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decided: February 5, 1981.


No. 408 Jan. Term, 1978, No. 9 Jan. Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, dated Sept. 7, 1978, May Term, 1977, No. 2317, 2314, Trial Division-- Criminal Section


Flora L. Becker, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Michelle Goldfarb, Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a concurring opinion in which O'Brien, C. J., joined. Nix, J., concurred in the result.

Author: Larsen

[ 492 Pa. Page 537]


Appellant David Horner was arrested for the shooting death of one Robert Mendel in the city of Philadelphia. At the time of the shooting, appellant was 15 years of age and resided with his family in a house next-door to the residence of the victim and his family. The two families had a deep-seated dislike for each other, and had been engaged in a violent feud for several years. On the day in question, May 7, 1977, the victim went to appellant's home because of threats and an assault upon the victim's wife. When he

[ 492 Pa. Page 538]

    arrived, he was pulled into the door and shot numerous times in the back with two rifles.

Appellant proceeded to trial before the Honorable Juanita Kidd Stout, sitting without a jury, and was found guilty of murder of the third degree.*fn1 Post-verdict motions were denied, and appellant was sentenced to twelve years probation on the condition that he reside with his mother, maintain a perfect attendance record in school (except for medical reasons), devote four hours of study each evening to school work, and join some worthwhile organization such as the Boy Scouts of America. Appellant then brought this direct appeal.

The sole issue raised by appellant is that the suppression court erred in not suppressing inculpatory statements which he made to the police after his arrest.*fn2 The Commonwealth did not introduce these statements into evidence at appellant's trial, but appellant nevertheless claims the suppression court's ruling warrants the granting a new trial. Appellant bases this claim upon the assertion that the ruling prejudiced him by causing him to: a) fail to press for a decertification

[ 492 Pa. Page 539]

    of the case to juvenile court;*fn3 b) adjust his defense theory and trial strategy; and c) waive his right to a trial by jury. This claim is meritless.

With regard to appellant's first two allegations of prejudice, it is noteworthy that nowhere does appellant contend that he did not receive a fair trial, that he was denied the opportunity to present or cross-examine witnesses, that he was prevented from setting forth any defense or theory of the case, or that the Commonwealth engaged in any improper or inappropriate conduct. Appellant's complaint is thus merely an allegation that appellant's counsel would have handled the case differently had he known the Commonwealth would not introduce appellant's confession into evidence.*fn4 It is not, however, this Court's duty, function, or privilege to award new trials merely so that a different strategy can be employed; but rather, to grant relief in cases where a defendant did not receive a fair trial or some constitutional right has been transgressed. As a consequence, this Court will not consider claims of error arising from the failure to suppress evidence not introduced at trial, unless it is alleged that there was some resulting infringement upon the defendant's constitutional rights.

[ 492 Pa. Page 540934]

, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975). However, this record is equally clear that the Commonwealth in no respect utilized the illegally-obtained statement, either to obtain a waiver of appellant's right to trial by jury or to incriminate appellant at trial. Thus, I concur in the result.

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