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decided: October 5, 1978.


No. 63 January Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Indictment No. 32, July Sessions, 1967


Barbara R. Muehleib, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Larsen, J., concurs in the result.

Author: Pomeroy

[ 481 Pa. Page 471]


Appellant Larry Horsey pleaded guilty in July, 1969, to an indictment charging him with the murder of one John Boykin in Philadelphia on March 23, 1967. A three-judge court found that the crime was murder in the first degree*fn1 and sentenced Horsey to life imprisonment.

[ 481 Pa. Page 472]

In May, 1975, by means of a proceeding under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. ยงยง 1180-1 et seq. (Supp.1978), appellant obtained leave to file and subsequently did file post-trial motions nunc pro tunc, arguing that the finding of first degree murder was unsupported by the evidence or contrary to law. The court below denied relief, and appellant brought this appeal.*fn2

Appellant in this Court renews his contention that the evidence was insufficient. We do not agree. The careful opinion of the trial judge in support of denial of the post-trial motions analyzes the evidence at the degree of guilt hearing and concludes that it would support the following findings of fact: (1) Horsey and one Lionel Johnson agreed to commit a robbery and attempted to commit a robbery by holding up the oil delivery truck of the victim, John Boykin; (2) Boykin resisted the robbery attempt and chased the assailants while armed with a wrench; (3) Horsey did not leave the site of the truck "but merely ran around deceased's truck"; and (4) Horsey shot Boykin to death at close range with the sawed-off shotgun in an attempt to escape the scene of the attempted robbery. We have reviewed the record in accordance with our long-established test, viewing the evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the Commonwealth and leaving questions of credibility to the finder of fact. See, e. g., Commonwealth v. Hubbard, 472 Pa. 259, 266, 372 A.2d 687 (1977); Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824 (1975). So viewed, the evidence is clearly sufficient to support the findings of the court below and the conclusion that appellant was guilty of murder in the attempted perpetration of a robbery, conduct which constituted murder in the first degree

[ 481 Pa. Page 473]

    under the then applicable statute.*fn3 We cannot accept the contention of appellant that the felony murder doctrine cannot, as a matter of law, be applied when a killing occurs during escape or flight from the scene of a felony or attempted felony. See, e. g., Commonwealth v. Kichline, 468 Pa. 265, 272-73, 361 A.2d 282 (1976); Commonwealth v. Alston, 458 Pa. 412, 417-18, 317 A.2d 229 (1974); Commonwealth v. Carey, 368 Pa. 157, 82 A.2d 240 (1951); Commonwealth v. Darcy, 362 Pa. 259, 66 A.2d 663 (1949); Commonwealth v. Hough, 358 Pa. 247, 56 A.2d 84 (1948); Commonwealth v. Kelly, 337 Pa. 171, 10 A.2d 431 (1940); Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d 805 (1939); Commonwealth v. Tauza, 300 Pa. 375, 150 A. 649 (1930).

Appellant also contends that he is entitled to the benefit of this Court's decisions in Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974), and Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975),*fn4 in assessing whether the court below could properly have found, in light of evidence of intoxication,*fn5 that appellant possessed a specific intent either to kill or to rob his victim.*fn6 We find this

[ 481 Pa. Page 474]

    argument to have been waived. Appellant obtained leave to file post-trial motions nunc pro tunc in May, 1975, after the decisions in Rose and Graves. He did not, however, assert the applicability of Rose and Graves either in his post-trial motions or in his brief in support thereof, which was filed in July, 1975. The argument not having been raised below, it is not available on this appeal. Commonwealth v. Ford, 472 Pa. 542, 545, 372 A.2d 821 (1977). See also, e. g., Commonwealth v. Daniels, 480 Pa. 340, 345, 390 A.2d 172, 174 (1978); Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978); Commonwealth v. Carr, 471 Pa. 86, 369 A.2d 1207 (1977).

Judgment of sentence affirmed.

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