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COMMONWEALTH PENNSYLVANIA v. MARYLYNN MEISCHKE (08/28/79)

submitted: August 28, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
MARYLYNN MEISCHKE, APPELLANT



Nos. 281 & 282 SPECIAL TRANSFER DOCKET, PHILADELPHIA DISTRICT, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed on Indictments 1434 and 1435, March Term, 1976.

COUNSEL

Peter C. Bowers, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 273 Pa. Super. Page 137]

Appellant contends, inter alia,*fn1 that the lower court in this homicide case erred in: (1) admitting into evidence a holster and cartridges found by police in appellant's room; and (2) excluding evidence of a prior conviction of the victim offered to show his violent character. We disagree and, accordingly, affirm the judgment of sentence.

Because appellant testified at her jury trial that she shot the victim, the only issues litigated were self-defense and degree of guilt. The prosecution introduced into evidence a holster and six cartridges discovered in appellant's room by police during the course of a warrantless search. Although appellant did not move to suppress this evidence pre-trial, her attorney did object to its admission at trial. Additionally, appellant offered evidence of the victim's criminal record to show that he had a propensity for violence. Among the convictions of the victim cited by appellant, was a 1968 conviction by a magistrate for which a fine was imposed.*fn2 The lower court refused to admit the victim's criminal record into evidence.

Appellant was convicted of murder in the third degree and of possessing an instrument of crime generally. The lower court sentenced appellant to 5 1/2 to 15 years on the murder charge and suspended sentence on the weapons charge. This appeal from the judgment of sentence followed.

[ 273 Pa. Super. Page 138]

Appellant first contends that it was error for the trial court to admit the holster and cartridges into evidence because they were obtained by means of an illegal search and seizure. A motion to suppress evidence allegedly obtained in violation of the rights of the accused must be made pre-trial, "[u]nless the opportunity did not previously exist, or the interests of justice otherwise require." Pa.R.Crim.P. 323(b). Circumstances in which we will find that the opportunity to object did not exist are limited such that "[s]imple failure to apprise oneself of facts necessary for a pre-trial suppression motion does not entitle one to relief from the Rule's mandate." Commonwealth v. Duncan, 257 Pa. Super. 277, 282, 390 A.2d 820, 823 (1978). In Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), for example, our Supreme Court refused to consider appellant's challenge to evidence where counsel alleged that the Commonwealth did not comply with his pre-trial request to reveal incriminating evidence. Finally, the decision to permit objection at trial where no pre-trial motion has been filed is within the discretion of the trial judge. Commonwealth v. Williams, 229 Pa. Super. 390, 323 A.2d 862 (1974).

In the case at bar, appellant's counsel has not made the requisite showing of the absence of an opportunity to file a pre-trial motion to suppress the holster and cartridges. He alleged simply that he did not know of the search and seizure and that the applicable discovery rules did not provide a means of obtaining the information. Such an allegation is insufficient to support a conclusion that the lower court abused its discretion in finding that appellant's motion to suppress made at trial was untimely. Moreover, we hold that even if the holster and cartridges were admitted in error, the error was harmless because appellant admitted the shooting and the possession of the firearm. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Appellant next contends that the lower court erred in failing to admit into evidence the criminal record of the victim. "Where a defendant alleges self-defense, he may use his deceased ...


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