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COMMONWEALTH PENNSYLVANIA v. RUBY PEREA (12/28/77)

decided: December 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
RUBY PEREA, APPELLANT



No. 28 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Dauphin County, at Nos. 942, 943 and 944 of 1975.

COUNSEL

Nelson M. Galloway, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.

Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a concurring opinion.

Author: Van Der Voort

[ 252 Pa. Super. Page 274]

On September 11, 1975, Ruby Perea, appellant, was convicted by a jury of three counts of selling heroin in violation of the Drug, Device and Cosmetic Act.*fn1 Following her conviction timely post verdict motions were filed wherein appellant alleged that the verdict was contrary to the evidence, contrary to the weight of the evidence, contrary to the law and more specifically the court refused defense counsel the right to ask certain voir dire questions. Oral arguments were held on the post-verdict motion on November 6, 1975, after which the motion was denied. On December 18, 1975, appellant was sentenced to pay the costs of prosecution and undergo imprisonment in the state correctional facility at Muncy, Pennsylvania, for a term of not less than two years nor more than ten years on indictment 942. On the other two counts, appellant was sentenced to pay the costs of prosecution. From the judgments of sentence, appeal was taken to this Court.

On appeal appellant is represented by counsel different than the one who represented her during the trial and in the post-verdict motions. The issues raised on appeal are:

1. The prosecutions were illegally initiated.

2. Agents of the Pennsylvania Bureau of Drug Control may only initiate felony prosecutions by arrest on view, on the part of the proper agent.

3. It is proper to inquire as to the qualifications of veniremen.

[ 252 Pa. Super. Page 2754]

. Judge Wickersham's conduct of the trial violated the basic fairness of due process.

However, our review must be limited to consideration of the issue concerning the inquiry during the voir dire of the jury. The reason our review is confined to the one issue is because the other issues were not raised in the trial below or in post-verdict motions. The appellate courts of Pennsylvania have consistently held that issues not raised in the court below are waived and cannot be raised for the first time on appeal. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 ...


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