Com. v. Porter

• Decision Date: 21 June 1974
• Citation: 229 Pa.Super. 314,323 A.2d 128
• Parties: COMMONWEALTH of Pennsylvania v. Samuel PORTER, Appellant.
• Court: Pennsylvania Superior Court

Page 128

323 A.2d 128

229 Pa.Super. 314

COMMONWEALTH of Pennsylvania v. Samuel PORTER, Appellant.

Superior Court of Pennsylvania.

June 21, 1974.

PRICE, Judge.

On November 3, 1972, the appellant, Samuel Porter, was convicted of Aggravated Robbery, Aggravated Assault and Battery, Burglary of a Motor Vehicle, and Violation of the Uniform Firearms Act by the lower court sitting without a jury. Post trial motions for arrest of judgment and new trial were denied, and appellant was sentenced on March 2, 1973, to concurrent terms of imprisonment of 1 to 3 years for burglary; 2 1/2 to 10 years for robbery; 1 to 2 years for the firearm violation. Sentence was suspended on the assault and battery conviction.

The appellant raises three assignments of error: (1) that the evidence was insufficient to return a guilty verdict, (2) that the seizure of appellant's blood violated his Fourth Amendment right, and (3) that the court below erred in admitting evidence of blood typing. A review of the record convinces us that the trial court did not so err, and accordingly, the judgment of sentence will be affirmed.

Viewing the evidence in a light most favorable to the Commonwealth, Commonwealth v. Portalatin, 223 Pa.Super. 33, 297 A.2d 144 (1972), the testimony established the following facts: On February 15, 1972 at 2:00 p.m., a meat delivery truck driver became the victim of a robbery at gun-point. The complainant, Brooks McCollough, had just delivered a load of spare-ribs to a barbecue restaurant and had received a brown paper bag containing approximately $700.00 as payment. Mr. McCollough then returned to the cargo section of his truck, to prepare for his next delivery.

As he was bent over in the front of the cargo section, with his back to the door, Mr. McCollough felt the truck shake and heard a voice say, 'Hold it; this is a stick-up'. Mr. McCollough was frisked and the brown paper bag containing the cash payment was stolen from his hip pocket. Several seconds elapsed, when Mr. McCollough heard a shot, felt pellets strike his left hand, and heard footsteps running past the truck.

The complainant then turned to face the door and saw a double-barrelled, sawed-off shotgun lying on the floor. He stepped outside and saw two men running away from the truck. He returned to the truck, where he noticed fresh blood--which had not been there before--on the floor and one wall. Mr. McCollough notified the police and later received treatment at the nearest hospital for superficial wounds. His hand was intact, and did not bleed profusely at any time.

While at the hospital, Mr. McCollough was interviewed by Detective Linso. The complainant described one of his attackers as a black man, about 6 feet tall, wearing a brown leather jacket. The other wore a black leather jacket.

Detective Linso then received instructions to go to Temple University Hospital to interview the victim of another shooting. This victim was Samuel Porter, the appellant herein. He had been admitted at approximately 2:30 p.m. for emergency treatment of severe gunshot wounds of the left hand. The detective testified that he saw appellant's hand, and observed that one of his fingers had been so severely injured that the bone was exposed at the second joint. The thumb and another finger were also badly mutilated.

Mr. Porter told the detective that he had been shot at about 2:10 p.m. by two men as he was walking on a street near the hospital, and that a passing motorist drove him to the hospital. The detective then went to the scene but could find no evidence of a shooting, nor any blood. Neighbors in that area said they had heard no shots.

The detective returned to the hospital to see Mr. Porter, and noticed a similarity between appellant and the man described by the complainant as one of the men who ran from the truck after the robbery. At that time, Detective Linso placed the appellant under arrest and gave him the Miranda warnings. On the table near appellant was a brown leather jacket which belonged to appellant, and which contained a brown paper bag.

The detective then left the hospital and returned to the scene of the truck robbery, where he took custody of the shotgun and inspected the truck. On the rear floor and one wall, he saw what appeared to be fresh drops of human blood. He took samples of these drops, which he submitted to the Police Chemical Laboratory for analysis. He also found particles of what seemed to be dark human flesh, and a fingertip, which he also submitted for analysis. He further noted that there were spots of blood on the ground beside the truck which trailed for quite a distance in the direction the robbers had run.

Chemical analysis confirmed that the flesh was in fact human and the blood was type 'O' human blood. Neither the blood nor the flesh could have belonged to the victim, as his hand was left intact after the shooting and bled very little.

On February 29, 1972, the appellant, who was confined to the Detention Ward of Philadelphia General Hospital, was subjected to a properly administered blood test pursuant to a search warrant. Subsequent typing of his blood revealed that it was type 'O'.

The appellant's first allegation, that the evidence was insufficient to sustain the verdict, has no merit. The test of the sufficiency of the evidence regardless of whether it is direct or circumstantial is whether, accepting as true all the evidence and all reasonable inferences arising therefrom upon which, if believed, the fact finder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime for which he was convicted. Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973); Commonwealth v. McFadden, 448 Pa. 277, 292 A.2d 324 (1972); Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971).

There is clearly enough circumstantial evidence in this case to substantiate ...