Commonwealth v. Clayton

405 A.2d 936, 266 Pa. Super. 511, 1979 Pa. Super. LEXIS 2396

• Court: Superior Court of Pennsylvania
• Decided: June 5, 1979
• Docket: Nos. 6 and 7, Special Transfer Docket
• Status: Published

Opinion

PER CURIAM:

This is an appeal from judgments of sentence imposed upon conviction of third degree murder, conspiracy, and a weapons offense. Appellant now contends that: (1) the evidence was insufficient to justify the court’s instruction concerning the inference of guilt which may be drawn from the accused’s flight, and (2) the court erred in giving an instruction consistent with Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), because the jury was not deadlocked.

The first contention is waived because at trial the defense counsel objected to the evidence of flight only on the grounds that the defendant had admitted to shooting the victim with a shotgun. Because the reason now argued to us was not argued at trial, it is waived. Commonwealth v. Stoltzfus, 462 Pa. 43, 60, 337 A.2d 873, 881 (1975).

The second contention is without any basis in fact. Before the court gave the Spencer charge, the jury had deliberated over twelve hours and informed the court that it had been unable to agree upon a verdict. See Commonwealth v. Spencer, supra, 442 Pa. at 337-38, 275 A.2d at 304-05. See also Commonwealth v. Lambert, 450 Pa. 130, 299 A.2d 240 (1973) (Spencer charge correctly given after IIV2 hours of deliberation and jury reported a deadlock).

Judgments of sentence affirmed.