Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1972, Nos. 22, 29, and 32, in case of Commonwealth of Pennsylvania v. James Brown.
Stephen Madva, Andrea C. Levin, and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Marianne E. Cox, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J.
[ 234 Pa. Super. Page 120]
Appellant was found guilty by a jury of three counts of corrupting the morals of a minor. The only argument raised on appeal is whether the lower court erred in its
[ 234 Pa. Super. Page 121]
charge on corrupting the morals of a minor. We need not reach the merits of that issue because we hold that the issue was not properly raised in the court below.
The three indictments charging appellant with corrupting the morals of a minor set forth that the crime was committed by appellant's having sexual intercourse with each of three minors. However, the notes of testimony reveal that the trial judge did not instruct the jury that the corrupting in this case had to be done by the act of sexual intercourse as required by the indictments but only instructed them as to the statutory definition of corrupting the morals of a minor: "Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of 18 years, or who aids, abets, entices or encourages any such child in the commission of any crime, or who knowingly assists or encourages such child in violating his or her parole or any order of court, is guilty of a misdemeanor . . ."*fn1
After the trial judge completed his charge to the jury the following exchange took place in chambers:
"THE COURT: Have you any exception to the charge, counsel?
"[DEFENSE COUNSEL]: Not so much exceptions, Your Honor, as much as a charge of corrupting to the delinquency of a minor. I believe the bills of indictment specify the acts of ...