COM. v. WATLINGTON, 452 Pa. 524 (1973)

306 A.2d 892

Supreme Court of Pennsylvania.Submitted May 21, 1973.
July 2, 1973.

Appeals — Review — Questions not raised in court below — Failure to except to charge of trial judge — Pa. R. Crim. P. 1119(b).

1. On appeal by defendant following conviction of first degree murder, in which it appeared that defendant challenged the trial

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court’s failure to give a cautionary instruction regarding the testimony of a co-defendant; it was Held that since no objection was made to the trial court’s charge, as required by Pa. R. Crim. P. 1119(b), that issue was not properly before the appellate court.

2. Issues not raised at trial or in post-trial motions may not be raised for the first time on appeal.

Mr. Justice EAGEN concurred in the result.

Mr. Justice O’BRIEN filed a concurring opinion.

Before JONES, C. J., EAGEN, O’BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

Appeal, No. 28, May T., 1973, from judgment of sentence of Court of Common Pleas of Dauphin County, No. 1722 of 1972, in case of Commonwealth of Pennsylvania v. Tollie Watlington. Judgment of sentence affirmed.

Indictment charging defendant with murder. Before CALDWELL, J.

Verdict of guilty of murder in the first degree and judgment of sentence entered thereon. Defendant appealed.

Richard D. Walker, Public Defender, for appellant.

Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

OPINION BY MR. JUSTICE ROBERTS, July 2, 1973:

In the early morning of May 14, 1972, Herbert Riehl, while sitting in his car in Harrisburg, was shot and killed during the course of an apparent robbery attempt. Appellant, Tollie Watlington, and Thomas Epps were arrested and charged with murder. Appellant and co-defendant Epps were tried jointly before a jury and adjudged guilty of first degree murder. Both were sentenced to life imprisonment.

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On this direct appeal, appellant challenges the trial court’s failure to give a cautionary instruction regarding the testimony of co-defendant Epps. Appellant argues that the jury should have been instructed to view this testimony, coming from a “corrupt source,” with extreme scrutiny. Cf. Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969).

However, since no objection was made below to the trial court’s charge,[*] that issue is not now properly before this Court. Pa. R. Crim. P. 1119(b) provides: “No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate.” As we stated in Commonwealth v. Jennings, 442 Pa. 18, 24, 274 A.2d 767, 770 (1971), “. . . appellant’s failure to take . . . specific exception to . . . the charge, as required by Pa. R. Crim. P. 1119(b), forecloses our consideration of this issue on appeal.” See also Commonwealth v. Sullivan, 450 Pa. 273, 275-76, 299 A.2d 608, 609-10 (1973).

Since issues not raised at trial or in post-trial motions may not be raised for the first time on appeal, Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972), appellant’s claim must be decided adversely to him.

Judgment of sentence affirmed.

Mr. Justice EAGEN concurs in the result.

CONCURRING OPINION BY MR. JUSTICE O’BRIEN:

I concur in the result for the reason that I believe there was no basic and fundamental error requiring the

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grant of a new trial. See Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968) and my concurring opinion i Commonwealth v. Sullivan, 450 Pa. 273, 281, 299 A.2d 608-613 (1973).