*1 the trial by failing court erred chal suppress lenged evidence.7
The of the order Superior judgment of sentence are trial reversed and new granted.
Mr. Justice Manderino concurs the result. in Concurring Pomeroy: Mr. Justice I in the concur opinion Court, noting only I continue with the disagree Court’s decision Milliken, A. 2d which is here (1973), Sec properly distinguished. id., 300 A. dissent J., (Pomeroy, ing). banc, upon ruling appellants’ post-trial en court mo- judgment, tions for a trial new arrest of also held the validly supported by probable However, search warrant cause. doing, oral, so court en bane took into consideration the suppression hearing testimony previously affiant-officer, dis- regarded impliedly suppression stricken court. This the authority do, only court en banc without was since not was this subject testimony, suppression direction, at the court’s to cross- examination, suppression finding also but because the court’s testimony credibility fully sup- the affiant-officer’s lacked
ported by the record. Page. Appellant,
Commonwealth, King, Appellant. Commonwealth v. O. J., 1972. Before Jonhs, Argued January *2 Nix Man- Pomeroy, O’Brien, Roberts, Eagen, JJ. DERINO, him Attorney, District with Brown,
Charles C. Jr., for Attorney, District Richard Assistant Campbell, 95). No. Commonwealth, appellant (Appeal for appellee. Francis A. Searer, with him William B. Joseph Shelly, Ball, C. guardians for amicus ad litem. Shelly, curiae, Ball & Assistant Public for ap- J. Dean, Defender, John pellant.
Carol Assistant District with Mary Los, Attorney, her Robert District for Common- W. Duggan, Attorney, No. 163). wealth, appellee (Appeal Hanson Matson Stanton D. Marjorie Levenson, Civil curiae, amicus American Liberties Founda- tion Pennsylvania. Mb. Justice March Chief Jones,
1973:
We because have consolidated these two appeals both involve the criminal stat constitutionality our utes proscribing abortions.1
On October me Barry Page, motorcycle chanic medical as a Merchant Marine training performance two abort corpsman, pled guilty to *3 ions.2 guilty resulted his conviction and Page’s plea
1 “§718 miscarriage “Whoever, procure any with intent the of unlawfully any woman, drug poison, substance, administers to her or any unlawfully instrument, means, or or uses other with the like guilty intent, felony, upon thereof, is of conviction shall be sen- pay exceeding ($3,000), tenced to fine not three thousand dollars undergo by separate imprisonment solitary or or confinement at exceeding (5) years, or labor not five both. “§719 unlawfully any pregnant woman, “Whoever administers or supposed quick child, pregnant quick or with and believed to be or poison any drug, child, unlawfully substance, with or other or uses any means, procure other the instrument or with intent to the mis- carriage woman, resulting woman, of such in the death of such or may quick, guilty felony, she child which of upon thereof, pay shall conviction be sentenced to fine not ex- ceeding undergo ($6,000), imprisonment by six dollars or thousand solitary separate exceeding (10) confinement labor at not ten 1939, years, 872, §§718-719, P. Act of June B. or both.” 18 P.S. §§4718-4719. 2 successfully performed operations “pa- Both were and each physical procedure impairment. the tient” survived without There years’ imprisonment.
a sentence of two-to-five re no but Page seek, obtain, direct did appeal, was Act Act Hearing provisions, lief under Post Conviction L. of P. January P.S. (1965) 1580, §1180-1 et County The Court of Common Pleas Centre seq.3 the anti-abortion Section statute, ruled 202(9) was unconstitutional. Pursuant to Section act, July 31, Court Jurisdiction Act of Appellate Act, Com P. L. P.S. §202(9), §211.202(9), up Court taken a this appeal monwealth has direct Hearing Page’s Post Conviction on the order granting petition. Act convicted Benjamin M.D., performing King, patient.3 resulted in the death his abortion
an which in not motions did disposition post-trial After which abortion-causing challenge clude a constitutional Hi*. two-to-five King death was sentenced to statute,5 Allegheny County years’ imprisonment King An Dr. appeal Common Pleas. was taken Page argue does not “waived” Though by failing appeal. question it on direct constitutional to raise recognized legitimate proce- concept need has “waiver” argue regularity, is not if the Commonwealth inclined to dural sponte. issue, raise it sua should not perforated King abortion, dece- Dr. In the course of hemorrhaging peritonitis, and, massive dent’s cervix. She sustained patient consequence, ex- severe traumatic shock. The as a suffered days procedure. pired two after abortion on December appeal, generally issues, not we will consider direct While post-trial (Commonwealth presented motions were which *4 (1972) Donovan, 450, ; A. 2d Ja v. 447 291 116 Commonwealth Pa. Bittner, (1971) ; cobs, 364, A. 2d 717 Commonwealth v. Pa. 284 445 excep (1971)), 216, A. 2d 484 we have enunciated an Pa. 441 272 here, policy. when, public one as issue is of to that rule tion (1966) Dessus, ; A. Pa. 224 2d v. 423 193 Philadelphia, Corp. ; (1953) A. 95 v. 373 542 Muse-Art (1930). Kine, 845 301 Schline
335 us certified the Superior appeal which Court, because of the of the pendency Page appeal.6 for the though purpose not critical important,
It
Dr.
passing upon
King
Barry
of
these
appeals,
of the
Page were
under
sections
prosecuted
separate
act.
anti
Page was
Section
prosecuted
abortion statute
proscribes
procurement
which
“unl
a pregnant
miscarriage
woman’s
means with
by any
viola
awful”7 intent. Dr.
with a
charged
was
King
tion
of Section 71.9
punishes
procurement
which
a miscarriage
pregnant
the death of the
woman
causing
or the “child”
scrutiny
which she is “quick.”
with
Our
permit
Sections
and 719
act does
not
material
sections
from
despecification
of these
Texas
down
anti-abortion statutes
were struck
which
Wade,
United States
Court
Roe v.
Supreme
or medicine, or shall use towards her violence or or means what- internally externally applied, thereby procure an abor- ever penitentiary in the tion, confined he shall be not less than nor two *5 inappre statutes Pennsylvania Texas between the hold Roe v. Wade, of in the application ciable violative as are unconstitutional 718 and 719 Sections Amend the Fourteenth Clause of Process of Due the the comport fail to ment because these provisions abortion.9 of regulation of state permissible scope unconstitutional 719 are 718 and Because Sections commenced Page King, of the prosecutions the con cannot sustain these statutes, the of provisions victions thus obtained.10 punish- consent, years; the her if it done more than five be without By life of the meant that the ‘abortion’ is
ment shall doubled. destroyed embryo or that in the womb shall be woman’s fetus or premature caused. birth thereof be producing abortion. Murder in “Article 1194. by so an abortion mother is occasioned “If the death of the by attempt produced it is murder.” to effect the same an Supreme our the Texas statutes and considered That the Court application purposes provisions “similar”, for anti-abortion Wade, the inclusion of evidenced in Roe is of the decision Mr. our act in Justice to Sections 718 citation Black- “[sjimilar statutes statement to his textual footnote mdh’s majority the U.S. at 118. States.2” 410 in a are in existence carefully regulatory permissible de- role of the States is Blackmun : Mr. Justice lineated stage approximately prior the first “(a) the end of For the be left to trimester, and its effectuation must decision the abortion physician. pregnant attending judgment of the woman’s the medical subsequent approximately stage the “(b) end of For the promoting State, in the trimester, in its interest health first regulate procedure chooses, may, mother, the abortion if it reasonably ways related to maternal health. that are in viability pro- stage subsequent State, “(c) For the potentiality life, may, moting if it human interest its proscribe, except regulate, abortion is chooses, where it and even preservation judgment, appropriate medical for the necessary, in U.S. at of the mother.” 410 164. health life or Supreme speaking Court, important note that It delineating permissible scope through Mr. Justice Blackmun, Wade, regulation Roe allowed that of abortion of state The order of Common of the Centre County Pleas is affirmed and sentence of the judgment Allegheny County Court of Common Pleas is reversed.
Mr. Justice Manderino in the concurs result. *6 by Concurring Eagen Opinion Mb. Justice : I Oath of my concur the result because under Office I am decision of the Su- compelled accept the preme Court in Roe v. Wade, United States 410 U.S. 113 of abortion constitutionality as (1973), to mean statutes. this should not be taken However, T either the agree logic wisdom or decision Roe.
Mr. O’Brien, Chief Justice Jones and Mr. Justice join this concurring opinion. by
Dissenting
Mr.
Justice
Roberts
:
I
I
dissent
am reminded of Mr.
and,
doing so,
Justice
in United States
recent observation
Buackmun’s
v.
404
92
Tucker,
U.S.
S. Ct.
593
443, 449-50,
589,
: “The Court’s
(1972) (dissenting opinion)
opinion,
is a
of abstract
acceptable exposition
fine and
course,
I
join
If I felt that it fit
would
it. The
case,
law.
[this]
...
effect
certain facts
give
fails
Court, however,
controlling.”
majority’s
for
are
dis
that,
me,
Here,
of the anti-abortion
constitutionality
cussion
stat
“acceptable exposition
utes* is an
of abstract
law.”
fails to
effect to the con-
However,
majority
give
“proscribe
person
physi-
state could
abortion
who is
‘physician’
cian [as
State].”
is defined
trolling
either at
constitutionality
of the statute
challenge
asserts
en banc, but, rather,
or before the
trial
court
appeal.
first
We have
for the
direct
time,
issue,
not consider issues
held that
this
will
repeatedly
in the trial
raised nor considered
which
neither
were
v.
Similarly, on this Barry Page, not, record, appellee, fact that the Post Conviction eligible Hearing relief P. L. January (1965) Act of [PCHA], Act seq. (Supp. 1972). et P.S. seq., et §§1180-1 §§1 guilty to Page pleaded performing 21,1968, On October subsequently, and sentenced two was, abortions two did not Appellee, however, years imprisonment. to five of sentence. on judgment Rather, from that appeal March a POHA petition alleging he filed 4, 1970, the anti-abortion statute is unconstitutional.
In of that we need not reach merits my view, issue—as does the has waived majority—for Page a direct this to take right litigate by failing claim Section 3 of the PCHA mandates that appeal. “[t]o for relief under this a must . . . eligible person act, . . . the error his conviction prove resulting [t]hat and has not been . . . Act of Janu- sentence waived.” P. L. ary P.S. (1965) 1580, §3, §1180-3 that an issue The further (Supp. 1972). provides act is waived if: “ The (1) petitioner knowingly understandingly been failed to raise it and it could have raised before at the on a habeas trial, corpus trial, appeal, or other proceeding proceeding actually conducted, or in a initiated under this prior proceeding actually act; the existence prove is unable to
“(2) petitioner his failure to justify circumstances extraordinary raise the issue. fail- There is rebuttable that a presumption a
“(c) to raise an issue is a knowing ure to appeal ruling failure.” Act of understanding January 25, 1966, P. L. 19 P.S. (Supp. 1972). (1965) 1580, §4, §1180-4 failed to from the Page appeal judgment
Plere, sentence. He has not asserted cir- any “extraordinary failure to raise the cumstances to Ms issue” justify no evidence has been direct offered appeal. Moreover, a failure to “presumption appeal to rebut *8 an is a knowing or to raise issue and understand- ruling similar Confronted with facts Common- failure.” ing Pa. 296 A. 2d 745-46 Parker, wealth “Under such in- we said, circumstances, (1972), attack his conviction and sentence stant collateral is foreclosed.”
I dissent.
Dissenting
Mb. Justice Nix:
I agree with. Justice Robebts’
conclusion
his dis-
senting
neither of the
opinion
appeals
before us
I
properly raised the constitutional
only
issue.
add
that it
long
has
been the rule of this Court
will
attempt
resolve constitutional
issues
unless
specific issue is before
the court
the resolution of
the issue
decision
absolutely
necessary
Binder v.
case.
Triangle Publications,
Pa.
Inc.,