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decided: December 11, 1974.


Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 1370 of 1972, in case of Commonwealth of Pennsylvania v. Phyliss N. Abruzzese.


Richard R. Fink, Assistant Public Defender, for appellant.

G. Roger Markley, Assistant District Attorney, Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Spaeth, J.

Author: Price

[ 231 Pa. Super. Page 158]

On May 1, 1972, a criminal complaint was filed charging the appellant with assault and battery*fn1 and disorderly conduct*fn2 arising out of an altercation between the appellant and two police officers. On May 23, 1972, a combined preliminary hearing and summary hearing was held before a magistrate where the appellant was found guilty of disorderly conduct and fined $25, and was bound over for the next term of the Grand Jury on the assault and battery charge.

An indictment charging assault and battery was found on July 28, 1972, and appellant was tried and convicted before a jury on February 14, 1973. Following denial of post-trial motions, sentence was imposed on May 17, 1974.

In this appeal appellant contends that the two charged crimes grew out of the same offense, and because the conviction for disorderly conduct arose from the indictment for assault and battery, the appellant was subject to double jeopardy. The claim of double jeopardy was not raised before or during trial, and was raised for the first time in the post-trial motions.

Appellant now urges this court to consider her claim of double jeopardy, contending that it is incumbent upon the court to consider an issue that raises a basic and fundamental error. We disagree, finding that appellant's failure to raise the issue of double jeopardy prior to the trial precludes our consideration of this allegation of error.

The doctrine of basic and fundamental error*fn3 has been recently abrogated by the Pennsylvania Supreme

[ 231 Pa. Super. Page 159]

Court. In Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), a civil case, the appellant conceded that he had neither offered a point for charge nor taken a specific exception to an instruction actually given. On appeal, appellant contended that an appellate court must consider those trial errors claimed to be basic and fundamental despite the absence of any objection or specific exception at trial. In response, the Supreme Court concluded that "basic and fundamental error has no place in our modern system of jurisprudence . . . [because it] has become an impediment to the efficient administration of our judicial system."

[ 231 Pa. Super. Page 160457]

Pa. at 260, 322 A.2d at 117. In reaching this conclusion, the court noted that there are two practical problems with basic and fundamental error that make it an unworkable appellate privilege: "[1] [the] appellate court recognition of alleged errors not called to the trial court's attention has a deleterious effect on the trial and appellate process . . . [and] [2] despite its repeated articulation, the theory has never developed into a principled test, but has remained essentially a vehicle for reversal when the predilections of a majority of an appellate court are offended." Id. at 257, 322 A.2d at 116.

The Dilliplaine rationale has been applied to the applicability of the basic and fundamental error doctrine, and the failure to properly preserve trial errors, in criminal matters. In Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), the court expressly abrogated the doctrine of basic and fundamental error in criminal cases, specifically noting that "no longer will allegations of basic and fundamental error serve to enable parties in criminal matters to seek reversal on alleged errors not properly raised below."*fn4 458 Pa. at 423, 326 A.2d at 274.

[ 231 Pa. Super. Page 161]

We find that the principles enunciated in Dilliplaine and Clair are applicable to the issue in this appeal as to whether this court should consider appellant's claim of double jeopardy, raised for the first time in post-trial motions.*fn5 Appellant was found guilty of disorderly conduct by a magistrate on May 23, 1972. The double jeopardy issue, based on the "same offense" test, see Waller v. Florida, 397 U.S. 387, rehearing denied, 398 U.S. 914 (1970), Ashe v. Swenson, 397 U.S. 436 (1970), arose when appellant was later indicted for assault and battery on July 28, 1972, and tried on that charge on February 14, 1973. Thus, appellant had six-and-one-half months' notice as to the possibility of being placed in double jeopardy, during which time no appropriate pre-trial motions were entered. Appellant also did not avail herself of the opportunity to raise this issue during the trial, and offered no reason for her failure to

[ 231 Pa. Super. Page 162]

    do so.*fn6 For these reasons, we find that appellant has waived her claim of double jeopardy, and, therefore, affirm the judgment of sentence.

Judgment of sentence affirmed.


Judgment of sentence affirmed.

Concurring Opinion by Spaeth, J.:

I agree that the result reached by Judge Price is required by Clair, which establishes that an issue not raised at trial is to be considered as waived by the defendant, or, more accurately, that the defendant will be held estopped to raise the issue on direct appeal. But Clair does not preclude appellant from raising at a PCHA hearing the issue of ineffective assistance of counsel if the waiver at trial was a result of that ineffectiveness. Thus it is not, in my view, accurate to say that "appellant has waived her claim of double jeopardy." To me, this implies a knowing waiver. In fact, however, it may be that counsel never advised appellant of her right not to be placed in double jeopardy, and that she did not know she had that right. If this is the case, appellant may well be entitled to a new trial, for I find it hard to imagine any rational tactical reason why counsel would not plead a complete defense such as double jeopardy.

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