Commonwealth v. Williams
Commonwealth v. Williams
Opinion of the Court
This is an appeal from a judgment of sentence imposed on appellant for his convictions of aggravated assault, possessing an instrument of crime, carrying a firearm in a public street, and recklessly endangering another person. Appellant challenges the legality of his arrest and also asserts that the trial judge erred in denying his motion for a mistrial or cautionary instructions following the prosecutor’s closing arguments. After closely scrutinizing appellant’s arguments, we conclude that the record is free from error in all respects. Accordingly, we affirm the judgment of sentence.
The facts leading to the prosecution of appellant are as follows. On October 31, 1978, at approximately 2:30 p.m., James Hampton was shot in the head in North Philadelphia. Eye witnesses informed the investigating officers that the perpetrator was an individual known as “Country”. One of the detectives, David Kaisinger, knew appellant went by the aforementioned nickname. At approximately 8:10 that evening, an eyewitness was shown an array of photographs which included appellant’s picture, and identified appellant as the one who committed the assault.
Detective Edward Gallagher, who conducted the identification procedure, returned to the scene of the shooting at approximately 8:30 p.m. There he was advised by Officer Johnson of a tip by an unidentified informant to the effect that appellant was in a second floor bedroom at 1920 North Napa Street, was armed, and that he was going to leave town that night. Detective Gallagher called for a stake-out team. Upon their arrival, the police immediately proceeded to the Napa Street address where they entered an unlocked door, proceeded to the second floor, and apprehended appellant at 9:15 p.m.
The first issue which appellant raises is an assignment of error by the trial judge in denying appellant’s application to suppress his statement and physical evidence. Appellant complains that the police officer’s entry into the Napa Street residence without a warrant constitutes an unreasonable search and seizure which is repugnant to the Fourth Amendment, and which fails to comport with the tests embodied in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Moreover, appellant contends that the warrantless entry and his arrest by the police could not be justified on the grounds of exigent circumstances.
Appellant relies upon the Pennsylvania Supreme Court decision of Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980), which held that an arrest warrant was required to effectuate a valid arrest inside the arrestee’s home absent exigent circumstances. Those considerations which have been recognized as exigent circumstances include: 1) the gravity of the offense; 2) a reasonable belief that the suspect is armed; 3) a clear showing of probable cause; 4) a reasonable belief that the suspect is within the premises sought to be entered; 5) a likelihood that the suspect will escape; 6) the time of entry; and 7) whether the entry was peaceful. Commonwealth v. Williams, supra 483 Pa. at 298-9, 396 A.2d at 1179, quoting Dorman v. United States, 140 U.S.App.D.C. 313, 320, 435 F.2d 385, 392-3 (1970).
Appellant argues, in essence, that the police had neither a warrant nor a reasonable belief that the suspect was within
Appellant’s interpretation of the Williams’ warrant requirement is correct; appellant’s argument falters in two regards. First, the Williams case is inapplicable to the case at bar. That decision was rendered on November 18, 1978, and held to be prospective only in Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980). Appellant was arrested on October 31, 1978. Consequently, Williams is not dispositive of this issue. Instead, we must look to the state of the law prior to November 18, 1978, to determine if warrantless arrests inside a residence were legal.
In Commonwealth v. Norris, 498 Pa. 308, 312 n. 1, 446 A.2d 246, 248 n. 1 (1982), the Supreme Court observed:
“Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978) cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980) which established a warrant requirement for arrests in the home in this Commonwealth has held to apply only to arrests occurring after November 18, 1978, when it was handed down. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981). Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) announced the same warrant requirement under federal law prospectively. Appellant was arrested May 29, 1976. At that time, the requirement for a warrantless arrest in the home was a showing of probable cause.”
The Commonwealth therefore was only required to prove probable cause. See also Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982). That is not to say that all pre-William entries into homes to effectuate arrests were valid. Such entries prior to the Williams case still had to be either preceded by the Fourth Amendment re
In the instant case, the nature of the offense for which appellant was being sought was very grave and, since the assault was committed with a gun, the police were more than reasonable in believing that appellant was armed. The police without question had sufficient probable cause to arrest appellant.
Concededly, the police relied upon an informant for the tip as to where appellant was hiding and that he intended to flee. However, all that was required was a reasonable belief on their part that the suspect was within the Napa Street address. Commonwealth v. Williams, supra. Appellant was already identified as the suspect in this case and it was obvious that police were actively searching for him. Therefore, when someone informed the police as to appellant’s whereabouts, it was clearly reasonable for them to act according to that tip.
We also hold that the police were excused from knocking and announcing their identity and purpose. As we stated above, a violation of the knock and announce rule does not per se warrant a grant of relief if exigent circumstances justified non-compliance. Herein, the police entertained a reasonable belief that appellant was armed, since the offense had been committed with a firearm a mere six hours earlier and no weapon was found at the scene, and a concomitant belief that they were in peril of bodily harm. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1967). Furthermore, they had received a tip that appellant planned to escape from the vicinity some time that evening. Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968).
Finally, the duty of the police to knock and announce was obviated by their belief that appellant was aware of their purpose. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Supreme Court of the United States held that the defendant’s furtive conduct in eluding police shortly prior to his arrest served as a sufficient basis for the police officers’ belief that he was expecting them. Thus, the officers’ failure to knock and announce
Although the record is unclear as to whether the door was ajar or closed when the police entered, it is clearly irrelevant in light of our holding that the obligation of the police to comply with the knock and announce rule was vitiated by the above facts. For the foregoing reasons, the entry of the police and their subsequent apprehension of appellant were well within the safeguards embodied in the Fourth Amendment.
As we stated previously, appellant’s argument that the police conducted an illegal search and seizure falters in two aspects. Regardless of the above analysis that the search was valid, there is yet another ground for rejecting appellant’s contention. The Williams case concerns a search and seizure conducted in a suspect’s own home. Herein, appellant was not in his home; testimony at trial revealed that the owner and occupant at 1920 North Napa Street was Christina Lewis.
Recently, the Supreme Court of the United States had occasion to rule upon the need for police to obtain a search warrant to enter premises belonging to a third party in order to effectuate an arrest. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Therein, the Supreme Court recognized that the purpose of such a
In Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), a similar factual situation arose where appellant was arrested inside another’s home.
“Fourth Amendment claims involve the accused’s ‘legitimate expectation of privacy’ in the areas searched. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). If an arrest warrant and ‘reason to believe’ that a suspect can be found on the premises are sufficient for police to invade a suspect’s own home, then these facts are sufficient to invade a third party’s premises, where a suspect’s expectation of privacy is necessarily less.”
Id., 498 Pa. at 333-334, 446 A.2d at 587. The Supreme Court thus held that no more strigent requirement was necessary. We too hold that the police were acting properly in the instant case and that no relief is warranted by appellant’s attempts to object to a third party’s invasion of privacy.
Appellant’s second assignment of error concerns the prosecution’s closing argument. He asserts that the prosecutor utilized tactics which were purposely designed to inflame the passions and prejudices of the jury. However, in search of support for this argument, appellant misquotes the assistant district attorney on three different occasions.
Having viewed the actual transcript of the prosecutor’s closing argument in the context of the case as a whole, we find that his summary constituted a “disinterested, impartial and fair assessment of the testimony ... presented.” Commonwealth v. Raffensberger, 291 Pa.Super. 193,
Judgment of sentence affirmed.
. Appellant was apprehended with a revolver, three spent rounds, and three live rounds.
. Timely post-trial motions were filed and denied.
. Probable cause, an intrinsic element in valid warrantless arrests, has been defined as those facts and circumstances available to the police at the time of the arrest which would justify a reasonably prudent man in believing that the suspect has committed or is committing a crime. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979); Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967). Clearly, police in this instance had probable cause to arrest appellant. The victim was shot in the middle of the day and eyewitnesses identified appellant by his nickname and by a photographic array.
. Therein, the police had obtained an arrest warrant, however, that fact does not impair the precential value of Stanley to the case at bar since we have already determined that the police had the requisite probable cause to effectuate an arrest and at that time did not require an arrest warrant.
Dissenting Opinion
dissenting:
The majority holds that a tip from an unidentified informant indicating a criminal suspect’s whereabouts is sufficient to allow police officers to enter the home of a third party to effectuate an arrest without first knocking and announcing their presence. Because this holding disregards the Fourth Amendment’s guarantee against unreasonable searches and seizures, I must dissent.
In Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), our Supreme Court was faced with the issue of whether a defendant’s Fourth Amendment rights are violated when police enter a third party’s apartment to effectuate an arrest and, in so doing, seize a revolver belonging to the defendant.
The facts of Stanley were stated by the Court as follows:
“On October 1, 1975, while incarcerated following a murder conviction for the shooting death of one Timothy Shinn, appellant escaped from the Philadelphia General Hospital Detention Unit. When police discovered appellant was gone, they broadcast an hourly ‘wanted’ message over the police radio, informed the State Crime Information Center, and widely disseminated appellant’s ‘mug shot’.. An arrest warrant was issued the next day.
While appellant was at large, Carmen Sperduto observed appellant with Jacqueline Keim. Ms. Keim told Mr. Sperduto that appellant was a fugitive and was staying at her apartment on West Roosevelt Boulevard in*111 Philadelphia. (Appellant was heard to say that ‘he needed a place to hole up ... until things got cooled off.’) Mr. Sperduto also observed appellant drop and retrieve a small caliber revolver. On October 3, after seeing appellant’s picture in the paper, Mr. Sperduto called the police and stated that he ‘might know’ appellant’s whereabouts.
About an hour later, Mr. Sperduto conducted the police to Ms. Keim’s apartment. The police called for reinforcements, but no search warrant was obtained. When reinforcements arrived, an officer knocked and announced ‘Police’. Thirty to sixty seconds elapsed with no response. The police then forced open the door and proceeded through the living room and dining room. In a small back bedroom, the police observed what they first thought to be a bundle of clothing beneath a small portable crib. Upon closer examination, the police discerned the figure of a man (appellant) and apprehended the appellant. Simultaneously, the police seized a fully loaded revolver from the top of a small bureau next to the crib, within appellant’s reach.”
Stanley, supra, 498 Pa. at 331, 332, 446 A.2d at 585, 586. In affirming judgment of sentence, this Court held that because the police entered the third party’s apartment not to search the premises but to make an arrest, Stanley did not have standing to attack the lawfulness of the entry to arrest him. Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979). The Supreme Court chose not to dispose of the issue on the basis of standing and, instead, ruled that the entry was legal. The high Court held that an arrest warrant and “reason to believe” that the subject was in the third party’s home were all that was necessary to enter. The Court also held, however, that absent exigent circumstances, police must announce both their authority and purpose before forcible entry. The Court found that the information supplied by Mr. Sperduto, who led officers to the apartment in which Stanley was hiding, supplied police with sufficient reason to believe that the fugitive was in the apartment. The officers knocked and announced
Although the police in the instant case were not armed with an arrest warrant, I agree with the opinion of the majority that the eye-witness identification of appellant only 20 minutes prior to receiving a tip as to appellant’s whereabouts provided probable cause for the arrest and obviated the need for an arrest warrant. However, the fact that police had probable cause to arrest appellant does not excuse the procedures used to effectuate that arrest. Although the majority is correct in citing Stanley, supra, for the proposition that one’s expectation of privacy is not as high in a third party’s home as it is in one’s own home, Stanley does not hold that an armed suspect in a third party’s home has absolutely no expectation of privacy.
Detective Gallagher’s testimony from the suppression hearing describes the events leading up to the arrest. Detective Gallagher learned from another police officer, who did not testify, that an informant had seen appellant in this residence, that he was armed, and that he was going to leave town that evening. (N.T. November 1, 1979, pp. 25, 26). At that point, Detective Gallagher waited for a stakeout team and then proceeded up the street towards the residence. When they were about ten houses away, someone thrust his head out of the door of the residence and then quickly went back inside the house. At least four officers, including Detective Gallagher, walked inside. (N.T. November 1, 1979, pp. 28, 40). Detective Gallagher testified that he did not hear the officers who preceded him through the door knock or announce that they were police. (N.T. November 1, 1979, p. 39).
In Commonwealth v. Riccardi, 220 Pa.Super. 72, 283 A.2d 719 (1971), we stated:
“It is settled in this Commonwealth that the Fourth Amendment prohibition against unreasonable searches and seizures requires that a police officer give notice of his identity and announce his purpose before forcibly entering upon private premises to conduct a search or make an arrest. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). ‘The purpose of this announcement rule is that “ * * * the dignity and privacy protected by the fourth amendment demand a certain propriety on the part of policemen even after they have been authorized to invade an individual’s privacy. Regardless of how great the probable cause to believe a man guilty of a crime, he must be given a reasonable opportunity*114 to surrender his privacy voluntarily.” ’ ” (Citations omitted) (Emphasis supplied)
Id., 220 Pa.Superior at 74, 283 A.2d at 721.
The majority in the instant case is condoning the unannounced entry of four police officers into a private residence based on the testimony of one police officer that another police officer had received a tip from an unknown informant that appellant could be found at this residence. The hearsay on hearsay testimony of an unidentified informant’s tip is, in this writer’s mind, clearly inadequate to create the exigent circumstances required before police can make an unannounced entry into a private residence.
The majority finds the record unclear as to whether the door of the Napa Street residence was ajar or closed when the police entered. The lower court, in its findings of fact, found that the police “entered an open or unlocked door” before proceeding, to the second floor where they apprehended appellant. While being cross-examined at the suppression hearing, Detective Gallagher indicated that he was sure the door was unlocked but was not sure if the door was completely shut. However, in referring to the first police officer who entered, Detective Gallagher stated, “I saw him turn the handle and go in.” (N.T. November 1, 1979, p. 39). In passing on the federal knock and announce rule in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), the Court stated: “An unannounced intrusion into a dwelling ... is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a pass key, or ... open a closed but unlocked door.” (Footnote omitted) Id. at 590, 88 S.Ct. at 1758. In the case sub judice, the evidence shows that the police turned the door handle before pushing the door open and going inside. Because there is no evidence to indicate that the door was open, the officer’s failure to knock and announce cannot be excused on this point.
The Pennsylvania Supreme Court in Stanley, supra, did not announce a rule entitling police to enter anyone’s home
I, therefore, dissent.
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