No. 1156 October Term 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia, Criminal Section, Trial Division, at Nos. 1026 and 1027 May Session 1976.
Stephen F. Ritner, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn*
[ 280 Pa. Super. Page 295]
George Stevenson, appellant, was tried and convicted by a jury in the Court of Common Pleas of Philadelphia of simple assault and rape.*fn1 Judgments of sentence of not less than ten nor more than twenty years imprisonment and two years probation were imposed. This appeal followed.
Stevenson argues the court's charge to the jury "excluded and ignored crucial, material facts which were the basis of the defense case." In support of the argument, Stevenson refers to two sections of the court's charge and details the evidence said to have been ignored by the court. We need not consider the merits of this argument as no objection to the charge on this ground was made at trial and, hence, the issue is waived. Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978); Pa.R.Crim.P. 1119.
Stevenson argues that the following portion of the court's charge to the jury was erroneous:
"Now with respect to the verdict, it must be unanimous, the Jury's verdict must be unanimous to be valid."
Counsel objected to this portion of the charge, and, according to Stevenson's brief filed with this appeal, requested the following instruction be given to correct the error.
"Your verdict has to be unanimous, all twelve of you have to agree on a verdict of guilty or not guilty. That does not mean that you cannot have your own opinion. Discuss your opinion amongst yourselves and try to resolve those opinions if there is a difference of opinion. If there is not then no resolution is necessary."
Stevenson asserts that, since the requested instruction was not given by the court, "the jury was left with the mistaken impression that if they did not have a unanimous verdict, it would not be valid."
[ 280 Pa. Super. Page 296]
Stevenson overlooks the fact that the requested instruction was given during the charge just prior to the allegedly erroneous instruction. More precisely, the requested instruction appears two pages before the allegedly erroneous instruction in the trial record. Moreover, reading the charge as a whole, as we must, Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), we are convinced the jurors were not misled into thinking they must give up their individual opinions as to guilt or innocence.
Next, Stevenson argues the trial court made "unfair and prejudicial comments" in that it asked questions "that were calculated to emphasize evidence damaging to the defendant." Stevenson makes reference to four specific incidents during trial. Of the four, we need only consider two since, in the other two instances, no objection to the ...