No. 780 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Montgomery County, Criminal Division, at No. 4627 November Term, 1979.
Lawrence Pauker, Norristown, for appellant.
J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Brosky, Johnson and Montgomery, JJ.
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This is an appeal from the judgment of sentence after a jury verdict of guilty of murder in the third degree. Appellant raises the following fourteen issues in this appeal:
I. DID THE LOWER COURT ERR IN FINDING THAT THERE WAS PROBABLE CAUSE TO ARREST THE APPELLANT?
II. DID THE LOWER COURT ERR IN FAILING TO SUPPRESS EVIDENCE OF THE APPELLANT'S
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ORAL STATEMENTS TO THE POLICE, AND CONCLUDING THAT SAID STATEMENTS WERE VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY MADE?
III. DID THE LOWER COURT ERR IN FAILING TO GRANT APPELLANT'S MOTION TO SUPPRESS THE TESTIMONY AND ORAL STATEMENT OF BELTON LIVINGSTON?
IV. WAS THE VERDICT CONTRARY TO THE WEIGHT OF THE EVIDENCE AND AGAINST THE LAW?
V. DID THE LOWER COURT ERR IN ADMITTING CERTAIN COMMONWEALTH EXHIBITS INTO EVIDENCE AND ALLOWING SAME TO GO OUT WITH THE JURY DURING DELIBERATIONS?
VI. DID THE LOWER COURT ERR IN ALLOWING LEWIS BRENNER, A FORENSIC CHEMIST TO GIVE AN EXPERT OPINION ON THE MUZZLE-TO-TARGET DISTANCE?
VII. DID THE LOWER COURT ERR IN ALLOWING THE APPELLANT TO BE CROSS-EXAMINED CONCERNING HIS PRIOR USE AND PURCHASE OF THE WEAPON USED BY THE APPELLANT?
VIII. DID THE LOWER COURT ERR IN INSTRUCTING THE JURY THE TRIVIAL BLOWS WERE INSUFFICIENT TO CONSTITUTE PROVOCATION SUFFICIENT TO FIND VOLUNTARY MANSLAUGHTER?
IX. DID THE LOWER COURT ERR IN INSTRUCTING THE JURY THAT MALICE MAY BE IMPLIED FROM THE USE OF A WEAPON ON A VITAL PART OF THE HUMAN BODY?
X. DID THE LOWER COURT ERR IN GIVING ADDITIONAL INSTRUCTIONS TO THE JURY A SECOND TIME OF THE ELEMENTS OF MURDER IN THE THIRD DEGREE AND VOLUNTARY MANSLAUGHTER ONLY?
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XI. DID THE LOWER COURT ERR IN REFUSING CERTAIN OF THE APPELLANT'S POINTS FOR CHARGE?
XII. WAS APPELLANT'S COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF THE BILL OF INFORMATION NOT HAVING BEEN PROPERLY SIGNED BY THE DISTRICT ATTORNEY?
XIII. DID THE LOWER COURT ERR IN ITS FAILING TO RAISE THE ISSUE OF THE BILL OF INFORMATION NOT HAVING BEEN PROPERLY SIGNED BY THE DISTRICT ATTORNEY?
XIV. WAS THE LOWER COURT'S SENTENCE UNDULY HARSH AND EXCESSIVE?
We find that thirteen of appellant's issues do not merit relief, but because we are unable to determine from the record before us whether the sentence was excessive, we vacate the judgment of sentence and remand for resentencing.
This case arose from the shooting death, on October 5, 1979, of one Robert Matson. On October 8, 1979, appellant was arrested in connection with the crime and charged, inter alia, with murder. After disposition of pre-trial motions, including a motion to suppress evidence, trial began on April 8, 1980. The jury found appellant guilty of third degree murder on April 15, 1980. Post-verdict motions were filed and denied and appellant was sentenced to a term of ten to twenty years imprisonment. This appeal followed.
Appellant contends that the court below erred in finding that probable cause existed to arrest appellant and in not suppressing a statement of a witness and statements of his own obtained as a result of this arrest as "fruits of the poisonous tree." He also argues that his own statements should also have been ...