Sidney Ginsberg, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellant, Albert Brown, was found guilty by a jury in Philadelphia on August 19, 1974 of murder of the first degree and criminal conspiracy. Post verdict motions were filed and denied. Appellant was sentenced to life imprisonment on the murder conviction and to five to ten years imprisonment on the conspiracy conviction; sentences to run concurrently. These appeals followed.*fn1
On November 11, 1973, Domingo Martinez was attacked and stabbed to death outside a tavern in Philadelphia. Although the Commonwealth conceded at trial that Brown did not do the actual stabbing, it contended that he combined with Harold Roux, Herbert Pennington, Clenzo West, and Raymond McClendon to beat and rob Domingo Martinez, and that during the commission of these crimes, Martinez was fatally wounded by one of the conspirators. The Commonwealth presented the following evidence in support of that position. Roux, Pennington, West, McClendon and Brown were inside the Oxford Street Bar when Martinez entered to buy a six pack of beer and a pack of cigarettes. The cigarette machine was not functioning properly and Martinez complained to the bartender. Pennington went over to Martinez, told him to stop complaining and started to punch him in the face. West stopped the fighting saying, 'Wait until he gets outside, you know, get a head."*fn2 Harold Roux, then standing about ten feet away from the scuffle, produced a knife and said, "I'm going to stab this mother fucker." Martinez left the bar and all five defendants followed. In a vacant lot next to the tavern, Martinez was attacked by all the pursuers simultaneously during which attack he was fatally stabbed. During the fracas, Brown was seen striking the deceased several times on the head with a trash barrel and repeating "They broke my leg, they broke my leg."*fn3
Brown first argues that reversible error was committed when the assistant district attorney in his summation to the jury, referred to the attackers as, inter alia, a pack of wolves. Whatever merit that argument may have, it is not now before this Court. No objection
to the comments was made either during the summation or at its completion and the alleged error was first brought to the court's attention through post trial motions. Since no objection was timely made, this issue has been waived. Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974).
Brown's second assignment of error is that the assistant district attorney, in his summation to the jury, made improper comment concerning Brown's failure to testify in his own behalf. During summation, Brown's counsel stated, "My client instructs me to advise you -- I am telling you as defendant's lawyer -- that I am agreeing that the defendant did strike Mr. Martinez with a trash basket -- not the one in the picture but we will get to that in a minute."*fn4 During his summation, the assistant district attorney responded to this as follows:
"Very nice. How easy is it for me to cross-examine that evidence that is offered by Mr. Ginsberg? I can't ask any questions about it. When he says, 'My client instructs me to say that he did take the trash can, I'm not going to tell you what kind, but he did beat up the man or he ...