A. Martin Herring, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Bonnie Leadbetter, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurred in the result. Roberts, J., filed a concurring opinion in which Nix and Manderino, JJ., joined.
Appellant, Willie Frazier, was tried by a judge and jury and convicted of murder in the third degree. Post-trial
motions were denied and appellant was sentenced to a term of three to twenty years in a state correctional institution. This appeal followed.
The facts surrounding this appeal are as follows. On July 4, 1974, appellant and the decedent, Calvin Bradsher, while attending a barbeque picnic, became embroiled in several arguments. After the picnic appellant and decedent continued their arguing during which time several threats were made which finally resulted in the decedent being shot and killed by appellant. At trial appellant's self-defense claim was rejected and he was found guilty of murder in the third degree; hence this appeal.
Appellant first argues that he was prevented from cross-examining the Commonwealth witnesses concerning the decedent's reputation for violence. This, of course, was relevant to appellant's self-defense claim. The record in the instant case reveals that appellant's counsel sought to ask the Commonwealth witness if he knew the decedent and whether he knew others who knew the decedent; at this point the Commonwealth objected. A side bar conference was held and defense counsel ended his questioning. The record does not indicate that appellant's counsel lodged his objection to the evidentiary ruling, or even attempted to continue his questioning. Based upon these facts, we are of the opinion that defense counsel failed to lodge a proper objection in order to preserve the issue for appellate review. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Moreover, the line of questioning that appellant now wishes to complain about was outside the scope of the witnesses' direct examination and, therefore, impermissible.
Lastly, appellant argues that the trial court's charge on both intoxication and self-defense as defenses were in error because the burden of persuasion was
placed upon appellant and this, according to Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974), was erroneous. We need not decide appellant's argument in the facts of the instant case. Appellant, as he admits in his brief, failed to note a proper exception to the court's charge in either area and is, therefore, now prevented from raising the issue. Appellant claims that no basis existed for his objection; however Commonwealth v. Rose, supra, was decided July 1, 1974, six months prior to appellant's trial. See ...