No. 905 April Term, 1976, Appeal from the Judgment of Sentence of June 2, 1976, of the Court of Common Pleas, Criminal Division, of Westmoreland County, at No. 169 January Term, 1976.
Dante G. Bertani, Assistant Public Defender, Greensburg, for appellant.
Albert M. Nichols, District Attorney, Greensburg, 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. Spaeth, J., files an opinion in support of remand in which Hoffman and Cercone, JJ., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 261]
The six Judges who decided this case being equally divided, the judgment of sentence is affirmed.
[ 257 Pa. Super. Page 262]
Appellant contends that he did not knowingly and intelligently waive his right to a jury trial, that he did not consent to the incorporation of the record of a prior trial, and that the evidence was insufficient to support his conviction. These claims were not raised in appellant's oral post-trial motion and thus are waived. Commonwealth v. Jackson, 477 Pa. 195, 383 A.2d 890 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).
This appeal does not raise any issue in regard to the voluntariness of appellant's failure to include his claims in post-trial motions or the lower court's noncompliance with Pa.R.Crim.P. 1123(c). We believe it is improper for this court to engage in sua sponte review of these matters. The Pennsylvania Supreme Court has recently expressed its reliance on "the well-established and jurisprudentially sound rule that a court should not sua sponte raise an issue not properly placed before it by the litigants. See Reed v. Sloan, 475 Pa. 570, n.4, 381 A.2d 421, n.4 (1977); Commonwealth v. Branham, 467 Pa. 605, 359 A.2d 766 (1976); Weigand v. Weigand, 461 Pa. 482, 337 A.2d 256 (1975)." Commonwealth v. Mimms, 477 Pa. 553, 556 n.5, 385 A.2d 334, 335 n.5 (1978). See also Pa.R.A.P. 2116(c) and 2118(e), and this writer's dissenting opinion in Commonwealth v. Leaman, 255 Pa. Super. 481, 388 A.2d 330 (1978).
We would hold appellant's claim waived and affirm the ...