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decided: October 14, 1981.



John J. Grenko, Reading, for appellant.

George C. Yatron, Dist. Atty., Charles M. Guthrie, Jr., Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Wilkinson and Kauffman, JJ. Nix and Larsen, JJ., filed concurring and dissenting opinions in which Kauffman, J., joins.

Author: Roberts

[ 496 Pa. Page 298]


This is an appeal from a judgment of sentence of the Court of Common Pleas of York County imposed on convictions of murder of the first degree, burglary, and rape. Appellant challenges the sufficiency of the evidence on which the convictions were based, as well as the legality of his arrest, a search of his residence, and a statement which he had given to police. We conclude that the evidence does not support the conviction of rape. However, we also conclude that the record is free of error in all other respects. Accordingly, the judgment of sentence is modified and, as modified, affirmed.

[ 496 Pa. Page 299]


The body of the victim, an 80 year old widow, was found on the morning of December 10, 1978, in the bedroom of her apartment where she had lived alone. The victim's throat had been slashed, causing her death. There were also lacerations of the hands, face, and chest. The assailant had entered the victim's apartment through a kitchen window and had ransacked a considerable portion of the apartment, including the bedroom, searching for valuables. Medical examination revealed the presence of sperm in the victim's vagina.

On December 13, three days after the victim's body had been discovered, two acquaintances of appellant gave information to police concerning the crime. In sworn statements, both persons told police that appellant had admitted killing the victim. One of the persons, who saw appellant on the morning that the body had been discovered, stated that appellant had told him that he "used his big knife" to cut the throat of the "lady that lives near the playground," and had taken some whiskey from her apartment. This person stated that he had observed a red substance on appellant's shoes, which appellant had identified as blood. The other person supplied police with substantially the same information, and additionally told police that appellant had shown him a knife which appellant claimed to have used to kill the victim.

Police appeared before a magistrate on the same day they received the sworn statements of appellant's acquaintances, seeking a warrant for appellant's arrest, as well as a warrant to search appellant's residence. In supporting affidavits, police identified one of the acquaintances as Nelson Quinones, "an individual previously used as a witness in a criminal prosecution in Berks County and whose honesty and truthful demeanor has been established in the eyes of the Court . . . ." Police did not include the name of the other supplier of information in the affidavit because of a "fear of retribution . . . ."

The magistrate issued the warrants late that evening and police executed the warrants in the early hours of the

[ 496 Pa. Page 300]

    following morning, December 14, at approximately 4:00 a. m. As a result of a search of the premises, police recovered items of clothing, a knife with a blade of approximately eighteen inches, and two empty bottles of whiskey. Upon taking appellant into custody, police advised appellant of his Miranda rights and transported him to police headquarters. There he was once again advised of his rights. After questioning, appellant supplied police with a statement, subsequently reduced to writing by police and signed by appellant, in which he admitted breaking into the victim's apartment, killing the victim with his knife, and taking liquor. However, appellant also stated: "I didn't mess with her or anything like that. I don't remember messing with her like that; no, no. I didn't have any sex with her."

In pre-trial motions, appellant challenged the legality of his arrest and the evidence seized pursuant to the search warrant. The Court of Common Pleas of Berks County denied relief, but granted appellant's application for a change of venue. The matter was then tried before a jury in York County. The Commonwealth presented ample evidence in support of its charges of murder of the first degree and burglary. As to the charge of rape, the Commonwealth established that the victim had no male acquaintances and that appellant was the only person who had entered the victim's residence on the night of the killing. Through expert testimony, the Commonwealth also established the presence of sperm in the victim's vagina. On cross-examination, the Commonwealth's expert admitted that he could not tell how long the sperm had been there.

After returning its verdicts of guilty, the jury found the presence of mitigating circumstances. Written post-verdict motions were denied, and a sentence of life imprisonment on the murder conviction was imposed. In addition, sentences of ten to twenty years' imprisonment were imposed on the burglary and rape convictions. These latter sentences were to run concurrent to each other, but consecutive to the sentence imposed on the murder conviction. This appeal followed.

[ 496 Pa. Page 301]


Under the statutes in effect at the time this appeal was filed, authority to review appellant's homicide conviction is allocated to this Court, see Historical Note to 42 Pa.C.S.A. § 722 (1981), while authority to review the burglary and rape convictions is allocated to the Superior Court, 42 Pa.C.S. § 742. Although these statutory provisions are phrased in terms of "jurisdiction," another provision relating to our appellate court provides:

"[T]he failure of an appellee to file an objection to the jurisdiction of an appellate court within such time as may be provided by general rule, shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this title, or of any general rule, adopted pursuant to section 503 (relating to reassignment of matters), vesting jurisdiction of such appeal in another appellate court."

42 Pa.C.S. § 704(a). Thus the term "jurisdiction" is used to denote which appellate court has primary responsibility for a particular matter, permitting an appellate court in which a matter is erroneously filed to dispose of the matter in its discretion, absent timely objections.

This Court has on occasion declined to review non-homicide matters more properly presented to the Superior Court, even where the Commonwealth has not raised a jurisdictional objection. See, e. g., Commonwealth v. Hollis, 483 Pa. 427, 397 A.2d 417 (1979); Commonwealth v. O'Bryant, 479 Pa. 534, 388 A.2d 1059 (1978). However, on these occasions, the non-homicide matter had also been appealed to the Superior Court. Thus our decisions not to review the non-homicide matter reflected the judgment that the resources of the Superior Court which had already been utilized to process the appeal should not be wasted and duplicated by this Court.

Here, no such appeal to the Superior Court appears of record, and the Commonwealth has ...

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