Opinion
April 21, 1972.
May 25, 1972.
Appeals — Question not raised in court below — Evidence — Good character and reputation of victim of murder.
On appeal by defendant following conviction of second degree murder, in which it appeared that defendant contended that the trial judge committed reversible error when he permitted the Commonwealth to introduce testimony concerning the good character and reputation of the victim; and that defendant failed to object to the testimony in question when it was offered and made no mention of this issue during argument on his post-trial motions; it was Held that defendant could not raise the issue for the first time on appeal.
Mr. Justice NIX and Mr. Justice MANDERINO concurred in the result.
Mr. Justice POMEROY took no part in the consideration or decision of this case.
Argued April 21, 1972. Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, NIX and MANDERINO, JJ.
Appeal, No. 353, Jan. T., 1971, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1969, No. 1133, in case of Commonwealth of Pennsylvania v. Edward J. Donovan. Judgment of sentence affirmed.
Indictment charging defendant with murder. Before McDERMOTT, J., without a jury.
Finding of guilty of murder in second degree; defendant's motion for new trial denied and judgment of sentence entered. Defendant appealed.
Yale B. Bernstein, with him William J. Brickley, and Brickley, Torpey Bernstein, for appellant.
William P. Boland, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Appellant, Edward J. Donovan, at age sixteen, was found guilty of second-degree murder on February 2, 1970, after a nonjury trial. The Commonwealth had certified that the case was not one of first-degree murder. After denial of his post-trial motions, appellant was sentenced to a term of six to twenty years.
On appeal, appellant raises only one issue. He contends that the trial judge committed reversible error when he permitted the Commonwealth to introduce testimony concerning the good character and reputation of the victim, Arthur Eliot, a seventeen-year-old boy whom appellant had stabbed during an altercation on a public street.
The argument is made with reference to the testimony of Arthur Eliot's father, mother, and some of his high school friends, all of whom testified in the Commonwealth's case in chief that Arthur was a peaceful, law-abiding youngster, who did not belong to any gang or engage in fighting. Appellant contends that the admission of such testimony violates the well-established principle of law that evidence showing the character or reputation of the deceased may not be given by the Commonwealth in its case in chief before such character or reputation has been attacked by the defendant. Commonwealth v. Castellana, 277 Pa. 117, 121 A. 50 (1923).
However, the appellant failed to object to the testimony in question when it was offered and made no mention of this issue during argument on his post-trial motions. He cannot raise the issue for the first time on appeal: Commonwealth v. Jacobs, 445 Pa. 364, 367, 284 A.2d 717, 719 (1971); Commonwealth v. Bittner, 441 Pa. 216, 221, 272 A.2d 484, 487 (1971).
Judgment of sentence affirmed.
Mr. Justice Nix and Mr. Justice MANDERINO concur in the result.
Mr. Justice POMEROY took no part in the consideration, or decision of this case.