Com. v. Wagner

• Decision Date: 04 October 1979
• Citation: 486 Pa. 548,406 A.2d 1026
• Parties: COMMONWEALTH of Pennsylvania v. J. Oscar WAGNER, Appellant.
• Court: Pennsylvania Supreme Court

Page 1026

406 A.2d 1026

486 Pa. 548

COMMONWEALTH of Pennsylvania v. J. Oscar WAGNER, Appellant.

Supreme Court of Pennsylvania.

Submitted May 21, 1979.

Oct. 4, 1979.

[486 Pa. 551] E. Franklin Martin, Asst. Public Defender, for appellant.

John R. Walker, Dist. Atty., for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO, LARSEN, and FLAHERTY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

Appellant, J. Oscar Wagner, was tried by a jury and convicted of aggravated assault. The Superior Court affirmed per curiam. Commonwealth v. Wagner, 250 Pa.Super 644, 379 A.2d 615 (1977). Post trial motions were denied. In the appeal before us, appellant contends, inter alia, that he was the subject of an unlawful arrest. We agree and accordingly reverse the judgment of sentence and discharge the appellant.

The relevant facts are these: one Veloris Dean was charged with and plead guilty to the theft of various tools and equipment. The theft occurred in July, 1974. At sentencing, Dean volunteered information implicating appellant as an accomplice. A state trooper who was in the courtroom at the time of sentencing overheard this colloquy between the court and Dean. Later, upon further questioning, Dean advised the trooper that appellant had participated in the theft, that he had split the stolen property and money with Dean, and that he was living with Dean's sister, Vellora Short, at 535 Rife Street, Chambersburg, Pennsylvania. Dean described appellant's automobile as "a white Hornet with the rear end or trunk lid smashed in."

The trooper relayed this information to his superiors, who thereupon directed Trooper R. W. Lingenfelter to obtain a warrant for appellant's arrest and to apprehend him. Lingenfelter proceeded to the Office of the District Justice, where he relayed the facts. After the Complaint was prepared, Lingenfelter was put under oath by the District Justice and swore to the facts set forth in the Complaint, which are as follows:

"Count 1 THEFT That he did there and then unlawfully take or exercise unlawful control over, movable property of another with intent to deprive him thereof. Items stolen were: various Quarry tools, belonging to Joseph R. Zeek, R.D. 1, Orrstown, Pa. 17240. Value of items $150.00 Count 2 THEFT That he did there and then unlawfully or exercises unlawful control over movable property of another with intent to deprive him thereof. Items stolen were approx. 140 lb. copper wire and damaged a security light. Total value $175.00, belonging to Adams Ele. Co. Op. 204 W. King Street, Shippensburg, Pa. 17257 . . . "

Based upon these facts, the District Justice concluded that there was probable cause to issue an arrest warrant and so issued one at approximately 3:45 p. m. on January 15, 1975.

Trooper Lingenfelter proceeded immediately to 535 Rife Street in search of appellant. No one was home and he did not observe the white Hornet in the area.

Lingenfelter returned to 535 Rife Street at approximately 7:30 p. m. that evening. This time he observed the white Hornet with the smashed-in trunk lid, and as he approached the house he observed a man dart past the window. A small boy, approximately five or six years old, answered the trooper's knock and told him that the appellant was there. Mrs. Short, the owner of the premises, then came to the door and in response to the trooper's request stated that appellant was not there. At the same time the little boy repeated several times that appellant was in the home.

Trooper Lingenfelter left the premises and reported to his superior that he believed appellant was in the home. He was advised that Trooper David Burke would be sent to assist him.

Accompanied by Trooper Burke, Trooper Lingenfelter returned to 535 Rife Street at about 8:00 p. m. Mrs. Short answered the door. Trooper Lingenfelter identified himself as a police officer, stepped into the home, stated that he had an arrest warrant for appellant and that he believed he was hiding there. At that time, one James Pine appeared and stated that he was the male Trooper Lingenfelter had seen in the window.

In the hallway, Mrs. Short advised the officers that she objected to their presence in her home without a search warrant. Trooper Lingenfelter again told her that he believed appellant was hiding there, and she persisted in her statements that he was not present.

At that time, Trooper Lingenfelter observed a light in the bedroom and proceeded to enter that room. He announced, "J. Oscar Wagner, I have a warrant for you." Lingenfelter opened up the closet door, whereupon he was confronted by appellant who was holding a revolver and pointing it at him. Appellant ordered the trooper to "put up his hands" and stated that he was not being taken, that he would not go with the trooper, and that he wanted to see a search warrant. Lingenfelter urged appellant to give up the gun, and ultimately, with Trooper Burke's assistance secured the revolver.

Appellant was subsequently tried by jury and acquitted of the theft charges. In the instant appeal, appellant asserts that his arrest was unlawful and that as a consequence, his conviction for aggravated assault must fall. ¹ We find that appellant's arrest was in violation of the 4th Amendment to the U.S. Constitution as well as Article I § 8 of the Pennsylvania Constitution and therefore hold that his conviction under 18 Pa.C.S.A. § 2702(a)(2) must be vacated.

Initially, we must determine whether appellant has standing to challenge the lawfulness of the search of Mrs. Short's home, which resulted in his arrest. For in seeking to arrest a person, the police are, in effect, conducting a search for that person. The appropriate inquiry in approaching the standing question is whether appellant had a reasonable expectation of privacy, i. e., freedom from governmental intrusion, in the invaded place. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), Katz v. U. S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

To answer this question, we must examine the nature of appellant's relationship with Mrs. Short and the circumstances surrounding his presence in her home. The record indicates that appellant and Mrs. Short were affianced and that he spent a good deal of time at her home, including nights and weekends. Indeed, Veloris Dean testified that appellant lived with his (Dean's) sister, Vellora Short. When called to testify, however, appellant gave as his address a post office box in Rouzerville, Pennsylvania. Although the record is somewhat unclear on this point, it appears that appellant shared a post office box with his sister in Rouzerville.

Given these facts, ² we must conclude that appellant had a reasonable expectation of privacy in the premises searched. We have indicated previously that the inquiry turns upon appellant's use of the premises. Commonwealth v. Strickland, 457 Pa. 631, 326 A.2d 379, 382 (1974). ³ The facts indicate that the Short home was tantamount to being appellant's residence (or at least one of his residences); therefore, he had a reasonable expectation of privacy therein.

Having determined that appellant has standing, we now turn to a consideration of the lawfulness of his arrest. The initial inquiry concerns the validity of the arrest warrant. The Commonwealth concedes in its brief that there is not a sufficient showing of probable cause on the face of the affidavit and hence, that the warrant is invalid. We agree, for the reason that the affidavit did not contain sufficient information for the issuing magistrate to independently conclude that probable cause existed for the arrest. Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), Commonwealth v. Flowers, 245 Pa.Super. 198, 369 A.2d 362 (1972).

Given that the warrant is insufficient, we must determine whether there exist any grounds to support a warrantless arrest. In approaching this question, it is necessary to note 18 Pa.C.S.A. § 3904, which gives the police "the same right of arrest without a warrant for any grade of theft as exists or may hereafter exist in the case of the commission of a felony". It is well established that a warrantless arrest for a felony will be upheld where the police have probable cause to believe that a felony has been committed and that the person to be arrested is the felon. Commonwealth v. Jackson, 450 Pa. 113, 299 A.2d 213 (1973). The same rule applies to theft offenses by virtue of 18 Pa.C.S.A. § 3904. However, the right to execute a warrantless arrest within a private dwelling has been strictly curtailed by our decision in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978). There, we held that an arrest warrant is required to validly arrest someone in his home unless exigent circumstances exist to justify the warrantless intrusion.

The Commonwealth has urged upon us in its brief that the Short residence was also appellant's "home", and thus the entry by the police did not constitute entry into the home of a third person. We have stated that notwithstanding the fact that Mrs. Short actually owned the house, appellant was living there and hence, it was his home as well. Consequently, the standards set forth in Williams governing entry into the arrestee's home for the purpose of making an arrest control the instant case. ⁴

The first step in determining whether the warrantless arrest will be upheld is to ascertain whether there existed probable cause at the time of the arrest. Probable cause exists if "the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime." Commonwealth v. Perry, 468 Pa. 515, 520, 364 A.2d 312, 315 (1976), Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975). ⁵ We have repeatedly acknowledged that a statement by one defendant,...