Commonwealth v. Didyoung

BROSKY, Judge,

concurring and dissenting:

I agree with the majority’s disposition of the first issue that appellant was not denied his right to a fair and impartial jury trial despite a juror’s failure to disclose during voir dire that that juror’s uncle, deceased since 1968, had been a police officer and that the spouse of the juror’s cousin had been the arresting officer.

The majority states the second issue to be whether the trial court abused its discretion by imposing an excessive sentence. It is true that this is the “issue” which appellant has briefed to this court in the argument portion of his brief and which the majority proceeds to address. However, it is equally apparent that appellant’s claim of excessiveness is not the issue properly before us. Instead, appellant’s sec*355ond issue broached to us in the “Statement of Questions Involved” portion of the brief is as follows:

B. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION FOR RECONSIDERATION OF THE SENTENCE WITHOUT A HEARING?

As stated above, this issue has not been briefed and is therefore waived. Pa.R.App.P. 2116(a) (“This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.”); Rago v. Nace, 313 Pa.Super. 575, 460 A.2d 337 (1983). See also, Commonwealth v. Stufflet, 322 Pa.Super. 176, 469 A.2d 240 (1983); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982). Conversely, the claim briefed by appellant and addressed by the majority is similarly not before us as it was “not set forth in the statement of questions involved or suggested thereby.” Rule 2116(a), supra.

Because of the foregoing, my agreement with the majority to affirm the judgment of sentence is limited to the majority’s correct disposition of the first and only issue properly before us.