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COMMONWEALTH PENNSYLVANIA v. ADAM ANDREW TOPA (09/14/79)

filed: September 14, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ADAM ANDREW TOPA, APPELLANT



No. 199 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lackawanna County, No. 1465 of 1972.

COUNSEL

Peter G. Loftus, Scranton, for appellant.

William J. Garvey, Assistant District Attorney, Scranton, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Wekselman

[ 269 Pa. Super. Page 475]

Appellant, Adam Andrew Topa, was charged with the killing of Ellen Walsh. The case was tried to a jury and Topa was convicted of first degree murder on June 11, 1973. His post-trial motions were denied and he was sentenced to a term of life imprisonment. On appeal, the Pennsylvania Supreme Court held that the introduction into evidence of testimony based on the use of voiceprint analysis was error which required reversal of the judgment of sentence and the award of a new trial. Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). The matter was retried in conformity with the mandate of the Pennsylvania Supreme Court and appellant was once again convicted of murder in the first degree and, after denial of timely post-trial motions, was again sentenced to life imprisonment. His motion for reconsideration of the judgment of sentence was denied and he now appeals the judgment of sentence.

[ 269 Pa. Super. Page 476]

The facts of the case are outlined in the Opinion of the Supreme Court in Commonwealth v. Topa, supra, but it is necessary to summarize them again in order that appellant's allegations of error may be placed in proper focus. We are required to review the evidence in the light most favorable to the Commonwealth as verdict winner. See, Commonwealth Page 476} v. Robson, 461 Pa. 615, 337 A.2d 573 (1975); Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975). So viewing the evidence, the trial record established the following:

On Sunday, October 22, 1972, at about 12:30 p. m., the body of Ellen Marie Walsh was discovered in a remote dump area near St. Patrick's Cemetery, Blakely, Pa. The victim died from massive bleeding caused by 35 stab wounds. At about 5:10 p. m. Blakely police observed appellant driving his pickup truck about 20 feet from the general area where the body had been discovered. After turning his head in the direction of the police, appellant accelerated and drove away rapidly. At 5:25 p. m. a call was received at Scranton Police Headquarters which was automatically tape recorded. The caller identified himself as Roger Ferretti and stated that he had just stabbed a woman in the cemetery on the Carbondale Highway. He stated that he was calling from the V.F.W. in Jessup. At trial Roger Ferretti, an acquaintance of appellant, denied making the call and identified the voice on the tape as that of appellant. At 6:20 appellant was observed entering the V.F.W. Ten minutes later the District Attorney and a state trooper spoke to appellant. The trooper noticed what appeared to be blood on appellant's jacket. The District Attorney advised appellant of his rights. Search warrants were obtained for the jacket and appellant's left shoe, which also appeared to have blood on it. Analysis showed that the blood on appellant's jacket was consistent with the victim's blood and inconsistent with appellant's. Analysis of the blood stain also revealed red wool fibres therein which were identical with the red wool fibres in the jacket worn by the decedent. A button found near the body was determined to be identical to the buttons on appellant's jacket, from which a button was missing. Appellant was seen with the decedent at bars in Jessup and Scranton between 8:00 and 10:00 p. m. on October 21, 1972. The bartender at the Jessup V.F.W. testified that about 7:20 p. m. on October 21, 1972, a call came for appellant from a woman who identified herself as Ellen Walsh.

[ 269 Pa. Super. Page 477]

Appellant contends that the trial Court erred in admitting the tape recording of the telephone call to the Scranton police because the taping violated the applicable anti-wiretapping statute. We are in agreement with the Court below that the applicable statute need not be read as appellant reads it and that the cases upon which he relies are distinguishable. The Pennsylvania Anti-Wiretapping Statute, 18 P.S. ยง 3742, since repealed and re-enacted using substantially similar language, provided in relevant part:

"No person shall intercept a communication by telephone or telegraph without permission of the parties to such communication. No person shall install or employ any device for overhearing or recording communications passing through a telephone or telegraph line with intent to intercept a communication in violation of this act. No person shall divulge ...


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