J-A08007-15

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2015 PA Super 144

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DERECK MICHAEL MARTZ,

Appellee No. 1502 MDA 2014

Appeal from the Order Entered August 11, 2014

In the Court of Common Pleas of Montour County

Criminal Division at No(s): CP-47-CR-0000029-2014

BEFORE: SHOGAN, WECHT, and STRASSBURGER,*JJ.

OPINION BY SHOGAN, J.: FILED JUNE 24, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the 

order1entered on August 11, 2014, applying the infancy defense and 

dismissing those counts of the amended information (“Information”) that 

encompass acts occurring prior to April 2, 1999, when Appellee, Dereck 

 

*

 Retired Senior Judge assigned to the Superior Court.

1

 While the appealed order is interlocutory, the Commonwealth, in its notice 

of appeal, certified that the trial court’s August 11, 2014 order substantially 

handicapped the prosecution of this case. See Pa.R.A.P. 311(d) (“In a 

criminal case, . . . the Commonwealth may take an appeal as of right from 

an order that does not end the entire case where the Commonwealth 

certifies in the notice of appeal that the order will terminate or substantially 

handicap the prosecution.”); see also Commonwealth v. Brister, 16 A.3d 

530, 534 (Pa. Super. 2011) (“The Commonwealth’s good faith certification, 

alone, provides an absolute right to appeal . . . .”). Thus, the instant appeal 

is properly before us.
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Michael Martz, reached fourteen years of age. For the reasons that follow, 

we reverse and remand.

Appellee was born on April 2, 1985. M.S. (“the victim”) was born in 

April of 1990. On September 23, 2013, M.S., who was then twenty-three 

years old, reported to Danville Police that he had been sexually abused as a 

child on an ongoing basis by Appellee, who was then twenty-eight years old. 

N.T., 7/30/14, at 3–6, 25. On January 9, 2014, Appellee was charged in 

criminal court2 with twelve counts of each of the following crimes: rape of a 

child, involuntary deviate sexual intercourse with a child, statutory sexual 

assault, aggravated indecent assault of a child, indecent assault of a person 

less than thirteen years of age, and one count of terroristic threats, totaling 

sixty-one charges. At the preliminary hearing on January 27, 2014, the 

sixty sexual assault counts were held for trial, and the single count of 

terroristic threats was dismissed.

Appellee filed a Motion for Bill of Particulars on March 12, 2014, 

seeking identification of the dates, times, and locations of the sexual 

assaults. Request for Bill of Particulars, 3/12/14. He also filed a Motion for 

Bill of Particulars or Other Appropriate Relief on March 24, 2014. In that 

 

2 An individual who has reached the age of twenty-one is not a child 

pursuant to the Juvenile Act, 42 Pa.C.S. §§ 6301 et seq., and is subject to 

the jurisdiction of the criminal courts, despite being accused of committing 

the offense before the age of eighteen. See, e.g., Commonwealth v. 

Monaco, 869 A.2d 1026, 1028–1030 (Pa. Super. 2005) (relying on § 6302 

of the Juvenile Act and concluding individual who was twenty-two years old 

at time of his arrest was not a child and could not proceed in juvenile court).
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motion, Appellee sought dismissal of the Information due to the alleged 

insufficiency of its allegations and asserted that the Commonwealth did not 

adequately specify the dates and circumstances of the charges against him, 

thereby precluding him from formulating defenses. Motion for Bill of 

Particulars or Other Appropriate Relief, 3/24/14, at unnumbered 2. On April 

3, 2014, Appellee filed an omnibus pretrial motion seeking, inter alia, 

dismissal based on prejudicial delay.

On May 9, 2014, due to Appellee’s desire to proceed pro se, the trial 

court held a colloquy pursuant to Commonwealth v. Grazier, 713 A.2d 81 

(Pa. 1998), and Pa.R.Crim.P. 121. In an order dated May 9, 2014, and filed 

May 22, 2014, the trial court permitted Appellee to proceed pro se. Order, 

5/22/14, at 1. The trial court also held a hearing on Appellee’s other pretrial 

motions on May 9, 2014, as well as June 9, 2014. On June 27, 2014, the 

Commonwealth filed an Amended Information containing more specific and 

detailed allegations. Therein, the assaults were alleged to have begun in 

1996 and continued until 2002. The hearing on Appellee’s pretrial motions 

was resumed on July 9, 2014. At the July 9, 2014 hearing, Appellee verbally 

raised an “infancy defense”3in which he sought dismissal of certain counts 

based on his claim that because he was a child between the ages of eleven 

and seventeen when the alleged abuse occurred, he lacked capacity to 

 

3

 An infancy defense entails the common law presumption that children 

between the ages of seven and fourteen years lack the capacity to commit 

crimes. In the Interest of G.T., 597 A.2d 638, 639 (Pa. Super. 1991) (en 

banc).
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commit the crimes.4 In an order dated July 15, 2014, and filed July 18, 

2014, the trial court scheduled a supplemental hearing on the pretrial 

motions. That hearing was held on July 30, 2014.

On August 11, 2014, the trial court entered the following order:

AND NOW, to wit, on this 11th day of August, 2014, on the 

basis of the reasons set forth in the foregoing Opinion, it is 

ORDERED as follows:

1. The Defendant’s Motion for Bill of Particulars or Other 

Appropriate Relief is DENIED;

2. The Defendant’s oral Motion to Dismiss based upon the 

Infancy Defense is GRANTED IN PART. Counts 1-9, 13-21, 25-

33, 37-45, 49-57 shall be dismissed to the extent that they 

encompass acts occurring prior to April 2, 1999 when the 

Defendant reached the age of 14. Those counts shall continue to 

be subject to prosecution in the present case as to time periods 

from and after April 2, 1999; and

3. The Defendant’s Motion to Dismiss based upon 

Prejudicial Delay, contained in the Omnibus Motion filed on April 

3, 2014, is DENIED.

Opinion and Order, 8/11/14, at 9.

In the opinion accompanying the August 11, 2014 order, the trial court 

held there is a rebuttable presumption that Appellee did not have the 

capacity to appreciate the wrongfulness of his conduct through the age of 

 

4

 While Appellee did not file a written motion to dismiss based on the 

infancy defense or give prior written notice of intent to present an infancy 

defense, he did assert his infancy in several paragraphs of his omnibus 

pretrial motion. Omnibus Pretrial Motion, 4/3/14, at ¶¶ 20, 27, 31–32.
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fourteen. Opinion and Order, 8/11/14, at 3.5 It found that the 

Commonwealth had not rebutted that presumption and, accordingly, 

dismissed counts based on allegations of acts occurring prior to April 2, 

1999, which was when Appellee reached the age of fourteen. Id.

Appellee filed a Motion for Appointment of Standby Counsel on 

September 8, 2014, which the trial court granted on September 16, 2014. 

The Commonwealth filed its notice of appeal on September 9, 2014, 

certifying that dismissal of the charges substantially handicapped or 

terminated its case pursuant to Pa.R.A.P. 311(d). Standby counsel withdrew 

on September 26, 2014, due to a conflict of interest. Pursuant to the trial 

court’s order of September 16, 2014, the Commonwealth filed a concise 

statement of errors complained of on appeal on October 9, 2014. In an 

order dated October 15, 2014, the trial court appointed new standby counsel 

for Appellee.6 In an order filed on October 16, 2014, and in reliance upon 

 

5

 The trial court addressed Appellee’s and the victim’s ages in relation to the 

alleged acts as follows:

The Amended Information alleges a continuing course of conduct 

from 1996 to 2002, expanded from the original information. 

This means that [Appellee] could have been as young as 10 (on 

January 1, 1996) [or] as old as 17 (on December 31, 2002), 

while the victim could have been as young as 5 and as old as 12 

at the time of the alleged acts.

Opinion and Order, 8/11/14, at 5.

6

 Appellee filed a pro se brief in this appeal.
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Pa.R.A.P. 1925(a), the trial court incorporated its Opinion filed on August 11, 

2014, “as the basis for the Order of August 11, 2014.” Order, 10/16/14.

The Commonwealth raises two issues for our review, as follows:

I. The Infancy Defense is a doctrine that can no longer be 

recognized as a defense since the adoption of the Juvenile 

Act of 1976, 42 Pa.C.S.A. §6301 et. seq. in that its 

application would result in inequitable and disparate 

treatment of offenders and victims in the juvenile justice 

versus the adult criminal justice system for the same 

offenses.

II. The Infancy Defense is in essence a claim of “diminished 

capacity” or “lack of capacity” which requires the 

Defendant to admit guilt, but then allows the Defendant to 

assert the same as an affirmative defense which can only 

be determined at Trial by the fact finder, and cannot be 

used to exclude evidence or dismiss charges prior to Trial.

Commonwealth Brief at 4.

The Commonwealth’s issues involve questions of law. Therefore, our 

standard of review is de novo, and our scope of review is plenary. 

Commonwealth v. Barger, 956 A.2d 458, 461 (Pa. Super. 2008) (citing 

Commonwealth v. States, 938 A.2d 1016 (Pa. 2007)).

In its first issue, the Commonwealth argues that the infancy defense 

has been superseded by the Juvenile Act. Specifically, the Commonwealth 

states that the Juvenile Act re-defined a “delinquent child” as a child “ten 

years of age or older whom the court has found to have committed a 

delinquent act and is in need of treatment, supervision, or rehabilitation.” 

Commonwealth Brief at 10 (citing 42 Pa.C.S. § 6302). The Commonwealth 

then contends that “[o]bviously, the common law age limits were altered by 
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the adoption of this legislation which clearly establishes a presumption of 

capacity for children over the age of ten (10) who have committed crimes.” 

Commonwealth Brief at 10. The Commonwealth also argues that an 

offender “who was under the age of fourteen (14) at the time he committed 

a crime, but who was not arrested until he was an adult, would be effectively 

immune from prosecution” as an adult, and that such a position “would 

effectively vitiate the Legislature’s intentional expansion of victim’s rights 

and the [expanded] Statute of Limitations in just this type of sexual assault 

case.”7 Id. at 8. Although we appreciate the Commonwealth’s concerns, we 

are constrained to disagree.

The purpose of the infancy defense is to “protect children from 

retribution in recognition of their inability to differentiate right from wrong.” 

In the Interest of G.T., 597 A.2d 638, 641–642 (Pa. Super. 1991) (en 

banc). The common law defense of infancy has a long jurisprudential 

history:

Down through the centuries the law has attempted to save 

offending children from the rigidity of the criminal law applicable 

to adults, but the history of the law has disclosed that such 

attempts were only sporadic and in many instances 

accomplished very little. As early as the fifth century B.C., the 

Twelve Tables (c. 488–451) made the theft of crops at night a 

capital crime, but a youthful offender could escape with a fine 

double the value and a flogging. The Romans promulgated the 

defense of infantia which provided absolute immunity for those 

 

7

 The statute of limitations for sexual assaults on minors has been extended 

to “any time up to the later of the period of limitation provided by law after 

the minor has reached 18 years of age or the date the minor reaches 50 

years of age.” 42 Pa.C.S. § 5552(b.1), (c)(3).
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children who were incapable of speech. Puberty was established 

as the upper limit of eligibility for mitigated treatment. Between 

infancy and puberty, criminal responsibility depended on a 

combination of three factors—the proximity of age to either 

infancy or puberty, the nature of the offense, and the mental 

capacity of the offender.

“By the seventeenth century, the Roman classification of 

criminal responsibility became the basis of the English commonlaw approach, so that children under seven were incapable of 

committing a crime while those between seven and fourteen 

were presumed incapable. Such presumption however was 

rebuttable by strong and clear evidence. Those fourteen and 

over were subject to the same criminal laws as were adults.” D. 

Frauenhofer, A. Hart, J. Keefe, P. May, E. Sheehy, & T. Wilson, 

“Practice and Procedure of the Juvenile Court for the State of 

Connecticut,” 41 Conn.B.J. 201, 206 (1967); see 1 W. LaFave & 

A. Scott, Substantive Criminal Law § 4.11(a); see generally A. 

Kean, “The History of the Criminal Liability of Children,” 53 

L.Q.Rev. 364 (1937); A. Walkover, “The Infancy Defense in the 

New Juvenile Court,” 31 UCLA L.Rev. 503 (1984).

In re Tyvonne, 558 A.2d 661, 663–664 (Conn. 1989). “As with most 

American common law principles, the infancy defense was imported from 

Great Britain during colonization and remained in effect after the United 

States was formed.” Tara Schiraldi, For They Know not What They Do: 

Reintroducing Infancy Protections for Child Sex Offenders in Light of In re 

B.W., 52 AM.CRIM.L.REV. 679, 683 (Summer 2015).

Pennsylvania has traditionally adhered to the common law rule, as 

follows:

In Pennsylvania we have followed the common-law rule in 

measuring the capacity of a child to commit a crime. A child 

under the age of 7 years is conclusively presumed incapable of 

the commission of a crime; a child between the ages of 7 and 14 

years is likewise presumed incapable of committing a crime but 

such presumption is subject to refutation by evidence that the 
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child does possess the criminal capacity; a child over the age of 

14 years is prima facie capable of the commission of a crime.

Commonwealth v. Green, 151 A.2d 241, 246 (Pa. 1959). Thus, “any 

special immunity or presumption of incapacity ceases” when the child 

reaches fourteen. Commonwealth v. Cavalier, 131 A. 229, 234 (Pa. 

1925).8

Despite this longstanding adherence to the infancy defense in 

Pennsylvania, this Court held in Interest of G.T. that the common law 

defense of infancy was “irrelevant in determinations of delinquency in our 

juvenile justice system.” Interest of G.T., 597 A.2d. at 643. We reasoned 

that:

The purpose of determining delinquency under the Juvenile Act 

is to identify those children who have committed an act which 

would be a crime if it had been committed as an adult and who 

are, therefore, in need of special treatment, supervision and 

rehabilitation. Delinquency proceedings are not criminal in 

nature but are intended to address the special problems of 

children who have engaged in aberrant behavior disclosing a 

need for special treatment. Therefore, the defense of infancy, 

created to protect children from retribution in recognition of their 

inability to differentiate right from wrong, is irrelevant to a 

determination regarding a juvenile’s amenability to treatment, 

rehabilitation and supervision. Indeed, the Act provides that, in 

some instances where it is determined that rehabilitative goals 

cannot be met, the court may rule that the offense should be 

prosecuted, and transfer the matter to criminal proceedings. 

See 42 Pa.C.S. § 6355 (a)(4)(iii)(A).

 

8

 In fact, pursuant to the Juvenile Act, “delinquent act” does not include 

murder and many other offenses if committed by a child fifteen years of age 

or older. 42 Pa.C.S. § 6302. These charges may be directly filed in criminal 

court.
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Id. at 641–642. In so holding, however, we emphasized that “we are not of 

the opinion that our decision today encroaches upon the common law 

defense. The infancy defense arises in a criminal proceeding and, as we 

have stated, a delinquency proceeding is not criminal in nature.” Id. at 642 

(emphasis in original).

In applying the infancy defense, the trial court in the case sub judice

relied on the reasoning of Interest of G.T., as follows:

In G.T., the Superior Court held that, as to juvenile court 

proceedings, the Juvenile Act, 42 Pa.C.S. §6301 et seq., 

abrogated the common law Infancy Defense because, in the 

opinion of the Superior Court, the juvenile courts would be 

unable to provide the treatment intended by the Juvenile Act for 

children as young as 10 years of age if the Infancy Defense were 

to continue to be applicable to “delinquency proceedings” under 

the Juvenile Act, as differentiated from a “criminal proceeding.” 

G.T., 597 A.2d at 642 (emphasis in original).

In the present case, the Juvenile Act does not apply, since 

the Defendant is 29 years old and the jurisdiction of the Juvenile 

Act ends when a juvenile delinquent reaches the age of 21 

years. See: Definition of “child” at §6302 (under 21 years of 

age) and application of that term at §6321 (“Commencement of 

proceedings”) and §6303 (“Scope of chapter”); Commonwealth 

v. Monaco, 2005 Pa. Super. 79, 869 A.2d 1026 (2005). Since it 

is the Juvenile Act which abrogated the Infancy Defense, and 

only in juvenile court delinquency proceedings, and since the 

policy of the Juvenile Act as articulated in G.T., supra, to 

facilitate the treatment of a “child” in juvenile court is not 

applicable to the present case, which is a “criminal proceeding,” 

the Infancy Defense applies and the Defendant is rebuttably 

presumed to have lacked the capacity to appreciate the 

criminality of his alleged actions through the age of 14 years.

Trial Court Opinion, 8/11/14, at 4.
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Given our prior pronouncement in Interest of G.T., we cannot 

conclude that the trial court erred in finding that the infancy defense remains 

viable in criminal proceedings. In Interest of G.T., we held that the infancy 

defense was abrogated by the Juvenile Act in juvenile proceedings because 

otherwise, the juvenile court would be unable to provide treatment. That 

holding does not undermine the underlying reason for the common law 

defense, i.e., “to protect children from retribution in recognition of their 

inability to differentiate right from wrong. . . .” Interest of G.T., 597 A.2d 

at 641–642. Although, in this case, we are not protecting a “child” from 

retribution in a criminal proceeding, we are determining criminal 

responsibility. The ability to differentiate right from wrong is integral to that 

determination.

Furthermore, repeal of our common laws by implication is disfavored. 

To modify the common law, a statute must expressly declare its intent to do 

so in its provisions. In re Rodriguez, 900 A.2d 341, 415 (Pa. 2003) 

(quoting Rahn v. Hess, 106 A.2d 461, 464 (Pa. 1954) (“Statutes are never 

presumed to make any innovation in the rules and principles of the common 

law or prior existing law beyond what is expressly declared in their 

provisions”); accord United States v. Texas, 507 U.S. 529, 534 (1993) 

(“In order to abrogate a common-law principle, the statute must ‘speak 

directly’ to the question addressed by the common law.”). Thus, we cannot 
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conclude that the Juvenile Act abrogated the viability of the common law 

defense of infancy in criminal proceedings.

In summary, criminal proceedings are a determination of criminal 

responsibility, while the purpose of a juvenile disposition hearing is to 

determine treatment necessary for rehabilitation. In Interest of G.T., the 

viability of the common law defense of infancy in criminal proceedings was 

preserved by this Court. The Commonwealth has not directed us to any 

subsequent developments in the statutory or common law that cause us to 

abandon this position. Therefore, we hold that the common law defense of 

infancy remains applicable in criminal proceedings where a defendant is 

being prosecuted for conduct committed before the age of fourteen. To hold 

otherwise would subject individuals to retribution for conduct at an age 

where they were unable, or presumptively unable, to differentiate right from 

wrong.

The Commonwealth’s second issue alternatively maintains that once 

Appellee verbally asserted the infancy defense, the trial court erroneously 

shifted the burden to the Commonwealth to prove that Appellee had 

“capacity” at the time the crimes allegedly were committed. The 

Commonwealth suggests that the infancy defense is an affirmative one to be 

raised as a method to cast doubt on Appellee’s capacity at trial, rather than 

as a rebuttable presumption raised pretrial. Commonwealth Brief at 15–17. 
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We disagree, but find that the Commonwealth was not provided with a full

and fair opportunity to rebut the presumption in this case.

At the July 9, 2014 hearing, Appellee introduced the infancy defense 

as follows:

[By Appellee]: I think I will raise by other issue now. . . .

* * *

It’s called the infancy defense. It’s a common law defense 

in Pennsylvania and actually the—if this case would have 

been tried in juvenile court, it was abolished by the juvenile 

act, but what it does is protects children between the ages of 

seven and 14-years-old. And what it does is it considers 

them to be incapable of committing a crime. It’s a common 

law rule. It’s still active in Pennsylvania. It it’s not in the 

context of the juvenile act which this case is—what we’re 

doing here is we’re prosecuting a child in an adult court 

situation.

* * *

I’m saying the infancy defense is not relevant dealing with 

juvenile children being I don’t know if you want to say 

prosecuted or adjudicated as delinquent in court in a juvenile 

setting, but a child—for acts that were committed by a child 

that are being tried in adult court, the infancy defense which, 

by the way it’s presumed—the presumption is actually for 

children that are between the ages of seven and 14-yearsold . . . .

N.T., 7/9/14, at 18–19. The trial court subsequently scheduled a 

supplemental hearing for July 30, 2014. In an order dated July 15, 2014, 

and filed July 18, 2014, the trial court stated that one of the purposes of the 

hearing would be to consider Appellee’s “oral motion to dismiss based upon 

the ‘infancy defense’” along with Appellee’s March 24, 2014 Motion for Bill of 
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Particulars and Other Appropriate Relief and “that portion of the Omnibus 

Motion alleging prejudicial delay. . . .” Order, 7/18/14, at 1. The trial court 

explained in that order that “all three motions require consideration of 

common facts and legal issues that relate to each other. . . .” Id.

The majority of the July 30, 2014 hearing was devoted to the issue of 

prejudicial delay and involved the Commonwealth’s presentation of the 

testimony of Danville Police Chief Eric D. Gill. N.T., 7/30/14, at 2–26. 

Toward the end of the hearing, and after the Commonwealth had rested, the 

trial court briefly addressed the issue of the infancy defense with Appellee. 

Appellee stated the following:

What I want to say is I am not asking for dismissal based on the 

infancy [defense]. My motion is for dismissal for lack of am [sic] 

specific dates for me to prepare the defense of infancy at trial. 

The infancy defense itself would not be—it would be something 

that would be given to a Jury. It would be an additional burden 

of proof.

N.T., 7/30/14, at 28. At that point, Appellee, still proceeding pro se, 

presented the court and the Commonwealth with a brief on this issue. In 

response to the trial court’s inquiry, the Commonwealth indicated its desire 

to file a brief as well. Id. at 34–35. The Commonwealth also asked to be 

able to present evidence and stated:

[U]pon researching the infancy defense and the issues that now 

have been raised by that particular defense, if you will, that 

[Appellee] is claiming, it seems appropriate that I be able to 

bring in some of his past record which shows his interaction with 

the legal system, his knowledge of right and wrong, which 

certainly go[] to his question of capacity.
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Id. at 37 (emphasis added). The trial court refused to hear testimony, 

however, and responded as follows: “The hearing is closed on this infancy 

defense issue. I am going to make a ruling on it.” Id.

The Commonwealth now contends:

The prosecution does not bear the burden of establishing 

capacity; instead, [Appellee] would first have to admit that he 

committed these sexual offenses against the victim. The Infancy 

Defense would then be an attempted justification, excuse or 

mitigation of [Appellee’s] criminal conduct. The Commonwealth 

would then present rebuttal evidence to contradict [Appellee’s] 

affirmative defense in that regard. The issue would be decided 

by the jury at the time of trial.

Commonwealth Brief at 16 (emphasis in original).

This Court has discussed capacity, as that term is understood in 

relation to the infancy defense, as follows:

Capacity, in terms of the infancy defense, refers, not to the 

ability to formulate mens rea, . . . but to the ability to appreciate 

the criminality and wrongfulness of one’s acts. See F. McCarthy, 

The Role of the Concept of Responsibility in Juvenile Delinquency 

Proceedings, 10 University of Michigan Journal of Law Reform 

181, 183–185 (1977). It is this capacity, and not the ability 

to formulate the necessary intention, that is the subject of 

the common law presumptions regarding children.

Interest of G.T., 597 A.2d at 640 (emphasis added). We have previously 

held that the infancy defense remains a presumption in criminal 

proceedings, although “such presumption is subject to refutation. . . .” 

Green, 151 A.2d at 246. Based on this reasoning and the lack of any 

subsequent pronouncements from our Supreme Court or legislation in this 

area, we are not persuaded by the Commonwealth’s references to the 
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defense of diminished capacity or mental infirmity. Thus, any presumption 

under the infancy defense should be available to Appellee for his conduct up 

until fourteen years of age. Id.; Cavalier, 131 A. 229.

In summary, the common law defense of infancy is applicable to the 

charges against Appellee until the time he turned fourteen years old. 

However, it applies as a rebuttable presumption between the ages of seven 

and fourteen. After careful review of the certified record in this case, we 

conclude that the Commonwealth was not given an adequate opportunity to 

present rebuttal evidence, no doubt due in part to the convoluted nature of 

the proceedings and Appellee’s pro se status. As noted supra, criminal 

responsibility is generally dependent upon three factors: 1) proximity of age 

to either infancy or puberty, 2) the nature of the offense, and 3) the mental 

capacity of the offender. In re Tyvonne, 558 A.2d at 663. Relevant 

evidence of capacity goes to an appreciation of the wrongfulness of the 

conduct and may consist of, inter alia, prior experience with the juvenile or 

criminal systems at the time of the offenses and attempts to conceal the 

alleged conduct. Although we recognize the difficulty of producing such 

evidence many years after the alleged conduct, the Commonwealth should 

have been given a full and fair opportunity to produce such rebuttal 

evidence. In not doing so, the trial court erred.

Order reversed. Case remanded for proceedings consistent with this 

Opinion. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/24/2015