No. 1732 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 975/978 September Term, 1975.
John Patrick, Philadelphia, for appellant.
F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance in which Jacobs, President Judge and Van der Voort, J., join. Hoffman, J., files an opinion in support of reversal in which Cercone and Spaeth, JJ., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 300]
The six Judges who decided this case being equally divided, the judgment of sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
Following a jury trial, appellant and his co-defendant were convicted of statutory rape,*fn1 rape,*fn2 and criminal conspiracy.*fn3 Written post-trial motions were filed, argued and denied. On appeal, it is contended (1) that appellant was prejudiced by leading questions addressed to the victim by the district attorney and the trial court, and (2) that the Commonwealth's failure to introduce into evidence the sheets on which the rape occurred and the victim's underclothing should have supported an unfavorable inference strong enough to produce a reasonable doubt as to appellant's guilt.
None of the claims was included in appellant's written post-trial motions. The issues are thus waived, not being properly preserved for review by this court. Commonwealth v. Carr, 471 Pa. 86, 369 A.2d 1207 (1977); Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).
[ 257 Pa. Super. Page 301]
Further, the instant appeal presents no argument either that appellant's failure to preserve his claims in post-trial motions was involuntary or that the trial court failed to comply with Pa.R.Crim.P. 1123. Reviewing these matters sua sponte would be improper and directly contrary to the philosophy expressed by our supreme court in Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975). See also Pa.R.A.P. 2116(c) and 2118(e), and this writer's dissenting opinion in Commonwealth v. Roger D. Leaman, 255 Pa. Super. 481, 388 A.2d 330 (1978).
All of the issues raised in this appeal are waived. The judgment of sentence of the court below ...