decided: October 16, 1974.
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.
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.
[ 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 these challenges. See Commonwealth v. McFarland, 452 Pa. 435, 437, 308 A.2d 592, 593 (1973).*fn6
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.*fn7 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);
[ 458 Pa. Page 312]
see Commonwealth v. Lee, 450 Pa. 152, 156-57, 299 A.2d 640, 642-43 (1973).
Judgment of sentence affirmed.
Judgment of sentence affirmed.
Dissenting Opinion by Mr. Justice Pomeroy:
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, 458 Pa. 357, 326 A.2d 267 (1974); 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, 456 Pa. 550, 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.
[ 458 Pa. Page 313]
limits to which the Court has extended this exception to the waiver rule,*fn4 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.*fn5
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.*fn6 The validity of the sentence was
[ 458 Pa. Page 315]
considered in the dissenting opinion of Judge Hoffman in the Superior Court,*fn7 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),*fn8 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,*fn9 I take judicial notice
[ 458 Pa. Page 316]
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.*fn10 Thus, had the sentence been imposed under the Act of 1911, appellant would have received review of her parole status at the end of six months, whereas under the sentence imposed under the Muncy Act, she can expect review only after expiration of a period almost certain to be longer.*fn11
In light of these considerations, and after study of the helpful opinion of the Supreme Court of New Jersey in State v. Chambers, 63 N.J. 287, 307 A.2d 78 (1973), I am of the opinion that the following steps should be taken.
One. Appellant Joan Piper should be sentenced to a minimum term in conjunction with her previously imposed maximum sentence. On remand, the sentencing court should be mindful of the minimum sentence which it indicated it would have imposed were it authorized to do so.
[ 458 Pa. Page 317]
Two. Those women presently incarcerated at Muncy should be given the option of receiving minimum sentences. As noted above, the absence of a minimum sentence is often considered an advantage, and many inmates may elect not to be resentenced. The choice should be left to each individual.*fn12 The Commonwealth should be directed to give to all inmates of the State Industrial Home for Women at Muncy prompt written notice of this option in a form approved by the sentencing court, and any prisoner electing to be resentenced should apply for resentencing to the appropriate trial court within thirty days next following receipt of such notice.
Three. Finally, to insure equal treatment of the sexes, women offenders should hereafter be sentenced under the provisions of the Act of 1911 until otherwise provided by law.
As I see it, this proposal is far preferable to piecemeal litigation of claims similar to the one at bar in proceedings under the Post Conviction Hearing Act. I see no reason to postpone the inevitable day when we will be obliged to confront these claims.