of this information, appellant was indicted on charges of statutory rape1 and corrupting the morals of a minor.2

At trial, appellant admitted the act of intercourse, but testified that he had been unaware of the girl’s exact age. He also attempted to show that the girl had had intercourse with others before May 22, 1973. However, the trial judge refused to allow cross-examination of the victim to substantiate the prior acts of intercourse suggested by appellant.

*303Appellant alleges that the refusal constitutes reversible error in that it denied him a fair trial by taking away a statutory defense3 which he would have been able to pursue had he been charged with corrupting a minor under the new Crimes Code.4 Appellant cites no authority to support his belief that he was subjected to unjust treatment because the lower court refused to apply the 1972 Crimes Code provisions to a violation of the 1939 Penal Code.

To determine whether the lower court was correct in its refusal, we look first to the Statutory Construction Act, Act of May 28, 1937, P.L. 1019, art. IV, §56 (46 P.S. §556), which provides: “No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature.” The instant statute contains no indication that the defense should be applied retroactively.

Section 56 of the Statutory Construction Act has been recognized in several appellate cases. The case most similar to the instant appeal is Commonwealth v. Griffin, 189 Pa. Superior Ct. 59, 149 A.2d 656, cert. denied, 365 U.S. 838 (1959). Griffin involved the admission into evidence of tape recorded telephone conversations. Some time after the trial, but before sentence, the interception of telephone communications without the consent of the parties was made illegal. Griffin contended that the court had no power to sentence him because the law had changed.

The Griffin court did not agree with the appellant’s contentions. Instead, the court noted: “The invariable rule is that a statute operates prospectively unless the *304act specifically or otherwise, indicates a ‘clear and manifest intent of the legislature’ to give it a retroactive effect. Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867; Com. ex rel. Greenawalt v. Greenawalt, 347 Pa. 510, 32 A.2d 757; Painter v. B. & O. R.R. Co., 339 Pa. 271, 13 A.2d 396. In Taylor v. Mitchell, 57 Pa. 209, our Supreme Court, in referring to this established rule, said: ‘There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the legislature. . . .’ ” 189 Pa. Superior Ct. at 62, 149 A.2d at 658. Cf. Glancey v. Casey, 447 Pa. 77, 288 A.2d 812 (1972); Regan v. Davis, 290 Pa. 167, 138 A. 751 (1927).

Moreover, the court stated: “The evidence secured by wire tapping was relevant and was admissible when received in evidence during the trial of these cases and at the time in May 1957 when the defendant was convicted. An Act which fixes a future day as to its effective date stamps its prospective character upon its face. Dewart v. Purdy, 29 Pa. 113. Cf. Shultze v. Diehl, 2 P.&W. 273.” [Emphasis added] 189 Pa. Superior Ct. at 62, 149 A.2d at 658.

In the instant case, the lower court correctly refused the cross-examination requested by appellant. Questions related to prior specific acts of intercourse are not relevant to a charge of statutory rape under the 1939 Penal Code, and proof that the victim is not chaste must be established by her general reputation in the community. Commonwealth v. Sutton, 171 Pa. Superior Ct. 105, 90 A.2d 264 (1952); Commonwealth v. San Juan, 129 Pa. Superior Ct. 179, 195 A. 433 (1937).5

*305Specific acts of intercourse are likewise irrelevant to the charge of corrupting the morals of a minor. The Act of 1939, at §532 (18 P.S. §4532), states that anyone who “aids, abets, entices, or encourages any child in the commission of any crime” is guilty of corrupting. Having admitted the illegal act of intercourse with the complainant, appellant cannot now contend that he does not fall within the language of §4532.

In discussing the import of §4532, this court has stated: “... The section of the Code forbids any act by an adult which tends to or actually does corrupt the morals of a child. The terms of the proscription are clear; no adult may with impunity engage in conduct with a minor which has the effect of corrupting the morals of the child; and it could not be argued persuasively that the acts charged here did not fall within the category of conduct which the law forbids. Whether the child consented to, or even solicited the advances which affected her morals, is of no moment.... [A] n enlightened legislature of this Commonwealth has recognized that the inexperience of youth prevent [sic] intelligent judgment in matters of morality. It has therefore removed children from the area of responsibility for their own fault within the purview of the above section of The Penal Code and has placed the guardianship of their morality upon adults. Thus, any depraved adult who participates in the corruption of children must do so at his own risk. . . .” Commonwealth v. Blauvelt, 186 Pa. Superior Ct. 66, 73, 140 A.2d 463, 467 (1958).

Judgment affirmed.

. Act of June 24, 1939, P.L. 872, §721, as amended (18 P.S. §4721), repealed Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa. C.S. §3122).

. Act of June 24, 1939, P.L. 872, §532, as amended (18 P.S. §4532), repealed Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa. C.S. §3125).

. Act of December 6, 1972, P.L. 1482, No. 334, §1 (18 Pa. C.S. §3104): “It is a defense to prosecution under section 3125 of this title (relating to corruption of minors) and section 3126(5) of this title (relating to indecent assault) for the actor to prove by a preponderance of the evidence that the alleged victim had, prior to the time of the offense charged, engaged promiscuously in sexual relations with others.”

. Act of December 6, 1972, P.L. 1482, No. 334, §1 (18 Pa. C.S. §3125).

. Section 3104 of the Act of December 6, 1972, P.L. 1482, No. 334, §1, does not permit proof of promiscuous conduct as a defense to statutory rape. Therefore, such testimony would have been inadmissible even had appellant been charged with statutory rape under the new Crimes Code.