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COMMONWEALTH v. PIPER (10/16/74)

decided: October 16, 1974.

COMMONWEALTH
v.
PIPER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, No. 630, affirming judgment of sentence of Court of Common Pleas of Berks County, No. 1382 of 1969, in case of Commonwealth of Pennsylvania v. Joan Piper.

COUNSEL

James M. Potter, with him Liever, Hyman & Potter, for appellant.

Grant E. Wesner, Assistant District Attorney, with him Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones concurs in the result. Mr. Justice Eagen would remand for resentencing. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Roberts

[ 458 Pa. Page 308]

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,*fn1 and now affirm.

[ 458 Pa. Page 309]

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 proferred. 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.*fn2 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.*fn3 Appellant, however, admits that

[ 458 Pa. Page 310]

    neither issue was raised in the trial court*fn4 or in the Superior Court;*fn5 they are raised for the first time in

[ 458 Pa. Page 311]

    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 ...


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