Com. v. Piper

• Decision Date: 16 October 1974
• Citation: 458 Pa. 307,328 A.2d 845
• Parties: COMMONWEALTH of Pennsylvania v. Joan PIPER, Appellant.
• Court: Pennsylvania Supreme Court

Page 845

328 A.2d 845

458 Pa. 307

COMMONWEALTH of Pennsylvania v. Joan PIPER, Appellant.

Supreme Court of Pennsylvania.

Oct. 16, 1974.

Rehearing Denied Dec. 17, 1974.

James M. Potter, Liever, Hyman & Potter, Reading, for appellant.

Robert L. VanHoove, Dist. Atty., Grant E. Wesner, Asst. Dist. Atty., Reading, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

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.Super. 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), 19 P.S.Appendix. See also Commonwealth v. Martinolich, 456 Pa. 136, 150 n. 10, 318 A.2d 680, 688 n. 10 (1974); Commonwealth v. Yount, 455 Pa. 303, 318--319, 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 proffered. 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 court ⁴ 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--157, 299 A.2d 640, 642--643 (1973).

Judgment of sentence affirmed.

JONES, C.J., concurs in the result.

EAGEN, J., would remand for resentencing.

POMEROY, J., filed a dissenting opinion.

POMEROY, Justice (dissenting).

Appellant contends that the failure of the court below to set a minimum limit on her sentence of imprisonment violated her constitutional rights. The majority declines to consider the merits of this contention on the ground that appellant has waived the issue by failing to raise it during the proceedings below. I cannot agree, and respectfully register my dissent.

It is of course true that alleged trial errors which are not brought to the attention of the trial court in a timely fashion will not be considered on appeal. Any such error must, at the very latest, be raised in post-trial motions. Commonwealth v. Reid, Pa., 326 A.2d 267 (1974) (J. 2561); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). I am not aware, however, of any similar waiver rule with respect to errors in sentencing. No mention of such a rule appears in any of our recent decisions considering sentencing errors. See, e.g., Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974); Commonwealth v. Williams, Pa., 317 A.2d 250 (1974); Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308; Wilson Appeal, 438 Pa. 425, 264 A.2d 614 (1970). Indeed, this appears to be the first occasion on which we have applied the waiver rule to a case of this sort. Sentencing, of course, takes place after the consideration of post-trial motions, the time when a defendant is required to specify the trial errors he expects to be considered by a court en banc and by an appellate court if an appeal is taken. Compare Pennsylvania Rules of Criminal Procedure 1123 And 1405: See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, § 3.1(a) (Approved Draft 1968). I am not persuaded that the rule the Court announces today will operate in the interests of justice. But even if such a strict rule of waiver should govern our ordinary practice, the rule would not be applicable here.

Today, as the majority notes, this Court announces its decision in Commonwealth v. Butler, Pa., 328 A.2d 851 (1974) (J. 137), striking down on constitutional grounds that portion of the Muncy Act ¹ which proscribes the imposition of minimum prison sentences for female offenders. As I read it, this decision is dispositive not only of Butler's constitutional claim, but of this appellant's as well. Under the holding in Butler, Joan Piper is entitled to have her case remanded for resentencing, at which time a minimum sentence should be imposed. ² In Commonwealth v. Cheeks, 429 Pa. 89, 239 A.2d 793 (1968), this Court reached the merits of a constitutional claim based on Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), although the issue had not been raised by the defendant at his trial, which occurred several months before the announcement of the Pointer decision. Speaking for the Court, Mr. Justice Roberts remarked: 'It would be manifestly unfair to hold appellant to a waiver when this waiver is alleged to have occurred at a time when neither the defendant nor his attorney had any way of knowing that there existed a right to be waived.' Id. 429 Pa. at 95, 239 A.2d at 796. The Court has re-echoed this sentiment on several occasions. ³ Although I have not always agreed with the limits to which the Court has extended this exception to the waiver rule, ⁴ I am of the opinion that the exception should apply where, as here, the proceedings below are concluded before the announcement of a controlling appellate decision based on constitutional grounds and retroactively applied. ⁵

Moreover, though no formal objection was raised at Joan Piper's sentencing hearing, there was considerable discussion concerning the term of sentence, and the trial court expressed chagrin at its inability to impose a minimum sentence. ⁶ The validity of the sentence was considered in the dissenting opinion of Judge Hoffman in the Superior Court, ⁷ and we granted allocatur specifically to consider the question of the constitutionality of discriminating between male and female offenders in the imposition of minimum sentences. The case was fully argued in this Court, but we ordered reargument in conjunction with Commonwealth v. Butler, Supra. In my view, logic and justice require that we consider appellant's constitutional claim.

Believing as I do that Butler is dispositive of appellant's constitutional claim, and that the Court's holding in that case should be given retroactive effect, I turn to the questions of the proper relief to be afforded appellant and the sentences to be imposed on other female offenders in Pennsylvania. Minimum sentences are of importance and concern to convicted offenders because of their bearing on the question of parole. The setting of a minimum sentence under the general sentencing statute (the Act of 1911), ⁸ considered in conjunction with our parole procedures, is in effect an order to the Parole Board to review the prisoner's status at the time of the expiration of the minimum. Where there is no minimum sentence, Eligibility for review commences on the date of incarceration, although as a practical matter, Actual review may not occur until many months thereafter. As did Judge Hoffman in the Superior Court, ⁹ I take judicial notice of the fact that the Parole Board, in an exercise of its discretion, has created guidelines for determining when the case of a female offender imprisoned at Muncy will be taken up for consideration. In most instances, that action takes place more than six months from the date of incarceration. We thus have a statutory scheme which frequently inures to the benefit of those imprisoned under the Muncy Act, but sometimes, as here, is clearly prejudicial to female offenders. In the case at bar, immediately before pronouncing sentence, the court remarked that a minimum sentence of six months seemed appropriate to the case, but that the statute prohibited the setting of any minimum sentence. ¹⁰ Thus,...