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                                   2018 PA Super 105



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TREVOR ALLAN PRICE                         :
                                               :
                       Appellant               :   No. 307 MDA 2017

            Appeal from the Judgment of Sentence February 3, 2017
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0001350-2014

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TRAVIS ALLEN PRICE                         :
                                               :
                       Appellant               :   No. 308 MDA 2017

            Appeal from the Judgment of Sentence February 3, 2017
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0001351-2014


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

OPINION BY OTT, J.:                                        FILED MAY 02, 2018

        Trevor Allan Price and Travis Allen Price (“the Price brothers”) appeal

from their respective judgments of sentence entered on February 3, 2017, in

____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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the York County Court of Common Pleas.1 The trial court imposed a term of

six to 23 months’ imprisonment with respect to both men, following a joint

non-jury trial in which the Price brothers were convicted of statutory sexual

assault (4-8 years older).2 On appeal, the Price brothers contend: (1) the

trial court abused its discretion when it failed to determine that the

Commonwealth could not meet the statutory requirement that the Price

brothers were not “four or more years older” than the victim, where such is

an element of the offense of statutory sexual assault; and (2) whether the

court abused its discretion when it ruled they could not argue the critical

factual issue concerning the meaning of the term “four or more years older”

to the jury. See Trevor Price’s Brief at 6; see also Travis Price’s Brief at 5.

For the reasons below, we vacate the judgments of sentence.

        The trial court set forth the factual history regarding Trevor Price as

follows:

        [Trevor Price] engaged in sexual intercourse with the victim.
        Trevor admitted to this conduct. The victim was born on May 5th,
        1998, at 8:16 a.m. Trevor Price was born on May 5, 1994, at 7:00
        p.m. The first incident occurred in June of 2012 and subsequent
        instances of sexual contact occurred for the ensuing two years. It
        was also stipulated that Trevor was 18 years of age at the time of
        the first incident. Additionally, simple arithmetic indicates that
        the victim, having been born in May of 1998 and the first incident
____________________________________________


1  Based on the nature of the cases and the fact that they raised the same
issues on appeal, we have consolidated their appeals sua sponte.

2   See 18 Pa.C.S. § 3122.1(a)(1).

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      occurring in June of 2012, was 14 years old at the time of the first
      incident.

Trial Court Opinion, 6/2/2017, at 4 (record citations omitted).

      With respect to Travis Price, he also admitted that he engaged in sexual

intercourse with the same victim on one occasion. Id. The incident occurred

in August of 2012. Id.

            It was also stipulated that Travis was 18 years of age at the
      time of the incident. Additionally, simple arithmetic indicates that
      the victim, having been born in May of 1998 and the first incident
      occurring in August of 2012, was 14 years old at the time of the
      incident.

Id. at 4-5. Both men have been represented by the same counsel throughout

these proceedings.

      Moreover, the court recited the procedural history of these cases as

follows:

             [The Price brothers], who are identical twins, were charged
      in separate Informations with charges of a sexual nature for
      separate incidents involving the same victim. Trevor Price was
      charged with Statutory Sexual Assault,1 Involuntary Deviate
      Sexual Intercourse,2 Aggravated Indecent Assault,3 Corruption of
      Minors,4 and Indecent Assault.5 Travis [Price] was charged with
      Statutory Sexual Assault,6 Aggravated Indecent Assault,7
      Corruption of Minors,8 and Indecent Assault.9 Despite the cases
      being separate, the procedural histories of each case have,
      befitting twins, marched in lockstep. Ab initio, we note that we
      administered a colloquy to [the Price brothers] regarding their
      joint representation by their counsel and we were satisfied that
      they knowingly and voluntarily waived any potential conflict.
         __________________________
         1 18 Pa.C.S.A. [§] 3122.1(a)(1).




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        2   18 Pa.C.S.A. [§] 3123(a)(7).

        3   18 Pa.C.S.A. [§] 3125(a)(8).

        4   18 Pa.C.S.A. [§] 6301(a)(1)(ii).

        5   18 Pa.C.S.A. [§] 3126(a)(8).

        6   18 Pa.C.S.A. [§] 3122.1(a)(1).

        7   18 Pa.C.S.A. [§] 3125(a)(8).

        8   18 Pa.C.S.A. [§] 6301(a)(1)(ii).

        9 18 Pa.C.S.A. [§] 3126(a)(8).
        __________________________

            On July 17, 2014, [the Price brothers] separately filed their
     Petition for Writ of Habeas Corpus and/or Motion to Quash
     Information.      Subsequently, on August 13, 2014, the
     Commonwealth’s Brief in Opposition to Defendant’s Petition for
     Writ of Habeas Corpus was docketed. The Commonwealth filed a
     motion on August 12, 2014 to consolidate the cases for trial, which
     was denied by this Court on December 1, 2014 as the charges
     against [the Price brothers] involved two separate incidents and,
     thus, two separate crimes had been alleged. On December 23,
     2014, we reserved our decision on the habeas corpus motions.
     Then, on April 16, 2015, we issued an Order and an Opinion
     denying [the Price brothers]’ motions for habeas corpus relief. On
     December 28, 2015, the Commonwealth filed a Motion in Limine
     seeking to preclude counsel for [the Price brothers] from arguing
     to a jury the same age-gap theory that had undergirded [the Price
     brothers]’ habeas corpus petitions and which this Court had
     denied. One day later, we granted the Commonwealth’s Motion
     in Limine. Then, on January 19, 2016, we received Notice from
     the Supreme Court of Pennsylvania that [the Price brothers] had
     submitted Petitions for Writ of Prohibition. These petitions were
     ultimately denied on May 5, 2016. On February 3, 2017, [the
     Price brothers] proceeded to a bench trial with each Appellant
     convicted of Count 1 of their respective Informations for Statutory
     Sexual Assault with all other counts against the Appellants being


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       nolle prosequid. [The Price brothers] proceeded to sentencing
       immediately following trial and each received a sentence of six to
       twenty-three months followed by four years of probation and with
       the attendant costs of prosecution assessed against each of them.

Trial Court Opinion, 6/2/2017, at 2-3. This appeal followed.3

       Based on the nature of their claims, we will address both issues

together.     In their first argument, the Price brothers argue the court

“committed an abuse of discretion [as] a matter of law when it denied [their]

pre-trial motion for habeas corpus relief and instead determined that the

Commonwealth could meet its legal statutory requirement to prove that [the

Price brothers] w[ere] four (4) years older than the victim.” Trevor Price’s

Brief at 15, citing 18 Pa.C.S. § 3122.1(a)(1); see also Travis Price’s Brief at

14. Second, the Price brothers contend the court abused its discretion when

it ruled they could not argue the critical factual issue of what “four years older”

meant to the jury and the failure to do so “violated [their] constitutional rights

under the 6th and 14th Amendments of the United States Constitution and Art.

1, § 9 of the Pennsylvania Constitution (notice and jury trial guarantees).”




____________________________________________


3 On February 22, 2017, the trial court ordered the Price brothers to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Price brothers filed a concise statement on March 15, 2017.
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 2,
2017.



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Trevor Price’s Brief at at 20 (citation omitted); see also Travis Price’s Brief at

19.

       Our scope and standard of review regarding a habeas corpus petition4

is as follows:

       We review a trial court’s grant [or denial] of a pre-trial habeas
       corpus motion de novo and our scope of review is plenary. See
       Commonwealth v. Dantzler, 2016 PA Super 59, 135 A.3d 1109,
       1112 (Pa. Super. 2016) (en banc).

       As this Court explained in Dantzler:

          A pre-trial habeas corpus motion is the proper means for
          testing whether the Commonwealth has sufficient evidence
          to establish a prima facie case. To demonstrate that a prima
          facie case exists, the Commonwealth must produce
          evidence of every material element of the charged
          offense(s) as well as the defendant’s complicity therein. To
          meet its burden, the Commonwealth may utilize the
          evidence presented at the preliminary hearing and also may
          submit additional proof.

       Id. (internal quotation marks and citations omitted).

Commonwealth v. Carper, 172 A.3d 613, 620 (Pa. Super. 2017).

       In reviewing a trial court’s order granting [or denying] a
       defendant’s petition for writ of habeas corpus, we “must generally
       consider whether the record supports the trial court’s findings, and
       whether the inferences and legal conclusions drawn from those
       findings are free from error.” . . . Notably, the Commonwealth
____________________________________________


4  We acknowledge the Price brothers were convicted and sentenced for
statutory sexual assault and therefore, the claim could be analyzed pursuant
to a sufficiency standard of review. However, their argument centers around
the contention that the trial court erred in denying their habeas corpus
petitions and therefore, the cases should have never gone to trial. As such,
we will apply the habeas corpus standard of review.

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      does not have to prove the defendant’s guilt beyond a reasonable
      doubt. Further, the evidence must be considered in the light most
      favorable to the Commonwealth so that inferences that would
      support a guilty verdict are given effect.

Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (citations

omitted).

      Here, the statute at issue provides, in pertinent part:

      (a) Felony of the second degree. — Except as provided in
      section 3121 (relating to rape), a person commits a felony of the
      second degree when that person engages in sexual intercourse
      with a complainant to whom the person is not married who is
      under the age of 16 years and that person is either:

         (1) four years older but less than eight years older than
         the complainant[.]

18 Pa.C.S. § 3122.1(a)(1) (emphasis added).

      Turning to the present matter, [the Price brothers] argue that “the

crucial wording of the statute refines the basic question to what does ‘four

years older’ mean and is it subject to a determination by a jury?” Trevor

Price’s Brief at 22; see also Travis Price’s Brief at 21.       They contend the

language of the statute of is not free from ambiguity and therefore, pursuant

to the rule of lenity, the benefit should go to the accused. Trevor Price’s Brief

at 22-23; see also Travis Price’s Brief at 21-22. Specifically, they state:

             It is with this understanding that [Trevor Price] believes that
      he is less than four years older than the victim. He was born May
      5, 1994, at 7:00 p.m. [Travis Price also believes he is less than
      four years older the victim because he was born on May 5, 1994,
      at 6:50 p.m.] The victim was born May 5, 1998, at 8:16 a.m.


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      Accordingly, [they are] 3 years, 364 days, and approximately 10
      hours older than the victim. These facts are not disputed. What
      is disputed is what a “year” means as it relates to its calculation
      in terms of “days.” A “day”7 is twenty-four (24) hours. These
      facts, [the Price brothers] contend[], were ambiguous, subject to
      multiple interpretations as evidenced by both the argument of the
      prosecution and the decision of the trial court.

         ________________________
         7 According to “BLACK’S LAW DICTIONARY,” 9TH Ed., West,

         2009- A “day” is any 24-hour period; the time it takes the
         earth to revolve once on its axis. at p. 453. An “entire day”
         is [a]n undivided day, rather than parts of two or more days
         aggregated to form a 24-hour period. An entire day must
         have a legal, fixed precise time to begin and end. A statute
         referring to an entire day contemplates a 24-hour period
         beginning and ending at midnight. Id. at p. 454.

Trevor Price’s Brief at 23-24; see also Travis Price’s Brief at 22-23.

      The trial court, however, analyzed the issue as follows:

      As alluded to supra, the victim was under the age of 16 at the
      time of the incidents by dint of her birthdate being May 5th, 1998
      and the incidents in question occurring in 2012. [Trevor and
      Travis Price] admitted to sexual intercourse with the victim. (N.T.,
      2/3/17, at 13 and 20.) Marital status aside, the only real issue is
      whether or not [Trevor and Travis Price] were four years older
      than the victim at the time of the incident. This question is born
      of [Trevor and Travis Price] and the victim sharing a birthday
      separated by four years of time. Yet, as stated by [Trevor and
      Travis Price’s] lawyer, [the Price brothers] are not technically 4
      years older than the victim; but, rather, [they] are 3 years, 11
      months, 29 days, and approximately 11 hours older than the
      victim. The age–gap could hardly be more inconvenient for a
      court to interpret unless reduced to minutes, seconds, and
      infinitely smaller dissections of time.

            Counsel for the Appellants represented to this Court that she
      could find no relevant case law within Pennsylvania to clarify the
      issue and we note that neither this Court, nor the Commonwealth,


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     discovered any such law either. [Trevor and Travis Price] did,
     however, produce the case of United States v. Brown, Jr., which
     appears to be on point. 740 F.3d 145 (3d Cir. 2014). In Brown,
     Jr., the Third Circuit Court of Appeals reviewed a decision by the
     District Court to withdraw its approval of a Sex Offender
     Registration and Notification Act - implicated plea where the
     District Court found that it served the interests of justice to do so
     because the defendant was 17 and his victim was 13, which the
     District Court found to fall within a SORNA exception. Id., at 147.
     As noted by the Brown, Jr. court, 42 U.S.C. § 16911(5)(C),
     “provides that an offense involving consensual sexual conduct is
     not a sex offense under SORNA as long as the victim ‘was at least
     13 years old and the offender was not more than 4 years older
     than the victim.’” Id., at 149 (emphasis added). The question
     was whether Brown, being between four and five years older than
     his victim was truly more than 4 years older where Congress could
     have defined the differential in terms of months. Id., at 148.
     Accounting for leap year, the Brown, Jr. court concluded that the
     term “4 years” is quite precisely 1,461 days. Id., at 149 (citing
     Black’s Law Dictionary 1754 (9th ed. 2009)). Thus, “‘[m]ore than
     4 years’ means anything in excess of 1,461 days.” Id. The
     Brown, Jr. court went on to state the following:

        Though we have not ruled before on the meaning of “years”
        in this exact context, several state courts have interpreted
        how to count “years” when applying sexual offense statutes.
        The Connecticut Supreme Court observed that “common
        sense dictates that in comparing the relative ages of
        individuals, the difference in their ages is determined by
        reference to their respective birth dates.” State v. Jason
        B., 248 Conn. 543, 729 A.2d 760, 767 (1999). Florida,
        Wisconsin, and North Carolina have each relied on that
        interpretation to conclude that the phrase “more than 4
        years older” within 42 U.S.C. § 16911(5)(C) or similar
        statutes means more than 1,461 days older. See State v.
        Marcel, 67 So.3d 1223, 1225 (Fla.Dist.Ct.App. 2011) (“if a
        defendant is one day past the four-year eligibility .. . [he]
        clearly is ‘greater’ or ‘of a larger amount’ than four years.”);
        State v. Parmley, 325 Wis.2d 769, 785 N.W.2d 655, 662
        (Wis.Ct.App. 2010) (“From these cases we conclude that to
        calculate the disparity of ages . . . to determine if an actor


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        is exempt from registering as a sex offender, the time
        between the birth dates of the two parties is to be
        determined.”); State v. Faulk, 200 N.C.App. 118, 683
        S.E.2d 265, 267 (2009) (“Neither our legislature nor this
        court deals only in whole integers of years, and, as such,
        this argument must fail. So too does defendant’s argument
        that a plain language analysis of the statute requires this
        Court to consider the everyday conversational meaning of
        age differences....”). That conclusion is, we think, entirely
        correct.

     740 F.3d, at 151. Based upon this recitation, the Third Circuit
     Court of Appeals reinstated the indictment against Brown, Jr. as
     he was, as stipulated, 4 years older than his victim at the time of
     the offense. Id. Yet, the Brown, Jr. court could barely envision
     the scenario confronted by this Court. Quoting the Brown, Jr.
     court,

        It seems highly unlikely that a prosecution will ever be
        brought on the basis that someone who is exactly 4 years
        older than another by birth -date will be prosecuted under
        SORNA on the theory that, by hours or minutes, the offender
        was “more than 4 years older.” We are not required to
        address extreme hypotheticals.

     Id., at 150, n. 10. We have before us more than an extreme
     hypothetical, for it is a criminal case.

           Instantly, it must be recognized that the SORNA exception
     at issue in Brown, Jr. stands in contrast to 18 Pa.C.S.A.
     3122.1(a)(1), which we deal with here. The SORNA exception
     deals with the phrase “more than 4 years” 42 U.S.C. §
     16911(5)(C); whereas, 18 Pa.C.S.A. 3122.1(a)(1) simply states
     that the offender must be “four years older”. Nonetheless, we find
     this to be a distinction without a difference. The “extreme
     hypothetical” recounted supra raises the instant issue.

           We have circled long enough and now we state why there
     was sufficient probable cause. Just as the Brown, Jr. court found
     that, “‘[m]ore than 4 years’ means anything in excess of 1,461
     days,” it follows that 4 years means 1,461 days. 740 F.3d 145,


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     148 (3d Cir. 2014). [Trevor and Travis Price] were born 1,461
     days before their victim, which satisfies the four years older
     element of 18 Pa.C.S.A. 3122.1(a)(1). [The Price brothers] were
     not more than four years older than the victim; however, [they]
     were, exactly, four years older. We find some ancillary support
     for our conclusion in Commonwealth v. Hooks, 921 A.3d 1199
     (Pa. Super. Ct. 2007). In Hooks, the Superior Court clarified that
     the common law practice of ascribing a newly attained age to a
     person on the day before their birthday is abolished and that the
     anniversary date of birth marks the achievement of the next age.
     Id., at 1209-1210. “[W]e conclude a person reaches a given age
     on the anniversary of birth, that is, on his or her birthday.” Id.,
     at 1210. Though the context is admittedly different, we are
     nonetheless struck by the clarity of dealing in days and we believe
     that the ipse dixit argument presented by [Trevor and Travis
     Price] would result in a tyranny of semantics. This is why we
     further rejected [their] argument in favor of applying the rule of
     lenity. As stated in Sondergaard v. Com., Dept of Transp.:

        The rule of lenity provides that where a statute is penal and
        the language of the statute is ambiguous, the statute must
        be construed in favor of the defendant. . . and against the
        government.       Underpinning the rule of lenity is the
        fundamental principle of fairness that gives validity to our
        laws and requires a “clear and unequivocal warning in
        language that people generally would understand as to what
        actions would expose them to liability for penalties and what
        the penalties would be.” Commonwealth v. Reaser, 851
        A.2d 144, 149 (Pa. Super. Ct. 2004) (quoting
        Commonwealth v. Cluck, 381 A.2d 472, 477 (Pa. Super.
        Ct. 1977)). The rule of lenity, though it has its origins in
        common law, is consistent with Pennsylvania’s rules of
        statutory construction, which require that provisions of a
        penal statute, whether that statute be civil or criminal, must
        be construed narrowly. See 1 Pa.C.S. § 1928(b) (“All
        provisions of a statute of the classes hereafter enumerated
        shall be strictly construed: (1) penal provisions . . .”).

     Sondergaard v. Com., Dept of Transp., 65 A.3d 994, 997-98
     (Pa. Cmwlth. [2013]). Frankly, we do not find the statute in
     question, 18 Pa.C.S.A. 3122.1(a)(1), to be ambiguous. Moreover,


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     18 Pa.C.S.A. 3122.1(a)(1) does give a clear and unequivocal
     warning in language that people generally would understand as to
     what actions would expose them to liability. Sondergaard,
     supra.

Trial Court Opinion, 6/2/2017, at 6-11 (footnotes and record citations

omitted).

     Recognizing   that   this   case   presents   a   unique   set   of   factual

circumstances, we are compelled to disagree with the court’s conclusion. We

begin by noting we are guided by the following:

     The [Statutory Construction] Act is clear that the object of all
     interpretation and construction of statutes is to ascertain and
     effectuate the intention of the legislature. 1 Pa.C.S.A. § 1921(a).
     Generally, the best indication of the General Assembly’s intent is
     the plain language of the statute. Martin v. Commonwealth,
     Dep't of Transp., Bureau of Driver Licensing, 588 Pa. 429,
     438, 905 A.2d 438, 443 (2006). When the words of a statute are
     clear and unambiguous, there is no need to look beyond the plain
     meaning of the statute “under the pretext of pursuing its spirit.”
     1 Pa.C.S.A. § 1921(b); see Commonwealth v. Conklin, 587 Pa.
     140, 152, 897 A.2d 1168, 1175 (2006). Consequently, only when
     the words of a statute are ambiguous should a court seek to
     ascertain the intent of the General Assembly through
     consideration of statutory construction factors found in Section
     1921(c). 1 Pa.C.S.A. § 1921(c); Koken v. Reliance Ins. Co.,
     586 Pa. 269, 288, 893 A.2d 70, 81 (2006).

           Additionally, penal statutes are to be strictly construed. 1
     Pa.C.S.A. § 1928(b)(1); Commonwealth v. Booth, 564 Pa. 228,
     234, 766 A.2d 843, 846 (2001); Commonwealth v. Wooten,
     519 Pa. 45, 53, 545 A.2d 876, 879 (1988). Yet, the need for strict
     construction does not require that the words of a penal statute be
     given their narrowest meaning or that legislative intent should be
     disregarded. Id. at 53, 545 A.2d at 880; Commonwealth v.
     Gordon, 511 Pa. 481, 487, 515 A.2d 558, 561 (1986). It does
     mean, however, that, if an ambiguity exists in the verbiage of a


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      penal statute, such language should be interpreted in the light
      most favorable to the accused. Booth, 564 Pa. at 234, 766 A.2d
      at 846; Wooten, 519 Pa. at 53, 545 A.2d at 879. More
      specifically, “where doubt exists concerning the proper scope of a
      penal statute, it is the accused who should receive the benefit of
      such doubt.”      Booth, 564 Pa. at 234, 766 A.2d at 846;
      Commonwealth v. Allsup, 481 Pa. 313, 317, 392 A.2d 1309,
      1311 (1978).

             Finally, the Crimes Code itself supplies guidance as to the
      construction of the provisions of the Code: “The provisions of this
      title shall be construed according to the fair import of their terms
      but when the language is susceptible of differing constructions it
      shall be interpreted to further the general purposes stated in this
      title and the special purposes of the particular provision involved.”
      18 Pa.C.S.A. § 105.

Commonwealth v. Fithian, 961 A.2d 66, 73-74 (Pa. 2008).

      The Pennsylvania Crimes Code does not specifically define the meaning

of the term “four years older.” Further, both the Third Circuit and a panel of

this Court have calculated applicable dates for similar statutes in terms of

days, not hours.    See Brown, supra; Hooks, supra.           Relying on those

decisions, the trial court herein determined that “four years means 1,461

days” and the Price brothers were born 1,461 days before the victim, “which

satisfie[d] the four years older element” of Section 3122.1(a)(1). Trial Court

Opinion, 6/2/2017, at 9-10 (emphasis added). The court also determined the

difference between the federal statutory language analyzed in Brown, supra,




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“more than 4 years,”5 and the phrase at issue here, “four years older,” was “a

distinction without a difference.” Trial Court Opinion, 6/2/2017, at 9.

       As recited above, Trevor Price was born May 5, 1994, at 7:00 p.m.,

Travis Price was born May 5, 1994, at 6:50 p.m., and the victim was born May

5, 1998, at 8:16 a.m. If the difference in the ages of the defendants and the

victim is calculated by hours, both brothers are 3 years, 364 days, and

approximately 10 hours older than the victim.        Consequently, the Price

brothers are less than four years older than the victim by 14 hours. However,

as found by the trial court, if the term is counted by days, then they would be

“four years older” because the brothers are 1,461 days older than the victim.6

The definition of what constitutes a day is not defined by the Crimes Code,

and that determination is essential to this calculation. Nonetheless, we accept

the Price brothers’ argument that

       [they] had to be a full 1461 days older than the victim. A “day”
       is twenty-four (24) hours. [They] w[ere] not a full 1461 days
       older than the victim in June of 2012 [and August of 2012]. This
       fact has been stipulated. [The Price brothers] w[ere] fourteen
       (14) hours short of a full day from the age of the victim.

Trevor Price’s Brief at 30 (reproduced record citation omitted); see also

Travis Price’s Brief at 28-29.

____________________________________________


5   See 42 U.S.C. § 16911(5)(C).

6   See Trial Court Opinion, 6/2/2017, at 9-10.


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       Because this is a unique case, and given that the Pennsylvania

legislature has yet to define the term “four years older,” we are compelled to

conclude there is a latent ambiguity when the term is applied to the special

set of facts.7 By using only days, the trial court ignored the fact that based

on the exact date and time of birth of the victim and the Price brothers, they

were not four years older than the victim. Rather, they were 14 hours short

of that requirement. As such, we must apply the rule of lenity to resolve the

ambiguity in Section 3122.1(a)(1) in favor of the Price brothers. Fithian, 961

A.2d at 73. Applying that rule to this case, we find the Commonwealth has

not satisfied the “four years older” requirement of Section 3122.1(a)(1) with

regard to the Price brothers, because they are only 3 years, 364 days, and

approximately 10 hours older than the victim.

       Accordingly, we conclude the trial court erred in denying the Price

brothers’ habeas corpus petitions and subsequently, finding them guilty of




____________________________________________


7  One could reasonably interpret the statute two different ways as to what
precisely a day is and therefore, the period of 1,461 days becomes inclusive
or exclusive as to a defendant who is born “on the day of” under Section
3122.1(a)(1).




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statutory sexual assault under Section 3122.1(a)(1). 8 Therefore, we vacate

the judgments of sentence.

       Judgments of sentence vacated. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/02/2018




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8 Consequently, because we determined the trial court erred in denying their
petitions based on statutory construction, we need not address their
remaining argument regarding whether the trial court abused its discretion
when it ruled they could not argue the critical factual issue of what “four years
older” meant to the jury.

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