Com. v. Thorne
| Citation | 299 A.2d 370,223 Pa.Super. 122 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Lester Courtney THORNE. COMMONWEALTH of Pennsylvania, Appellant, v. Ronald Lee THORNE. COMMONWEALTH of Pennsylvania, Appellant, v. Clarence Junior THORNE. |
| Decision Date | 11 December 1972 |
| Court | Superior Court of Pennsylvania |
R. Bigham, Asst. Dist. Atty., Oscar F. Spicer, Dist. Atty., Gettysburg, for appellant.
Robert E. Campbell, Gettysburg, for appellee at No. 417.
Henry O. Heiser, III, Gettysburg, for appellee at No. 418.
Gary E. Hartman, Gettysburg, for appellee at No. 419.
Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
The Commonwealth, appellant in this case, conceded in oral argument before this court that the inadmissibility of the suppressed evidence would not substantially handicap the prosecution of this case. An examination of the suppression hearing record indicates that this is true. In light of Commonwealth v. Bosurgi, 411 Pa. 56, 63, 190 A.2d 304 (1963) and Commonwealth v. Pomponi, 436 Pa. 565, 568, 259 A.2d 872 (1970), such an admission requires that this appeal be quashed without determining the validity of the search.
Lester Courtney Thorne, Ronald Lee Thorne, and Clarence Junior Thorne, brothers, were arrested and charged with burglary, larceny, and receiving stolen goods, all charges arising out of a burglary of two bowling alleys near Gettysburg, Adams County, Pennsylvania.
Evidence in support of the charges was obtained as the result of a warrantless search by the Maryland State Police as follows: On March 21, 1970, acting on information received from the Virginia State Police, Maryland State Police officers went to the home rented by Faye Browning and Lester Browning (Lester Thorne) in Colora, Maryland. Mrs. Browning was then at home and signed a written consent to a search of the premises by the officers, which consent was witnessed by one Arlene Weigle, a periodic occupant of the home. Accompanied by Mrs. Browning and Mrs. Weigle, the officers searched the first and second floors. On the second floor they found a locked door which was identified as Ronald Thorne's room. Mrs. Weigle stated that she had shared the room for the night and had accidentally locked the door on her way out of the room that morning. The officers testified that with Mrs. Browning's permission they forced the door open; Mrs. Browning and Mrs. Weigle testified that Mrs. Browning forced it open by bumping up against the door.
The officers entered the room, made a search thereof, and seized some evidence of the crimes. Several weeks later they returned on April 11, 1970, finding Mrs. Browning and Mrs. Weigle in the process of moving out of the premises with none of the rooms being locked and all the goods gathered in one room. Mrs. Browning again consented in writing to a search of the premises and the officers took with them certain other items of evidence, but granting Mrs. Weigle permission and authority to remove some items to her home in Dillsburg, Pennsylvania. The Maryland State Police then informed the Pennsylvania authorities via teletype as to the items Mrs. Weigle was permitted to remove to Dillsburg. Subsequently, upon request by the Poennsylvania authorities, Mrs. Weigle voluntarily relinquished those items to them at her home in Dillsburg.
After hearing on defendants' motions to suppress, the court below suppressed 'any evidence secured from the room occupied by Ronald Lee Thorne at the Colora, Maryland premises and as to any evidence secured from Mrs. Arlene Weigle at her Dillsburg, Pennsylvania residence'. The Commonwealth has appealed.
At the hearing on the motions to suppress, it was established that the lease for the premises in Colora, Maryland was in the names of Faye Browning and Lester Browning (Lester Thorne); that Mrs. Browning, with the exception of the amount of $50.00, had paid the rent from November 1969 to April 1970; that Ronald Thorne paid no rent and made no contribution toward the payment of the rent; that there was no understanding as to how long he was to stay at the home. Mrs. Browning testified: 'I was told that they (Ronald and Clarence Thorne) would spend some time there, that they would be there sometimes, sometimes they wouldn't be there.' Mrs. Browning also testified that Clarence and Ronald first slept on the couch or on a mattress on the floor; later her four children who had been using two separate bedrooms were placed in one bedroom, and Ronald then began using the bedroom in question. He placed a lock on the bedroom door and told her she shouldn't bother going into it and he would see it was cleaned.
The issue now is whether under these circumstances Mrs. Browning had the right to consent to a search of the room occupied by Ronald. We first start with the proposition that as a co-tenant, especially as one paying the rent for the premises, Mrs. Browning did have authority to consent to a search of the leased premises. As stated in United States v. Sferas, 210 F.2d 69, 74 (1954) (CCA--7): '. . . where two persons have equal rights to the use or occupation of premises, either may give consent to a search . . .' The question now is: Was Mrs. Browning's authority to give valid consent to the search of the leased premises limited by Ronald's use of a bedroom and his placing a lock on the bedroom door with instructions for privacy.
A mere gratuitous guest who had no enforcible right to occupancy or possession of the premises and whose occupancy was solely at the largess of Mrs. Browning, Ronald Thorne could not, by placing a lock on the door of the room permitted to be occupied by him and by demanding privacy, foreclose and prevent Mrs. Browning's dominion over that room of which she was the co-tenant and for which she was paying the rent without any contribution by Ronald Thorne or in fact, without any contribution by his brother Lester Thorne, the co-tenant. The holding in Weaver v. Lane, 382 F.2d 251 (7th Cir. 1967), is here applicable. In that case the Circuit Court reasoned and held as follows: 'The District Court speaks of the petitioner's having 'rented' his room in the Carroll home. The respondent disputes that finding. The issue becomes important in connection with recovery of clothing petitioner had worn early on the morning of November 18, 1960. Mrs. Carroll granted permission to Detective Garner to search the room which the petitioner had been using. He took possession of blood-stained trousers which were admitted in evidence at the trial. The District Court held that these were illegally seized.
'Mr. Weaver testified that he had been staying with the Carrolls for about a week, on an arrangement that he would stay with them for a few days until he could find a place to rent, that he would leave when he way ready. He stated that he did pay 'rent' in that he provided them with a carpet for their living room and that he occasionally helped with money for groceries when the Carrolls were short. There was no set limit on his stay as to time or allocation of the gift of the carpet or funds for groceries.
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