Com. v. Stanley

• Decision Date: 01 June 1982
• Parties: COMMONWEALTH of Pennsylvania v. Paul STANLEY, Appellant.
• Court: Pennsylvania Supreme Court

Page 583

446 A.2d 583

498 Pa. 326

COMMONWEALTH of Pennsylvania v. Paul STANLEY, Appellant.

Supreme Court of Pennsylvania.

Submitted Jan. 19, 1982.

Decided June 1, 1982.

[498 Pa. 330] John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Attys., for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

OPINION

LARSEN, Justice.

This case presents several issues: (1) whether appellant's Fourth Amendment rights were violated when police (armed with an arrest warrant) entered a third-party's apartment, arrested appellant, and seized his revolver; (2) whether appellant's Fourth Amendment rights were violated when the police failed to announce their purpose prior to breaking into the apartment; (3) whether appellant violated 18 Pa.C.S.A. § 907(a) (possessing instruments of crime) by openly carrying a loaded revolver; (4) whether, despite appellant's offer to stipulate that he committed a "crime of violence," appellant's prior murder conviction was admissible to prove that he violated 18 Pa.C.S.A. § 6105, which prohibits individuals convicted of a "crime of violence" from possessing firearms; and (5) whether appellant could assert intolerable prison conditions as a defense to the crime of escape. ¹

On October 1, 1975, while incarcerated following a murder conviction ² 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 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.

Appellant's motion to suppress this revolver was denied, and the revolver was admitted into evidence at appellant's trial. A jury convicted appellant of escape offenses, possessing an instrument of crime, and possessing a prohibited offensive weapon. [18 Pa.C.S.A. §§ 5721, 5722, 907(a), 908]. Appellant, however, was acquitted of possessing a firearm prohibited to an individual convicted of a "crime of violence." [18 Pa.C.S.A. § 6105]. Appellant was sentenced to two and one-half to nine years imprisonment, the Superior Court affirmed, and we granted allocatur.

First, appellant claims that the revolver should have been suppressed because the police entered Ms. Keim's apartment without a search warrant or probable cause to believe that appellant was inside the apartment. ³ Appellant's claim simply misapprehends the situation. Appellant's revolver was taken from the bureau, an area in his immediate control, incident to a lawful arrest, a constitutionally permissible seizure. It is fundamental that areas within a suspect's immediate control may be searched incident to a lawful arrest to prevent danger to the arresting officers and to prevent destruction of evidence. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), reh. den., 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978). The revolver was the "fruit" of a lawful arrest, not the "fruit" of a search of the apartment. See United States v. Cravero, 545 F.2d 406 (5th Cir. 1976), cert. den., 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977); Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979) (concurring opinion by Nix, J.); Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979); Commonwealth v. Terebieniec, 268 Pa.Super. 511, 525 n.4, 408 A.2d 1120, 1127 n.4 (1979). Probable cause to search the apartment or a warrant to search the apartment were wholly unnecessary.

There is yet another reason why appellant's claim fails. A valid arrest warrant and mere "reason to believe" that appellant was within was all that the police needed to enter. More stringent requirements--a search warrant or probable cause--were wholly unnecessary. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (police armed with an arrest warrant and "reason to believe" that a suspect is within can enter a suspect's own home and seize evidence in plain view); Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. den., 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). ⁴ The police, relying on Mr. Sperduto's information, had "reason to believe" that appellant was in Ms. Keim's apartment. The Payton v. New York and Commonwealth v. Williams cases, which apply to searches of a suspect's own home, also govern appellant's case. 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.

Second, appellant claims that the revolver should have been suppressed because the police failed to announce their purpose prior to entering. Generally, absent exigent circumstances, police must announce both their authority and purpose before forcible entry. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). In this case, the police knocked and announced "Police," but failed to announce their purpose before breaking in thirty to sixty seconds later. However, all Fourth Amendment requirements are tempered by considerations of reasonableness under the circumstances. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The purpose of the "knock and announce" requirement is to permit peaceful surrender of the premises before forcible intrusion. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). After the police knocked and announced their identity, and there was absolutely no response for up to one minute, peaceful surrender of the premises could not reasonably have been anticipated, and communication of purpose was unnecessary. Cf. Commonwealth v. Fladger, 263 Pa.Super. 538, 398 A.2d 707 (1979). The Fourth Amendment does not require that the police stand in a corridor talking to a door. The police need not engage in a "futile gesture" when the occupants of the premises remain silent. See Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975), allocatur denied.

Furthermore, it was unnecessary for the police to announce their purpose because of the exigent circumstances which were present, i.e., potential harm and peril to the safety of the police. See Commonwealth v. Johnson, 223 Pa.Super. 83, 289 A.2d 733 (1972); Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980) (Larsen, J. dissenting opinion); United States v. Kane, 637 F.2d 974 (3d Cir. 1981). The Fourth Amendment cannot be interpreted to imperil law enforcement officers. Appellant, who was reported to be armed, had escaped from imprisonment for the crime of murder committed with a firearm. Under these circumstances, by announcing their identity and waiting at all, the police did more than was required by the Fourth Amendment. Rather than cowering beneath a crib, appellant may have been preparing an ambush. Consequently, to have delayed any further would have been risky and foolhardy on the part of the police. The revolver seized during appellant's arrest was properly admitted into evidence.

Third, appellant contends that his possession of the loaded revolver did not violate 18 Pa.C.S.A. § 907 (Possessing Instruments of Crime). ⁵ Appellant's contention is meritless. This Court must construe the words of a statute according to their plain meaning. 1 Pa.C.S.A. § 1903(a) (Statutory Construction Act of 1972); Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). Appellant was convicted of violating Section 907 of the Crimes Code, which plainly provides (a) Criminal instruments generally.--A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

....

An "Instrument of Crime" is defined to include:

[A]nything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

Appellant possessed a loaded revolver when he was arrested for the crime of escape; appellant clearly possessed an "instrument of crime", under Section 907(a). See Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980),...