No. 95 April Term, 1977, Appeal from the Order dated August 16, 1976, of the Court of Common Pleas of Blair County, Criminal Division, at No. 354 of 1976.
Bertram B. Leopold, and Leopold & Eberhardt, Altoona, for appellant.
Thomas G. Peoples, Jr., District Attorney, Hollidaysburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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Appellant contends that she was improperly charged and convicted of the crime of theft by unlawful taking*fn1 rather than retail theft*fn2 She bases this contention on the theory that the enactment of Section 3929 of the Crimes Code*fn3 indicates a legislative intent to preclude prosecution under Section 3921*fn4 for the theft of retail merchandise. We deem this issue waived and, therefore, affirm.
Pennsylvania Rule of Criminal Procedure 304 provides that a defendant may file a pretrial application to quash an indictment to attack a defect therein. In the absence of extraordinary circumstances, indictments containing defects not formal or not apparent on the face of the document should be attacked by pretrial application. The orderly administration of justice requires that the resources expended in conducting trials not be wasted by the post trial assertion of claims of which the defense should be aware prior to trial. Commonwealth ex rel. Banks v. Myers, 423 Pa. 124, 128, 222 A.2d 880, 882 (1966). Rule 305*fn5 mandates that such an application shall be made not less than ten days before trial unless the opportunity did not exist, or the defendant or the defense attorney was not aware of the grounds for the application. Appellant failed to avail herself
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of this procedure and may not now be heard to claim that the indictment was improper. Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975). See Pa.R.Crim.P. 304(e).