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COMMONWEALTH v. MANGAN (09/21/71)

decided: September 21, 1971.

COMMONWEALTH
v.
MANGAN, APPELLANT



Appeal from order of Court of Common Pleas of Luzerne County, April T., 1963, Nos. 141-B and 141-C, in case of Commonwealth of Pennsylvania v. John L. Mangan.

COUNSEL

Bruce S. Miller, Assistant Public Defender and Peter J. Webby, Public Defender, for appellant.

Charles D. Lemmond, Jr., First Assistant District Attorney, and Blythe H. Evans, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J. Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Concurring Opinion by Spaulding, J. Hoffman, J., joins in this concurring opinion.

Author: Montgomery

[ 220 Pa. Super. Page 55]

In a non-jury trial before Hon. Richard L. Bigelow, Judge, appellant, John L. Mangan, was tried jointly with Kenneth Carlin and Bernard Lynch. Mangan and Carlin were found guilty of robbery while armed, robbery by violence, burglary and larceny. Lynch was found guilty of burglary. All three were found guilty of conspiracy to do an unlawful act.

Appellant's motion for a new trial was granted on the burglary, larceny, and conspiracy convictions but

[ 220 Pa. Super. Page 56]

    denied on the other charges, as were his motions in arrest of judgment. Judgments of sentence were imposed and no appeals were taken. However, subsequently, as a result of a post conviction hearing, he was permitted to appeal nunc pro tunc, which brings the matters before us at this time.

Appellant, now, for the first time, questions the legality of the arrest warrant under which he was apprehended and the subsequent search of his wife's automobile resulting therefrom. Not having raised these questions in the court below, either at the trial or at the post conviction hearing, they will not be considered on appeal. Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970); Commonwealth v. Scoleri, 432 Pa. 571, 248 A.2d 295 (1968); Commonwealth v. Matcheson, 215 Pa. Superior Ct. 371, 259 A.2d 174 (1969).

The same reason compels us to refrain from passing on the question raised as to the legality of the confrontation of appellant with the victim of the robberies at the police station and the alleged conflict arising from the dual representation of appellant and a co-defendant by the same counsel.

The only assignments of error set forth in appellant's brief under the heading "Statement of Questions" that will be considered on this appeal are those which relate to questions raised below, i.e., "(4) Whether the lower court erred in allowing into evidence the out-of-court statements of Kenneth Carlin and Bernard Lynch as evidence against the defendant when these two co-defendants were not subject to cross-examination by the defendant"; and "(5) Whether the lower court erred in allowing the introduction at trial of a tacit admission by defendant."

The evidence objected to consisted of two signed confessions obtained from co-defendant Lynch, and two confessions, one oral and one written, obtained from ...


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