D. M. Masciantonio, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., concurs in the result.
Appellant Donald Branham was tried before a jury in the Court of Common Pleas, Philadelphia County and convicted of murder of the first degree and aggravated robbery in the shooting death of one Paul Palovcak at the victim's place of business. After denial of post-trial motions by a court en banc, Branham was sentenced to life imprisonment on the murder indictment and this direct appeal followed.*fn1
Appellant initially alleges that his oral admissions and signed statements were obtained by police as a result of an unnecessary delay between the time of arrest and preliminary arraignment, and therefore should have been suppressed as violative of our mandate in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Pennsylvania Rule of Criminal Procedure 130. A review of this record, however, clearly establishes that this issue has not been properly preserved for appellate review and therefore need not be considered here.
Although there was an extensive pre-trial suppression proceeding appellant did not raise the question of an unreasonable delay.*fn2 Interestingly, even after the issue was called to the attention of the defense by the suppression court's gratuitous finding that there was no unreasonable delay,*fn3 the defense nevertheless did not pursue
this claim at trial. Nor was the violation of Rule 130 raised in the written post-trial motions filed on appellant's behalf or during the argument before the court en banc upon those motions.*fn4 It is equally clear from the opinion of the court en banc that they also did not perceive this issue to have been raised before them. Under these circumstances it is clear that the issue has been waived. Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); Commonwealth v. Spriggs, 463 Pa. 375, 344 A.2d 880, 882 (1975); Commonwealth v. Wright, 460 Pa. 247, 332 A.2d 809, 811 (1975).
Appellant next asserts that the failure of the Commonwealth to disclose at trial an alleged prior discrepancy in the testimony by one of its eye-witnesses denied appellant due process of law and constituted reversible error.
One Nicholas Arcaro testified that shortly after he arrived at Mr. Palovcak's bar, approximately 8:20 P.M., on October 2, 1974, two males entered the premises. One immediately walked behind the counter and stood near the cash register; the other faced Palovcak, pointed a gun and ordered him not to move. When Palovcak reached under the counter, the assailant with the gun fired one shot and ran out the door.*fn5 As the second intruder was attempting to retreat through the side door, he was shot twice in the back by Palovcak. The witness stated that he did not have an adequate opportunity to identify ...