Commonwealth v. Piper

328 A.2d 845, 458 Pa. 307, 1974 Pa. LEXIS 722

• Court: Supreme Court of Pennsylvania
• Decided: October 16, 1974
• Docket: Appeal, 27
• Status: Published

Opinions

Opinion by

Me. Justice Roberts,

Joan Piper was tried by a jury and convicted of prostitution and solicitation to commit sodomy. A sentence of fifteen months imprisonment and a $500 fine was imposed. The Superior Court in a per curiam opinionless order affirmed. Commonwealth v. Piper, 221 Pa. Superior Ct. 187, 289 A.2d 193 (1972), aff’g 63 Berks County L.J. 117 (Pa. C.P. 1971). We granted the petition for allowance of appeal,¹ and now affirm.

Appellant first asserts as error the trial court’s refusal to charge on identification, on entrapment, and that the facts proved by the Commonwealth could not support a verdict for both prostitution and for solicitation to commit sodomy. However, no points for charge were submitted to the trial court by defense counsel. And at the conclusion of the charge and before the jury retired, the trial court queried whether “counsel have any motion, request or exception with respect to the charge?” Defense counsel answered negatively. See 63 Berks County L.J. at 120. In these circumstances, appellant’s failure to take a specific exception to the charge forecloses our consideration of these issues on appeal. Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973); Pa. R. Crim. P. 1119(b). See also Commonwealth v. Martinolich, 456 Pa. 136, 150 n.10, 318 A.2d 680, 688 n.10, cert. denied, 419 U.S. 1065, 95 S. Ct. 651 (1974); Commonwealth v. Yount, 455 Pa. 303, 318-19, 314 A.2d 242, 250 (1974); Commonwealth v. Jennings, 442 Pa. 18, 24, 274 A.2d 767, 770 (1971).

Two further challenges to appellant’s judgment of sentence are preferred. First, it is maintained that appellant’s conduct did not fall within the language of the statutory definition of solicitation to commit sodomy. Act of June 24, 1939, P.L. 872, § 502,² Second, appellant argues that the failure to set a minimum limit on her sentence denied her the equal protection of the laws since a male offender would have received a minimum sentence.³ Appellant, however, admits that neither issue was raised in the trial court⁴ or in the Superior Court;⁵ they are raised for the first time in this Court. “We have consistently held that issues not raised in the court below are waived and cannot be raised for the first time on appeal to this Court.” Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741, 741 (1972). See also Commonwealth v. Henderson, 441 Pa. 255, 260, 272 A.2d 182, 185 (1971). Therefore, this Court will not address the merits of these challenges. See Commonwealth v. McFarland, 452 Pa. 435, 437, 308 A.2d 592, 593 (1973).⁶

Appellant’s final contention is that her sentence is excessive. Imposition of sentence is within the sound discretion of the trial court. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973); Commonwealth v. Person, 450 Pa. 1, 4-5, 297 A.2d 460, 462 (1972); ABA Project on Minimum Standards for Criminal Justice, Standard Relating to Sentencing Alternatives and Procedures §§ 2.2, 3.1 (Approved Draft, 1968). See generally Palmer, A Model of Criminal Disposition, 62 Geo. L.J. 1 (1973). Fifteen months imprisonment is within the limits set by the Legislature for the two crimes of which Appellant was convicted.⁷ And we cannot say that the sentence imposed was so excessive “as to be constitutionally impermissible.” Commonwealth v. Wrona, 442 Pa. 201, 206, 275 A.2d 78, 80-81 (1971); see Commonwealth v. Lee, 450 Pa. 152, 156-57, 299 A.2d 640, 642-43 (1973).

Judgment of sentence affirmed.

Mr. Chief Justice Jones concurs in the result. Mr. Justice Eagen would remand for resentencing.

1 Appelate Court Jurisdiction Act of 1970, Act of July 81, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp. 1974).

2 Section 502 of the Act of «Tune 24, 1939, P.L. 872 has been repealed. Solicitation to commit sodomy is now dealt with by 18 Pa.C.S. §§ 902, 905(a), 3123, 3124 (1973).

3 Compare Act of June 19, 1911, P.L. 1055, § 6, as amended, 19 P.S. § 1057 (Supp. 1974), with Act of July 16, 1968, P.L. 349, § 1, 61 P.S. § 566 (Supp. 1974).

In Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974), this Court declared unconstitutional that portion of 61 P.S. § 566 that proscribed the imposition of a minimum limit on sentences for women convicted of crime and sentenced to imprisonment at the State Correctional Institution at Muncy.

4 The constitutional attack on the new Muncy Act, Act of July 16, 1968, P.L. 349, § 1, 61 P.S. § 566 (Supp. 1974), was also not brought to the trial court’s attention at sentencing. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures § 5.3(e), (f) (Approved Draft, 1968).

5 The dissenting opinion misper.ceives our refusal to consider appellant’s equal protection challenge. Even if a claim is properly presented to the trial court or the sentencing court, if it is abandoned in the Superior Court, then this Court will not pass on it. Chartiers Creek Bridge, 235 Pa. 365, 84 A. 351 (1912) (per curiam). Failure to pursue an issue on appeal is just as effective a forfeiture as is the failure to initially raise the issue. That we allowed an appeal on the assumption that an issue was properly before us makes no difference. This Court long ago affirmed this salutary rule.

“It was alleged in the petition for the allowance of an appeal that the case involved [a constitutional issue] .... And in the order allowing appeal it was stated that the appeal was allowed for the reason that a constitutional question was involved. . . .

“It appears from the record that the [constitutional] question was not raised in the Superior Court at any stage of the proceedings by the appellant ....

“Where an order allowing an appeal from the Superior Court states that the appeal is allowed because a constitutional question is involved, the argument here will be limited to that question. Where an assignment of error has been abandoned or not pressed at the argument in the Superior Court, it will not be considered here.” Chartiers Creek Bridge, 235 Pa. at 365-66, 84 A. at 351. Accord, Commonwealth v. Caruffiel, 298 Pa. 319, 321, 148 A. 311, 312 (1929) (per curiam); Clarion Borough Petition, 275 Pa. 175, 118 A. 765 (1922) (per curiam). See also Wynnewood Civic Ass’n v. Lower Merion Township Bd. of Adjustment, 406 Pa. 413, 419, 179 A.2d 649, 652 (1962).

And this Court has recently and emphatically reaffirmed the rule that we will consider only those claims properly raised by counsel, Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741, 741 (1973).

6 Similarly, the Supreme Court of the United States “has consistently refused to decide federal constitutional issues raised [there] for the first time on review of state court decisions....” Cardinale v. Louisiana, 394 U.S. 437, 438, 89 S. Ct. 1161, 1163 (1969); see Tacon v. Arizona, 410 U.S. 351, 93 S. Ct. 998 (1973); Hill v. California, 401 U.S. 797, 805-06, 91 S. Ct. 1106, 1111 (1971).

7 See the Penal Code, Act of June 24, 1939, P.L. 872, § 512 (prostitution) (maximum: $500 fine, or 1 year imprisonment, or both); id. § 502 (solicitation to commit sodomy) (maximum: $1000 fine, or 5 years imprisonment, or both).