Herbert L. Floum, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn Temin, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Pomeroy, J., concurs in the result. Jones, C. J., dissents. Nix, J., took no part in the consideration or decision of this case.
Appellant, William M. Heacock, was convicted by a jury of the voluntary manslaughter of Alvin Helmus and of assault and battery and aggravated assault and battery on Mrs. Marie Helmus.*fn1 Following denial of motions in arrest of judgment and for a new trial, concurrent prison sentences of three to ten years were imposed on each conviction. This one appeal followed.*fn2
The facts which give rise to this appeal are as follows. The Heacock and Helmus families lived in the same apartment building for approximately two and one-half years and were acquainted, generally amicably, for that period. However, on January 9, 1973, an argument between Heacock, superintendent of the apartment complex, and Helmus, a tenant who had recently been censured by the apartment management for loud conduct, broke out in the Heacock apartment purportedly over Heacock's refusal to name the complaining parties and Helmus' circulating a petition to remove Heacock. Marie Helmus, as a Commonwealth witness, testified that Heacock grabbed Mr. Helmus, took a gun from under his shirt and fatally shot Helmus. Heacock then turned the weapon on Mrs. Helmus, wounding her twice. The defense, pleading self-defense, presented testimony that
Helmus, armed with an ice pick, attacked Heacock and Heacock took a gun from a nearby closet and shot Helmus. Mrs. Helmus then took up the attack with a knife before Heacock shot her. Marie Helmus ran from the Heacock apartment and called the police.
When the police arrived, Heacock was sitting in his apartment with the gun used in the shooting on a table in front of him. The police seized the gun, which was in plain view, but, after arresting Heacock and removing all other persons from the apartment, the police conducted a warrantless search which revealed a second gun and a glove, matching the glove on decedent's hand, secreted in a closet. At the time police arrived, the decedent had one glove on and an ice pick in his hand.
A motion to suppress was filed and an evidentiary hearing ensued. Certain statements, not here relevant, and the gun used in the shootings were found to be admissible. However, the glove found in the closet was suppressed as the fruit of an illegal search. The second gun, found alongside the suppressed glove, was not specifically mentioned in the suppression order since, at the hearing, the Commonwealth asserted that it did not intend to introduce the gun at trial for any purpose and, therefore, there was no need to determine whether this gun should be suppressed.*fn3
Appellant asserts several assignments of error but only one requires discussion here. Inter alia, the appellant contends that the trial court erred in permitting the Commonwealth to question him, during cross-examination, concerning possession of the second gun. The Commonwealth concedes, as it must, that it was error for the assistant district attorney to, in any way, refer to the existence of the second gun. However, it argues that ...