January 23, 2014
In the Interest of C.S., a Juvenile. Appeal of Commonwealth of Pennsylvania.
Appeal from the Order of the Lehigh County Court of Common Pleas, Juvenile Division, dated July 24, 2012, at No. CP-39-JV-0000447-2012.
Heather F. Gallagher, James Bernard Martin, Lehigh County District Attorney's Office, for Commonwealth of Pennsylvania.
Andrea Dawn Olsovsky, Christian Michael Perrucci, Lehigh County Public Defender's Office, Marsha Levick, Riya Saha Shah, Juvenile Law Center, Philadelphia, for C.S.
AND NOW, this 23rd day of January, 2014, the order of the court of common pleas is REVERSED, the delinquency petition is REINSTATED, and the case is REMANDED to the court of common pleas for resolution of any issues C.S. properly raised in her motion to dismiss. The court erred when it sua sponte raised a vagueness challenge to 18 Pa.C.S. § 6312 and declared the statute unconstitutional on that basis. See MacGregor v. Mediq, Inc., 395 Pa.Super. 221, 576 A.2d 1123, 1128 (1990) (determining it was improper for trial court to act as advocate and sua sponte raise defenses on behalf of a party). By failing to raise such a challenge in the trial court, C.S. waived the issue for purposes of appeal. See Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881, 883-84 (1979) (holding that issues, even of constitutional dimension, cannot be raised for the first time on appeal); see also Pa.R.A.P. 302(a). C.S.'s additional argument that we should address the constitutional issue now in the interest of judicial economy is meritless, because she cannot raise the issue on remand. See Pa.R.J.C.P. 346 (" Unless otherwise required in the interests of justice, all pre-adjudicatory requests for relief shall be included in one omnibus motion filed prior to the adjudicatory hearing." ).
Justices EAKIN and TODD
join the order reversing and remanding the case, but express no opinion on matters of waiver.