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COMMONWEALTH v. MCCRAY (06/14/68)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 14, 1968.

COMMONWEALTH
v.
MCCRAY, APPELLANT

Appeal from judgment of Court of Quarter Sessions of Philadelphia County, May T., 1966, No. 4657, in case of Commonwealth of Pennsylvania v. Michael McCray.

COUNSEL

Aurelio Munoz, Assistant Defender, with him Albert Branson and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

James J. Fitzgerald, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 212 Pa. Super. Page 458]

Michael McCray, appellant, was convicted of aggravated robbery*fn1 by the court below sitting without a jury. The sole contention raised on this appeal from that conviction is that appellant's counsel was deprived of his right to a summation and that, under Commonwealth v. McNair, 208 Pa. Superior Ct. 369, 222 A.2d 599 (1966), a new trial is required.

In McNair, this court specifically noted that the defendant's counsel requested and was refused the privilege of summation at the conclusion of the evidence. Supra, at 371. It was further noted that the right of summation is an important substantive right and that the denial "was an abridgment of the defendant's constitutional right to full representation." Accordingly, that judgment was reversed and a new trial granted.

In the instant case the record reveals no request for a summation by either appellant or his counsel. At the close of the trial, counsel indicated he was submitting motions for deferment of sentence and a new trial and then stated: "I can't go any further than I submitted a reasonable doubt." [sic] Although the trial court said: "You can argue it now" counsel replied, "I have covered it." In the instant case, there is totally lacking the request for, and denial of, summation that was present in McNair.

It has been frequently stated that a defendant may waive his rights and that, absent unusual circumstances, rights effectively waived cannot be raised for the first time on appeal. "Counsel may not remain

[ 212 Pa. Super. Page 459]

    silent and take his chance of a verdict and then, if it is adverse, complain of matters which could have been immediately rectified." Commonwealth v. Haas, 198 Pa. Superior Ct. 227, 232, 181 A.2d 908 (1962).

We have been referred to no Pennsylvania cases which deal with the waiver of the right to summation. However, there is authority in other jurisdictions that this right may be waived.*fn2

In sum, the record in the instant case shows that: No request for summation was made by appellant or his counsel; the trial court offered counsel the opportunity to argue and it was refused; the only question which counsel indicated he could argue was that of reasonable doubt and this had been previously covered. Under these circumstances, we hold the right to summation was fully and effectively waived and may not be raised for the first time on appeal.

Judgment affirmed.

Disposition

Judgment affirmed.


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