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COMMONWEALTH v. SZULCZEWSKI (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
SZULCZEWSKI, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, June T., 1964, Nos. 138 to 142, inclusive, in case of Commonwealth of Pennsylvania v. James Eugene Szulczewski.

COUNSEL

Harry F. Swanger, for appellant.

Ronald L. Buckwalter, First Assistant District Attorney, with him D. Richard Eckman, District Attorney, for Commonwealth, appellee.

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

Author: Price

[ 233 Pa. Super. Page 391]

This appellant was indicted and convicted after a jury trial on charges of robbery, assault with intent to kill, aggravated assault and battery on a police officer, pointing a deadly weapon and violation of the Uniform Firearms Act. He was sentenced to imprisonment for a total term of 16 to 32 years. These charges arose from what was described by the lower court as "a bizarre chain of events" on the Pennsylvania Turnpike near Lancaster, Pennsylvania. On June 14, 1964, a vehicle in which appellant was a passenger accompanied by two accomplices was stopped by a Pennsylvania State Trooper for speeding. As this trooper was checking the vehicle, appellant drew a .38 nickel-plated revolver, held up the trooper and aided by his two accomplices took the trooper's gun and handcuffs. After removing the trooper some distance from the roadway, these three men handcuffed the trooper to a nearby tree. A second State Trooper, who happened upon the scene and stopped to check the first empty State Police cruiser, was subjected to the same treatment. A third State Trooper, who was investigating the long silence from the first two troopers, came to the scene and was also held up by the appellant and his accomplices. However, before he could be handcuffed, removed from the roadway and handcuffed to the tree, a fourth State Trooper arrived. Numerous shots were exchanged between the fourth State Trooper and the appellant, and in the course of this exchange of shots, the third State Trooper was wounded twice in the leg and the fourth State Trooper was shot in the face -- the bullet entering near his nose, passing through his neck and exiting through his chest.

[ 233 Pa. Super. Page 392]

After a massive manhunt, the appellant and his accomplices were apprehended. Both troopers subsequently recovered from their injuries. As would be expected, this incident received a great deal of publicity in all of the news media, particularly in the Lancaster County area, but to a lesser extent all over the Commonwealth of Pennsylvania.

Appellant and his accomplices were given a preliminary hearing on June 30, 1964, and were held for court on all charges. On July 24, 1964, this appellant filed a Petition for Change of Venue and also a Petition for Severance, both of which were denied by the lower court on August 25, 1964. On September 29, 1964, appellant was committed to Farview State Hospital following a sanity commission report and hearing.

Appellant's trial was commenced with the jury on September 20, 1965 -- well over a year from the date of the occurrences relating to his arrest and almost a full year from the date of his commitment to Farview State Hospital. His accomplices had pled guilty and were sentenced on September 21, 1964 -- one year less a day prior to this trial.

No post-trial motions were filed. However, his conviction has been followed by numerous proceedings in the state and federal courts which we need not detail here but which culminated in an Order entered by the Supreme Court of Pennsylvania on September 24, 1973, directing this court to permit an allowance of appeal nunc pro tunc. This direct appeal is now before us as a result of that Order.

Appellant makes numerous contentions. However, all but two of them are clearly waived since they were not raised in the lower court and are controlled by the Pennsylvania Supreme Court's decision in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Of the two remaining contentions, one is the alleged error of the lower court in denying ...


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