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decided: March 29, 1973.


Appeals from order of Court of Common Pleas of Centre County, No. 353 of 1968, and judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1968, No. 37, in cases of Commonwealth of Pennsylvania v. Barry Graham Page; Commonwealth of Pennsylvania v. Benjamin A. King, M.D.


Charles C. Brown, Jr., District Attorney, with him Richard Campbell, Assistant District Attorney, for Commonwealth, appellant (Appeal No. 95).

Francis A. Searer, for appellee.

Joseph G. Skelly, with him William B. Ball, and Ball & Skelly, for amicus curiae, guardians ad litem.

John J. Dean, Assistant Public Defender, for appellant.

Carol Mary Los, Assistant District Attorney, with her Robert W. Duggan, District Attorney, for Commonwealth, appellee (Appeal No. 163).

Marjorie Hanson Matson and Stanton D. Levenson, for amicus curiae, American Civil Liberties Foundation of Pennsylvania.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Manderino concurs in the result. Concurring Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones and Mr. Justice O'Brien, join in this concurring opinion. Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Nix.

Author: Jones

[ 451 Pa. Page 333]

We have consolidated these two appeals because both involve the constitutionality of our criminal statutes proscribing abortions.*fn1

[ 451 Pa. Page ]

On October 21, 1968, Barry Page, a motorcycle mechanic with medical training as a Merchant Marine corpsman, pled guilty to the performance of two abortions.*fn2 Page's guilty plea resulted in his conviction and

[ 451 Pa. Page 334]

    a sentence of two-to-five years' imprisonment. There was no direct appeal, but Page did seek, and obtain, relief under Post Conviction Hearing Act provisions, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1 et seq.*fn3 The Court of Common Pleas of Centre County ruled that the anti-abortion statute, Section 718 of the act, was unconstitutional. Pursuant to Section 202(9) of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, § 202(9), 17 P.S. § 211.202(9), the Commonwealth has taken a direct appeal to this Court upon the order granting Page's Post Conviction Hearing Act petition.

Benjamin King, M.D., was convicted of performing an abortion which resulted in the death of his patient.*fn4 After disposition of post-trial motions which did not include a constitutional challenge to the abortion-causing death statute,*fn5 Dr. King was sentenced to two-to-five years' imprisonment by the Allegheny County Court of Common Pleas. An appeal was taken by Dr. King to

[ 451 Pa. Page 335]

    the Superior Court, which certified the appeal to us because of the pendency of the Page appeal.*fn6

[ 451 Pa. Page ]

It is important, though not critical for the purpose of passing upon these appeals, that Dr. King and Barry Page were prosecuted under separate sections of the act. Page was prosecuted under Section 718, the antiabortion statute which proscribes the procurement of a pregnant woman's miscarriage by any means with "unlawful"*fn7 intent. Dr. King was charged with a violation of Section 719 which punishes the procurement of a miscarriage causing the death of the pregnant woman or the "child" with which she is "quick." Our scrutiny of Section 718 and 719 of the act does not permit a material despecification of these sections from the Texas anti-abortion statutes which were struck down by the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973).*fn8 Because we deem the difference

[ 451 Pa. Page 336]

    between the Texas and Pennsylvania statutes inappreciable in the application of Roe v. Wade, we hold that Sections 718 and 719 are unconstitutional as violative of the Due Process Clause of the Fourteenth Amendment because these provisions fail to comport with the permissible scope of state regulation of abortion.*fn9

[ 451 Pa. Page ]

Because Sections 718 and 719 are unconstitutional the prosecutions of Page and King, commenced under the provisions of these statutes, cannot sustain the convictions thus obtained.*fn10

[ 451 Pa. Page 337]

The order of the Centre County Court of Common Pleas is affirmed and the judgment of sentence of the Allegheny County Court of Common Pleas is reversed.


Order affirmed and judgment of sentence reversed.

Concurring Opinion by Mr. Justice Eagen:

I concur in the result because under my Oath of Office I am compelled to accept the decision of the Supreme Court of the United States in Roe v. Wade, 410 U.S. 113 (1973), as to the constitutionality of abortion statutes. However, this should not be taken to mean that I agree with either the wisdom or the logic of the decision in Roe.

Dissenting Opinion by Mr. Justice Roberts:

I dissent and, in doing so, I am reminded of Mr. Justice Blackmun's recent observation in United States v. Tucker, 404 U.S. 443, 449-50, 92 S. Ct. 589, 593 (1972) (dissenting opinion): "The Court's opinion, of course, is a fine and acceptable exposition of abstract law. If I felt that it fit [this] case, I would join it. The Court, however, fails . . . to give effect to certain facts that, for me, are controlling." Here, the majority's discussion of the constitutionality of the anti-abortion statutes*fn* is an "acceptable exposition of abstract law." However, the majority fails to give effect to the controlling

[ 451 Pa. Page 338]

    fact that appellant, Benjamin King, did not challenge the constitutionality of the statute either at trial or before the court en banc, but, rather, asserts the issue, for the first time, on direct appeal. We have repeatedly held that this Court will not consider issues which were neither raised nor considered in the trial court. See, e.g., Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Commonwealth v. Donovan, 447 Pa. 450, 291 A.2d 116 (1972); Commonwealth v. Jacobs, 445 Pa. 364, 284 A.2d 717 (1971); Commonwealth v. Bittner, 441 Pa. 216, 272 A.2d 484 (1971); Heppe Estate, 440 Pa. 328, 269 A.2d 687 (1970); Wenzel v. Morris Dist. Co., Inc., 439 Pa. 364, 266 A.2d 662 (1970); Commonwealth v. Payton, 431 Pa. 105, 244 A.2d 644 (1968); Brunswick Corp. v. Key Enterprises, Inc., 431 Pa. 15, 244 A.2d 658 (1968); Commonwealth ex rel. Banks v. Myers, 423 Pa. 124, 222 A.2d 880 (1966); Bechler v. Oliva, 400 Pa. 299, 161 A.2d 156 (1960).

Recently, we unanimously said: "The appellant, who was represented by counsel throughout all the proceedings below, did not raise either of these issues at trial or in his post-trial motions. 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, supra at 189, 296 A.2d at 741.

[ 451 Pa. Page ]

Similarly, the majority fails to give effect to the fact that appellee, Barry Page, is not, on this record, eligible for relief under the Post Conviction Hearing Act [PCHA], Act of January 25, 1966, P. L. (1965) 1580, §§ 1 et seq., 19 P.S. §§ 1180-1 et seq. (Supp. 1972). On October 21, 1968, Page pleaded guilty to performing two abortions and was, subsequently, sentenced to two to five years imprisonment. Appellee, however, did not appeal from that judgment of sentence. Rather, on

[ 451 Pa. Page 339]

March 4, 1970, he filed a PCHA petition alleging that the anti-abortion statute is unconstitutional.

[ 451 Pa. Page ]

In my view, we need not reach the merits of that issue -- as does the majority -- for Page has waived the right to litigate this claim by failing to take a direct appeal. Section 3 of the PCHA mandates that "[t]o be eligible for relief under this act, a person must . . . prove . . . [t]hat the error resulting in his conviction and sentence has not been . . . waived." Act of January 25, 1966, P. L. (1965) 1580, § 3, 19 P.S. § 1180-3 (Supp. 1972). The act further provides that an issue is waived if:

"(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and

"(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

"(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure." Act of January 25, 1966, P. L. (1965) 1580, § 4, 19 P.S. § 1180-4 (Supp. 1972).

[ 451 Pa. Page ]

Here, Page failed to appeal from the judgment of sentence. He has not asserted any "extraordinary circumstances to justify his failure to raise the issue" on direct appeal. Moreover, no evidence has been offered to rebut the "presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure." Confronted with similar facts in Commonwealth v. Parker, 449 Pa. 282, 285, 296 A.2d 744, 745-46 (1972), we said, "Under such circumstances, the instant collateral attack on his conviction and sentence is foreclosed."

I dissent.

[ 451 Pa. Page 340]

Dissenting Opinion by Mr. Justice Nix:

I agree with Justice Roberts' conclusion in his dissenting opinion that neither of the appeals before us properly raised the constitutional issue. I only add that it has long been the rule of this Court that we will not attempt to resolve constitutional issues unless the specific issue is before the court and the resolution of the issue is absolutely necessary to the decision of the case. Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971); Misitis v. Steel City Piping, 441 Pa. 339, 272 A.2d 883 (1971); Shuman v. Bernie's Drug Concessions, 409 Pa. 539, 187 A.2d 660 (1963).

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