explaining abolition of indictment by grand jury in Pennsylvania beginning in 1976
How later courts described this case
- explaining abolition of indictment by grand jury in Pennsylvania beginning in 1976
Written by the judges who cited it.
The opinion
PRICE, Judge,
dissenting:
I would affirm the judgment of sentence, not because I disagree with the majority’s treatment of the merits of appellant’s claim of error in the cross-examination of two defense witnesses as to their religious beliefs, but because I believe Commonwealth v. Mitchell, 464 Pa. 117 , 346 A.2d 48 (1975), controls, and that appellant has waived the argument he now advances. Nothing could be clearer than the announcement in Mitchell that it is a fundamental principle of appellate review that we may not reverse a judgment or decree on a theory that u as not presented to the trial court. It is also clear that appellant’s theory now advanced was not presented to the lower court, nor does the lower court’s citation of Commonwealth v. Mimms, 232 Pa.Super. 486 , 335 A.2d 516 (1975), cure this defect. Our majority decision in Mimms does not rely upon nor cite 28 P.S. § 311. Furthermore, assuming the lower court’s awareness of the statute does not cure the requirement that the specific theory must be presented to the lower court. We assume, in the nature of judicial knowledge and notice, that the lower court knows all the statutes and law of Pennsylvania and such a procedure would render the whole doctrine of waiver a nullity. This we can not do.
I must also note that I believe our decision in Mimms was, and is, correct. I therefore join the majority in distinguishing the case today, but do not join Judge HOFFMAN’S reaffirmation of belief as expressed in the majority opinion. (247 Pa.Super. at 411 note 8, 372 A.2d at 892, note 8)
*413 1 find no merit to appellant’s remaining assignments of error.
I would affirm the judgment of sentence.