James P. Geoghegan, Norristown, for appellant.
William T. Nicholas, Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appellate Div., Bert M. Goodman, Asst. Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring opinion. Pomeroy, J., concurs in the result. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
Franklin Arthur Lewis, appellant, was charged with murder, voluntary manslaughter and involuntary manslaughter in the death of William Irving Braxton on June 5, 1974. He was convicted by a jury of voluntary manslaughter in November 1974. After his post-trial motions were denied, appellant was sentenced to a term of four to ten years imprisonment. This direct appeal was then filed.*fn1
Appellant's first asserted ground for relief is that the court below erred by denying his motion to suppress testimony concerning certain statements which he made while in police custody. There is no merit to this claim. First, appellant has waived any argument based upon our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), because this was not asserted pre-trial as a grounds for suppression. Commonwealth v. May, 466 Pa. 524, 353 A.2d 815 (1975); Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975).
Second, the court below concluded that these statements were not obtained in violation of any of appellant's rights and the record supports this conclusion. Appellant was given the Miranda warnings several times. There was no evidence of any physical coercion, threats or abuse. The total time of actual questioning was only 45 minutes. Where there is evidence to support the suppression court's findings, we will sustain his conclusions. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975).
Appellant's second argument is that the court erred in refusing a motion for a directed verdict on an offensive weapons charge following the opening address by the prosecutor. This argument is without merit because appellant suffered no prejudice. His demurrer to this count in the indictment was sustained at the close of the Commonwealth's evidence. Moreover, the court was not required to entertain such a motion at that point in the trial. See Commonwealth v. Heller, 147 Pa. Super. 68, 24 A.2d 460 (1942).
The next argument presented involved the testimony of Dr. Robert Catherman, a coroner. It is argued that the Court committed error in allowing Dr. Catherman to state his opinion as to the time of death. This opinion, it is urged, was inadmissible because it was an estimation based upon his observation that rigor mortis appeared to have set in by the time a picture of the body was taken at the scene. We find that there was no error. Dr. Catherman was qualified as an expert in forensic pathology and he gave the facts upon which he based his conclusion as to the time of death. We have previously allowed such testimony. Commonwealth v. Tenbroeck, 265 Pa. 251, 108 A. 635 (1919); see Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960); Commonwealth v. Sauders, 390 Pa. 379, 134 A.2d 890
(1957). Appellant's objections are not related to the admissibility of this opinion but only to its weight. The weight of this opinion, as with any expert's testimony, is for the jury. See Davis v. Southern Surety Co., 302 Pa. 21, 153 A. 119 (1930).
The admission into evidence of appellant's shoe is also assigned as error. This is without merit. The shoe had evidentiary value considering the Commonwealth's theory of the case and there was nothing about it which could prejudice appellant. Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973).
We also find no merit in appellant's fifth assignment of error. Appellant there argues that the testimony of a police detective that other persons were eliminated as suspects should not have been permitted. However, appellant himself initiated this subject on cross-examination and this question on re-direct by the Commonwealth was necessary to dispel any unfair inferences arising from appellant's raising of this issue.
Next, appellant argues that the exclusion from evidence of the recordings of two telephone calls to the Lower Merion Township Police received about the time of the killing was error. The first call, received, at 2:07 o'clock a. m., was from a male and stated, "I got one of them bastards. I am going to get the rest of them." At 2:26 o'clock a. m. the second call came in with the speaker saying, "I got one of them /--. You will find his body in Ardmore. Good-by." Appellant asserts that in this case where all the evidence was circumstantial, these calls could have aided the jury in its deliberation. The trial court excluded these recordings and transcripts thereof on grounds that they were hearsay. We hold that the court's action was proper.
These calls were undoubtedly hearsay, but such a conclusion does not end our ...