Com. v. Silo

• Decision Date: 14 July 1978
• Citation: 480 Pa. 15,389 A.2d 62
• Parties: COMMONWEALTH of Pennsylvania v. Jerome SILO.
• Court: Pennsylvania Supreme Court

Page 62

389 A.2d 62

480 Pa. 15

COMMONWEALTH of Pennsylvania v. Jerome SILO.

Supreme Court of Pennsylvania.

Argued June 27, 1975.

Decided July 14, 1978.

[480 Pa. 17] Neil Jokelson, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., Philadelphia, for appellee.

Before JONES, C. J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

This is a direct appeal from a judgment of sentence of life imprisonment entered upon a jury verdict finding appellant guilty of murder of the first degree. ¹ The dispositive issue in this appeal is whether certain real evidence admitted at trial was obtained by an illegal search and seizure. The suppression court ruled that all of the challenged evidence was properly obtained. Since we disagree with the suppression court's finding as to certain items of evidence, we reverse the judgment of sentence and order a new trial. ²

In reviewing a suppression court's findings, this Court will consider the evidence of the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. ³ Commonwealth v. Harris, --- Pa. ----, ----, 387 A.2d 869, 873, (1978), Citing Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). On the morning of October 10, 1969, a police officer responded to a call from two neighbors of the victim, Mrs. Silvia Silo, appellant's mother. Upon arrival at the scene, the officer was informed by these neighbors that at about 10:00 a. m. on October 9, 1969, the day before, they had heard an argument and screams emanating from the victim's residence. They stated further that appellant had for many years resided there with his mother. At about 2:40 p. m. on the ninth appellant came outside and sat on the porch steps. Shortly thereafter he was picked up by a rescue squad vehicle and was taken to a nearby hospital for treatment of chest pains.

The neighbors told the officer that they did not see Mrs. Silo leave for work at her usual time, between 3:00 p. m. and 3:30 p. m., on the ninth and further that an upstairs window which Mrs. Silo usually closed was left open overnight. They also said that they had telephoned the hospital and Mrs. Silo's place of employment and learned that she had not been seen at either place.

Given this information, the police officer, on the tenth, called the hospital where appellant was being treated and arranged with the hospital to pick up appellant's house key. The officer then drove to the hospital, obtained the key from a nurse, and returned to the Silo residence. The officer then radioed for assistance from another officer. When the second officer arrived, the officers unlocked the front door to the Silo house and entered. Once inside they discovered Mrs. Silo's dead body in the kitchen; subsequent medical examination revealed that death was caused by numerous stab wounds.

After discovering the body, the officers secured the area and requested assistance from homicide detectives. Several detectives arrived and after inspecting the kitchen, two of the detectives went to the hospital to attempt to interview appellant concerning his mother's death. At about 12:30 p. m., upon arriving at the hospital's intensive care unit where appellant was being treated, the officers questioned a nurse on duty about the diagnosis of appellant, because the officers were concerned about interviewing appellant while he was in intensive care. The nurse responded that she did not know the diagnosis or prognosis and that the officers should wait to talk to the physician who was familiar with appellant's condition.

While waiting for the doctor, the officers asked the nurse to give them any personal belongings that appellant had when he was admitted to the hospital. Pursuant to this request, the nurse went into the ward and returned and gave the officers the clothing appellant was wearing when he was admitted. The officers inspected the clothing and noted what appeared to be blood stains on appellant's trousers, undershorts, and inside the pockets of the trousers. Later laboratory tests showed that the blood on these items of clothing matched the victim's blood. This clothing was retained by the officers as evidence.

After waiting for approximately an hour, the officers finally were informed by a physician that there were no indications that appellant had a heart condition. The officers were then permitted to interview appellant. Appellant was then given his Miranda ⁴ warnings. He made no statement. The record indicates that during the time the officers were waiting to interview appellant they were at or near a counter outside of the door to the ward where the appellant was located. Appellant was visible to them and was attached to some type of heartbeat monitor. Police testimony indicated that the officers were at the hospital for approximately two hours.

While the police were at the hospital, detectives conducted a search of the Silo residence. One detective noted "swipe marks" in the blood on the kitchen floor surrounding the victim's body, as if someone had attempted to mop up the blood; the detective also noted a trail of blood between the kitchen and the dining room. At about 3:30 p. m. on the tenth, detectives searched the upstairs of the house. In appellant's bedroom, the police found a bloody V-neck sweater under the bedspread. Later examination matched the blood on the sweater with the victim's blood type. The sweater was retained by police as evidence.

The clothing taken from the hospital and the sweater taken from appellant's bedroom constituted the key circumstantial evidence upon which the prosecution based its case. ⁵ None of this evidence was seized pursuant to a search warrant.

Appellant contends that the warrantless seizure of his clothing by police from his hospital room without his knowledge or consent violated his rights under the fourth amendment to the United states Constitution. ⁶ We agree.

We begin our analysis with the oft-stated proposition that warrantless searches and seizures are Per se unreasonable "subject only to a few specifically established and well-delineated exceptions." E. g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); See Commonwealth v. Shaffer, 447 Pa. 91, 103, 288 A.2d 727, 734 (1972), Cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); Commonwealth v. Cockfield, 431 Pa. 639, 644, 246 A.2d 381, 383 (1968). Furthermore, in this jurisdiction the burden is upon the Commonwealth to prove by a preponderance of the evidence that a search or seizure did not violate the fourth amendment.

Commonwealth v. Ravenell, 448 Pa. 162, 166, 292 A.2d 365, 367 (1972); Commonwealth v. Mazzella, 231 Pa.Super. 247, 250, 331 A.2d 784, 785 (1974); See Pa.R.Crim.P. 323(h).

The Commonwealth advances two basic arguments to justify the warrantless seizure of appellant's clothing at the hospital. First, it is asserted that the seizure was incident to the lawful arrest of appellant. In support of this theory, the Commonwealth cites United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); Commonwealth v. Hrynkow, 457 Pa. 529, 330 A.2d 858 (1974); Commonwealth v. Gordon, 431 Pa. 512, 246 A.2d 325 (1968), Cert. denied, 394 U.S. 937, 89 S.Ct. 1215, 22 L.Ed.2d 469 (1969).

The problem with the Commonwealth's reliance on these cases is that in each one the seizure of evidence occurred After the defendant was lawfully placed under arrest. In Edwards the police seized defendant's clothing from him while he was in a jail cell. United States v. Edwards, supra, 415 U.S. at 801-02, 94 S.Ct. 1234. Similarly, in Hrynkow, Defendant's coat was taken from him by police at headquarters after his arrest and identification by the victim. Commonwealth v. Hrynkow, supra, 457 Pa. at 532, 536-37, 330 A.2d at 860, 862-63. Similarly, in Gordon the police seized defendant's clothing at a hospital after he had been taken into police custody. Commonwealth v. Gordon, supra, 431 Pa. at 515-16, 518, 246 A.2d at 327, 328.

The crucial question in the instant case is whether appellant had been arrested before his clothing was seized. The test for whether an arrest has occurred is as follows:

"An arrest may be accomplished by 'any act that indicates an intention to take (a person) into custody and subjects him to the actual control and will of the person making the arrest.' "

Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), Cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963); See Commonwealth v. Farley, 468 Pa. 487, 494, 364 A.2d 299, 302 (1976). In this case, the only pre-seizure actions by the police officers were their arrival at the intensive care ward and their presence there before requesting appellant's clothing from the nurse. The officers did not communicate to appellant any intention of taking him into custody. The reading of the Miranda warnings to appellant did not occur until almost an hour after the police had seized appellant's clothing. The arrival and presence of the police at the hospital ward cannot constitute an arrest under the test articulated in Bosurgi. ⁷ Therefore, we cannot accept the Commonwealth's argument that appellant's clothing was seized incident to an arrest.

The Commonwealth's second theory in support of the warrantless seizure of appellant's clothing rests upon the proposition that when appellant voluntarily placed himself under hospital care, he surrendered control of his personal effects and thus gave up any exclusive right to privacy as to those effects....