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COMMONWEALTH PENNSYLVANIA v. SAMUEL DUNCAN (01/28/77)

decided: January 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL DUNCAN, APPELLANT



COUNSEL

Daniel M. Rendine, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Eric B. Henson, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 473 Pa. Page 65]

OPINION OF THE COURT

Appellant Samuel Duncan was indicted for murder, voluntary manslaughter and involuntary manslaughter. His pre-trial motion to suppress evidence was denied. Appellant was tried before a jury in February, 1975 and was found guilty of murder of the third degree. After post-trial motions were denied, appellant was sentenced to 8 to 20 years imprisonment. This appeal followed.*fn1

Appellant raises the following claims: (1) the admission into evidence at trial of testimony transcribed at his preliminary hearing violated the hearsay rule and the sixth amendment of the United States Constitution; (2) oral statements made to the police by appellant should not have been admitted into evidence because the record does not support a finding that such statements were ever made; (3) oral statements admitted at trial were obtained in violation of Pa.R.Crim.P. 118 (now rule 130); (4) appellant's motion for mistrial following the Commonwealth's opening statement should have been

[ 473 Pa. Page 66]

    granted; (5) there was insufficient evidence to submit the case to the jury.

The first four claims have been waived because they were not specifically raised in written post-trial motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Appellant's last claim has been preserved for appeal.*fn2 However, upon review of the record we conclude that the trial court properly submitted the case to the jury and we affirm judgment of sentence.

The test to be applied in ruling on a demurrer is whether the evidence and all reasonable inferences therefrom are sufficient to support a finding by the jury that the defendant was guilty beyond a reasonable doubt.*fn3 The Commonwealth's case consisted of the testimony of an eyewitness,*fn4 Ms. Ellery Harris, and two statements made to the police by appellant after he was arrested.

[ 473 Pa. Page 67]

Ms. Harris testified that she, appellant and decedent were at the home of her common-law brother-in-law on the evening of May 23, 1974. Appellant and decedent began arguing over a ten dollar debt appellant owed Ms. Harris. Appellant left the premises and returned with a knife. Decedent disarmed appellant who said, "I was only playing with you." ...


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