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COMMONWEALTH v. ABRUZZESE (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
ABRUZZESE, APPELLANT



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.

COUNSEL

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 ...


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