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decided: June 24, 1975.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1973, No. 445, in case of Commonwealth of Pennsylvania v. Shirley Henderson.


William D. Harris, with him Robert B. B. Schatz, and Klovsky, Kuby & Harris, for appellant.

James J. Wilson, Assistant District Attorney, with him Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant 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 Hoffman, J. Concurring and Dissenting Opinion by Van der Voort, J. Jacobs, J., joins in this concurring and dissenting opinion.

Author: Hoffman

[ 234 Pa. Super. Page 527]

Appellant contends that the lower court erred in considering the maximum sentence for the crime of involuntary manslaughter provided by the new Crimes Code*fn1 when the crime occurred prior to the effective date of the new Code. Appellant further contends that the Act under which she was sentenced*fn2 denies female offenders the equal protection of the laws.*fn3

On January 1, 1973, appellant was arrested and charged with murder, involuntary manslaughter, playfully and wantonly pointing a firearm, and carrying a firearm on a public street. Appellant was found guilty on the charge of involuntary manslaughter, but was acquitted of the remaining charges by a judge sitting without a jury. No written post-trial motions were filed, but immediately following trial, defense counsel argued that the

[ 234 Pa. Super. Page 528]

Commonwealth had failed to produce sufficient evidence to prove appellant guilty beyond a reasonable doubt. This motion was denied, and on July 2, 1973, appellant was sentenced to the State Industrial Home for Women at Muncy for a maximum term of three years.

Our Supreme Court has recently held that the provision of the Muncy Act which prohibits the sentencing court from imposing a minimum sentence on female offenders amounts to a denial of equal protection because male offenders are entitled to a minimum sentence. Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974). In Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974), however, the Court refused to reach the constitutional issue because appellant failed to raise it in the lower courts. In the present case, defense counsel made clear that the only post-trial motion he wished to present concerned the sufficiency of the evidence. In addition, the constitutionality of the Muncy Act was not argued at the time of sentencing, although the trial court, sua sponte, indicated that it believed the act was unconstitutional. Thus, under Piper, we are precluded from addressing the merits of appellant's constitutional claim.

Appellant next contends that the trial court's apparent confusion in regard to the applicable maximum sentence that could be imposed on the involuntary manslaughter charge compels this Court to remand for reconsideration of the sentence. Under the prior law, 18 P.S. § 4703,*fn4 involuntary manslaughter was punishable by a maximum term of three years' imprisonment. Under the new Crimes Code, however, involuntary manslaughter is a misdemeanor of the first degree, 18 Pa. C.S. § 2504, which is punishable by a maximum of five years' imprisonment. 18 Pa. C.S. § 1104(1). The trial judge was of the opinion that the Crimes Code penalty provisions governed the sentence, despite the fact that the crime occurred several

[ 234 Pa. Super. Page 529]

    months before the Code's effective date: "As you know, the maximum sentence for this crime is five years . . . . under the new code with which we are bound . . . But penalty is procedural and you have to impose a penalty as of the day the penalty is imposed." While this statement raises concerns of constitutional dimension, the conclusion is erroneous under the terms of the Act adopting the new Crimes Code: "Title 18 of the Consolidated Pennsylvania Statutes (relating to crimes and offenses), as added by this Act, does not apply to offenses committed prior to the effective date of this act and prosecution for such offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this act were not in force. For the purposes of this section, an offense was ...

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