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filed: October 5, 1979.


Nos. 93 and 94 Special Transfer Docket, Appeals from Judgments of Sentence of Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County. Nos. 114, 116, 117 August Term, 1976


C. George Milner, Philadelphia, for appellant.

Paul S. Diamond, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: Honeyman

[ 270 Pa. Super. Page 367]

A jury convicted appellant of murder in the first degree, possession of an instrument of crime and unlawful possession of a controlled substance. After post trial motions were refused, he was sentenced to life imprisonment on the murder conviction and two concurrent sentences of 2 1/2 years to 5 years on the other offenses. Appeals were taken from these judgments of sentence.

[ 270 Pa. Super. Page 368]

On July 10, 1976, appellant and the decedent, James Robinson, met on a street in Philadelphia late in the evening. The two exchanged angry words and agreed to fight in a nearby vacant lot. Appellant was nursing a grievance from a previous altercation with decedent's brother. They left their respective companions and went around the corner to their chosen battleground. The fight ensued, following which appellant was observed by the decedent's brother departing the fight scene alone and he was holding a small object with his hand cupped around it for concealment. Decedent was found lying face down and gagging. He died shortly thereafter. Autopsy showed that he had been struck from behind by two bullets, one of which passed through his lungs and heart. The police traced appellant to his apartment at 5:55 a. m. the next morning and they gained entry by having a Housing Authority guard open the door for them. The police officers found the appellant in a bedroom in the act of dropping a camera case wrapped in a white towel out of the window. From the ground below, the police recovered parts of a shotgun, the camera case and a towel. Inside the camera case they found 322 glassine envelopes containing a white powder, and two hand guns. By subsequent laboratory tests the white powder proved to be heroin. One of the handguns, a 32 caliber 7 chamber Burgo revolver with two empty chambers, was determined to have been recently fired in the opinion of a ballistics expert. A bullet subsequently test-fired from that weapon ballistically matched the slugs taken from decedent's chest.

The first issue raised by appellant concerns the refusal of the suppression judge to act favorably upon appellant's suppression motion concerning the items found below his bedroom window. Appellant's main thrust in his suppression motion was that the police lacked probable cause to make a warrantless arrest and that the seizure of the items was tainted thereby. The suppression judge found there was probable cause for the warrantless arrest of appellant for murder in his dwelling and that the evidence seized as a consequence thereof was admissible because it was concomitant

[ 270 Pa. Super. Page 369]

    with a lawful arrest. Furthermore, it was properly seized under the "plain view" doctrine as most recently enunciated in Com. v. Harris, 479 Pa. 131, 387 A.2d 869 (1978). Now appellant contends that the evidence should not have been seized because of the failure on the part of the police to obtain both a body warrant and a search warrant. This belated contention appears to be devoid of merit. However, we need not make that determination, because appellant did not raise the issue concerning the lack of warrant either in his suppression motion or in his post trial motions. Therefore, this issue has been waived under the holding in Com. v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) and Com. v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Next, the appellant asserts error by the trial judge in overruling objections in three areas of the testimony of the forensic pathologist who performed the autopsy on decedent's body. The first was with respect to the witness' opinion as to the path of the bullet through the body; the second was to his comments about the facial contusions and abrasions upon the decedent and his opinion that same were consistent with the decedent having fallen on his face; and the third was to the witness' opinions concerning the proximity of the muzzle of the murder weapon to the body of the decedent at the time of firing. No question whatsoever was raised concerning the qualifications of the forensic pathologist. The three areas of his testimony about which complaint is made clearly fall within the recognized and acceptable parameters of his expertise, and so there is no substance to these complaints. See Com. v. Gonzales, 463 Pa. 597, 345 A.2d 691 (1975) and Com. v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978).

In taking the testimony of the ballistics expert as a witness, appellant says it was error for the trial judge to permit him to testify that the configuration of the murder weapon was not "normal". Actually, he testified that a "normal" revolver barrel has five or six "lands" and "grooves", whereas the subject revolver had ten of them. This was clearly ...

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