decided: June 5, 1979.
COMMONWEALTH OF PENNSYLVANIA
RANDOLPH CLAYTON, APPELLANT
Nos. 6 & 7 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County at July Term, 1976 Nos. 1284-87.
William J. Mazzola, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Div., for Commonwealth, appellee.
Hoffman, Eagen and Hess, JJ.*fn*
Author: Per Curiam
[ 266 Pa. Super. Page 512]
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.
[ 266 Pa. Super. Page 513]
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 11 1/2 hours of deliberation and jury reported a deadlock).
*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania and Judge Warren K. Hess of the Court of Common Pleas of Berks County, Pennsylvania, are sitting by designation.