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COMMONWEALTH v. PORTER (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
PORTER, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, Nos. 1083 to 1086, inclusive, in case of Commonwealth of Pennsylvania v. Samuel Porter.

COUNSEL

Harold L. Randolph, and Nix & Randolph, for appellant.

David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 229 Pa. Super. Page 316]

On November 3, 1972, the appellant, Samuel Porter, was convicted of Aggravated Robbery, Aggravated Assault and Battery, Burglary of a Motor Vehicle, and Violation of the Uniform Firearms Act by the lower court sitting without a jury. Post-trial motions for arrest of judgment and new trial were denied, and appellant was sentenced on March 2, 1973, to concurrent terms of imprisonment of 1 to 3 years for burglary; 2 1/2 to 10 years for robbery; 1 to 2 years for the firearm violation. Sentence was suspended on the assault and battery conviction.

The appellant raises three assignments of error: (1) that the evidence was insufficient to return a guilty verdict, (2) that the seizure of appellant's blood violated his Fourth Amendment rights, and (3) that the court below erred in admitting evidence of blood typing. A review of the record convinces us that the trial court did not so err, and accordingly, the judgment of sentence will be affirmed.

[ 229 Pa. Super. Page 317]

Viewing the evidence in a light most favorable to the Commonwealth, Commonwealth v. Portalatin, 223 Pa. Superior Ct. 33, 297 A.2d 144 (1972), the testimony established the following facts: On February 15, 1972, at 2:00 p.m., a meat delivery truck driver became the victim of a robbery at gunpoint. The complainant, Brooks McCollough, had just delivered a load of spareribs to a barbecue restaurant and had received a brown paper bag containing approximately $700.00 as payment. Mr. McCollough then returned to the cargo section of his truck, to prepare for his next delivery.

As he was bent over in the front of the cargo section, with his back to the door, Mr. McCollough felt the truck shake and heard a voice say, "Hold it; this is a stick-up". Mr. McCollough was frisked and the brown paper bag containing the cash payment was stolen from his hip pocket. Several seconds elapsed, when Mr. McCollough heard a shot, felt pellets strike his left hand, and heard footsteps running past the truck.

The complainant then turned to face the door and saw a double-barrelled, sawed-off shotgun lying on the floor. He stepped outside and saw two men running away from the truck. He returned to the truck, where he noticed fresh blood -- which had not been there before -- on the floor and one wall. Mr. McCollough notified the police and later received treatment at the nearest hospital for superficial wounds. His hand was intact, and did not bleed profusely at any time.

While at the hospital, Mr. McCollough was interviewed by Detective Linso. The complainant described one of his attackers as a black man, about 6 feet tall, wearing a brown leather jacket. The other wore a black leather jacket.

Detective Linso then received instructions to go to Temple University Hospital to interview the victim of another shooting. This victim was Samuel Porter, the appellant ...


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