Appeal from order of Court of Common Pleas of Somerset County, Nov. T., 1964, No. 5, in case of Commonwealth v. Louis Wegrzyniak.
Taylor B. Coffroth, for appellant.
Alexander Ogle, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Roberts.
On July 3, 1965, Louis Wegrzyniak was convicted by a jury in Somerset County of murder in the second degree. No post-trial motions were filed, and a prison sentence was imposed. No appeal was entered.
On April 5, 1966, Wegrzyniak filed a petition seeking post-conviction relief which the trial court dismissed without conducting an evidentiary hearing. An appeal from that order is now before us.
The trial record discloses the following pertinent facts.
In the early morning of January 9, 1965, Wegrzyniak fatally shot his wife during a quarrel in their home. The police arrived within minutes after being summoned by a next-door neighbor who heard the argument and the firing of shots. Wegrzyniak, brandishing a shotgun, retreated to the second floor of the house with his two minor children and refused repeated requests to give himself up or to permit the police to ascend to the second floor. About forty-five minutes later, after the police had shot a quantity of tear gas into the building, Wegrzyniak jumped from a second-story window and was taken into custody. The police entered the house wearing gas masks and seized certain guns. The house was then locked and an order issued that no one was to enter the premises.
During the ensuing weeks the police returned to the house involved on several occasions looking for evidence. Expended bullets, doors showing holes caused by bullets, and some flooring with blood marks thereon were seized and removed from the premises. At no time were the police armed with a search warrant. The guns, discharged bullets, doors and flooring seized, as before related, were introduced into evidence by the
Commonwealth at trial. It is now urged that the use of this evidence violated constitutional due process.
An examination of the record discloses that the appellant did not ask that the now challenged evidence be suppressed, nor was there any objection to its use at trial. Under these circumstances, the admissibility of the evidence may not be challenged at this late date. Commonwealth v. Gordon, 431 Pa. 512, 246 A.2d 325 (1968), and Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966). Moreover, assuming the evidence was seized under impermissible constitutional standards, we are convinced beyond a reasonable doubt that ...