Com. v. Thorne

• Court: Superior Court of Pennsylvania
• 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

Page 370

299 A.2d 370 223 Pa.Super. 122 COMMONWEALTH of Pennsylvania, Appellant,
v.
Lester Courtney THORNE.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Ronald Lee THORNE.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Clarence Junior THORNE. Superior Court of Pennsylvania. Dec. 11, 1972.
Petition for Allowance of Appeal Denied March 29, 1973.

[223 Pa.Super. 123] 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.

HOFFMAN, Judge:

The Commonwealth, appellant in this case, conceded in oral argument before this court that the inadmissibility[223 Pa.Super. 124] 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.

CERCONE, J., files a dissenting opinion in which WRIGHT, P.J., and PACKEL, J., join.

Page 371

CERCONE, Judge (dissenting):

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 [223 Pa.Super. 125] 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 [223 Pa.Super. 126] 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...