decided: September 19, 1973.
Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1971, No. 867, in case of Commonwealth of Pennsylvania v. Steven Thomas York.
Ricardo C. Jackson, for appellant.
Linda West Conley, James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Roberts.
[ 453 Pa. Page 318]
Steven Thomas York appeals from the judgment of sentence imposed following his conviction by a jury of murder in the second degree. York did not testify at trial, and the court instructed the jury this was his constitutional right and no adverse inference should be drawn therefrom.*fn1 The sole assignment of error is that
[ 453 Pa. Page 319]
such an instruction, in the absence of a request by the defendant, is constitutionally impermissible.
The record discloses that no exception was entered to the charge and, more importantly, the instruction now challenged was not assigned as error in the motion for a new trial filed in the trial court. Under such circumstances, the complaint will not be entertained on appeal. See Commonwealth v. Bittner, 441 Pa. 216, 272 A.2d 484 (1971).
Concurring Opinion by Mr. Justice Roberts:
I agree that the judgment of sentence should be affirmed. Appellant, represented by counsel at trial, interposed no objection to the allegedly infirm charge, and, therefore, is precluded from challenging on this appeal the propriety of the court's charge. Pa. R. Crim. P. 1119(b); Commonwealth v. Watlington 452 Pa. 524, 306 A.2d 892 (1973).