Commonwealth v. Ashford

302 A.2d 388, 223 Pa. Super. 413, 1973 Pa. Super. LEXIS 2141

Opinion

Opinion

Per Curiam,

This appeal raises the question of whether basic and fundamental error was committed by the trial judge in his charge to the jury defining the offense of aggravated assault and battery without likewise defining the lesser includible offense of assault and battery. Defense counsel took no exception to this portion of the charge.

The issue presented herein has been considered recently in two decisions of our Supreme Court. While recognizing that the precise charge was “incorrect”, the Supreme Court held that “. . . appellant’s failure to take a specific exception to this portion of the charge, as required by Pa. R. Crim. P. 1119(b), forecloses our consideration of this issue on appeal. Commonwealth v. Jennings, supra at 24, 274 A. 2d at 770.” Commonwealth v. Sullivan, 450 Pa. 273, 275-76, 299 A. 2d 608, 610 (1973).

We, therefore, affirm the judgment of sentence.