judge accepted nolo contendere pleas
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- judge accepted nolo contendere pleas
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The opinion
GATES, Judge,
concurring:
I concur in the result reached by the majority, however, it is my view that appellant’s constitutional challenge to Section 13(a)(14) of the Controlled Substance, Drug, Device and Cosmetic Act 1 has not been properly preserved for appellate review and is therefore waived. Commonwealth v. Blair, 460 Pa. 31 , 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272 (1974).
The proper procedure for challenging the validity of a criminal statute is to file a pretrial motion to quash the indictment. Obviously, the purpose of resolving constitutional challenges prior to trial is to conserve time and expense if the challenge is successful. Ofttimes pretrial applications not only to quash but to suppress evidence, when successful, avoid the necessity for a trial. Thus it is imperative that these matters be presented in accordance with the pretrial rules.
Furthermore, former Pennsylvania Rule of Criminal Procedure 304 (replaced by Rule 306, effective January 1, 1978) provides that:
“All pretrial applications for relief shall be in writing
The reason for requiring a written motion is to ensure that the Commonwealth, trial, and appellate courts know the precise contentions raised so that they may respond with a *312 focused argument and decision. The Supreme Court in Commonwealth v. Keefer, 470 Pa. 142 , 367 A.2d 1082 (1976), indicated that the requirements of Rule 304 will not be insisted upon rigorously for the purpose of appellate review if an issue is clearly framed below, however, this dicta does not preclude our Court from finding a waiver instantly. I believe our recent decision in Commonwealth v. Hall, 267 Pa.Super. 204 , 406 A.2d 765 (1979) is controlling. In Hall we held that a Rule 1100 claim was not preserved since it was presented orally in a cursory manner and not in writing as Rule 306 clearly required. A fortiori, when a defendant fails to file a written pretrial motion challenging a statute as unconstitutionally vague or raise the issue before or at trial orally, but presents the issue for the first time in written post-trial motions, he has not adequately preserved the claim for appellate review. See Commonwealth v. Webb, 254 Pa.Super. 429 , 386 A.2d 25 (1978).
I would find that appellant waived his vagueness challenge to the statute in question. This result is mandated by Rule 306 and appellant should be required to comply in order to preserve his claim, otherwise the rules will be rendered meaningless.
. Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended, 35 P.S. § 780-113(a)(14).