Ricardo C. Jackson, Harold L. Randolph, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., dissents. Nix, J., took no part in the consideration or decision of this case.
On July 15, 1970, Larry Smalls, the appellant herein, was convicted by a jury of aggravated robbery, burglary and murder in the first degree. Subsequently, a court en banc denied motions in arrest of judgment and/or a new trial, and a sentence of life imprisonment was imposed on the murder conviction. On the robbery and burglary convictions, terms of probation aggregating 40 years were imposed. Appeals from the probation orders were filed in the Superior Court and were later certified here. An appeal from the judgment of sentence imposed on the murder conviction was filed in this Court. The
three appeals pose the same legal issues and will be disposed of in this one opinion.
That the trial evidence was sufficient to establish beyond a reasonable doubt that Smalls committed the crimes of which he stands convicted is not now challenged. An examination of the record discloses that from uncontradicted testimony offered by the Commonwealth, the jury was warranted in finding that on June 25, 1969, Smalls and four other young men, acting in concert, robbed a retail grocery store at 5416 Westminster Avenue in Philadelphia, and during the robbery Smalls shot Roger Crudup, the proprietor, in the head and the wound caused the victim's death a few hours later.
Smalls says three errors occurred in the trial process, and a new trial should be granted.
First, it is said the trial court erred in permitting the Commonwealth to introduce into evidence a typewritten confession Smalls made and signed during police custody. However, this alleged error was not properly preserved in the trial court for appellate review.
Pre-trial, Smalls attempted unsuccessfully to have this evidence suppressed and also entered an objection to its use during the trial. But, its evidentiary use was not assigned as error either in the written motion for a new trial, or during the oral argument on the new trial motion before the court en banc below. Under the circumstances, the issue will not be reviewed here. See Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).
Next, Smalls assigns as error the evidentiary use at trial of a tape recording of his confession. The attack on this particular evidence is two-pronged: (1) it was the product of an unnecessary delay between the arrest and arraignment in violation of Rule 118 ...