Com. v. Williams

• Decision Date: 04 April 1979
• Citation: 396 A.2d 1286,262 Pa.Super. 508
• Parties: COMMONWEALTH of Pennsylvania v. George WILLIAMS, Appellant.
• Court: Pennsylvania Superior Court

Page 1286

396 A.2d 1286

262 Pa.Super. 508

COMMONWEALTH of Pennsylvania v. George WILLIAMS, Appellant.

Superior Court of Pennsylvania.

Argued June 15, 1977.

Decided Dec. 29, 1978.

Petition for Allowance of Appeal Granted April 4, 1979.

Margaret H. Poswistilo, Asst. Public Defender, Easton, for appellant.

Allan B. Goodman, Asst. Dist. Atty., Bethlehem, submitted a brief for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

PRICE, Judge:

Following a jury trial on November 19, 1975, appellant was convicted of robbery ¹ and conspiracy. ² Post-trial motions were denied, and a sentence of two to four years imprisonment plus payment of the costs of prosecution and of restitution was imposed. Eight issues are raised in the instant appeal.

In October of 1974, police in Easton, Pennsylvania, initiated surveillance of a third-floor apartment at 922 Washington Street in that community. The police had information linking Carl Brown, a prison escapee, to this residence, and they possessed warrants for Brown's arrest for armed robbery and prison breach. Late in the evening of October 17, and early on October 18, the eighth and ninth days of their observation, the officers saw a man and woman come to the apartment and join Henry Curtis James, the lessee, and his female companion. Two other males arrived separately within approximately the next two hours. When the last man to arrive, later identified as Brown, took off his coat, he was seen to be armed with a large hand-gun carried in a shoulder holster. The officers next saw two other men, later identified as appellant and Hugh Pace, changing clothes. Carl Brown took a brown paper bag from beneath the sink and tucked it into his belt. The trio then began to don their coats, apparently in preparation to leave the apartment. At this point, two members of the surveillance team attempted to reach the street in time to follow the three men, but were unable to do so. The officer who remained at the surveillance point saw the direction in which the men proceeded.

About ten minutes later, the three men came running back to the front porch at 922 Washington Street. Two of the men hurriedly attempted to unlock the front door, while the third looked up and down the street, saying, "Hurry up, hurry up, the cops are all over the place." At this point, the observing officer had his first clear view of the man's face and identified him as Carl Brown. Shortly after the three men re-entered the apartment, the officer radioed the chief of police that Brown had appeared. Immediately thereafter, the officer received a radio dispatch that an armed robbery had just occurred at Pete's Bar, approximately a block and a half from the scene. Before leaving his surveillance point, the officer saw Pace and appellant change their clothes, while Brown removed only his jacket and hat.

Based on the observations of the surveillance party and the information regarding the robbery, the police concluded that Brown and his companions were the robbers and proceeded to surround the apartment. Brown was subsequently shot and killed while attempting to flee. Pace and appellant were arrested in the hallway immediately outside the apartment. Upon entering the apartment, the police found numerous items of evidence in plain view: one wallet on a windowsill and another on the floor, a brown paper bag containing change lying on the floor, currency stuffed into a partially open drawer beneath the kitchen table, and numerous articles of clothing. This evidence was held admissible following a pre-trial suppression hearing, but that ruling was later overturned by the court en banc, which reversed appellant's first conviction and granted him a new trial.

The first point of error appellant asserts regarding his second trial is that all evidence stemming from the warrantless surveillance of the apartment at 922 Washington Street should have been suppressed. It is argued that police use of binoculars and a "startron" to conduct their surveillance from the third floor of a building forty to fifty feet from the subject premises constituted an unconstitutional search. The startron is a device which enables the observer to see into areas which would appear dark to the naked eye or through conventional binoculars. The location of the police surveillance team accorded them a view of the living room window and the kitchen window of the third-floor apartment. A portion of the bedroom could be seen through the living room window when the bedroom door was open. Neither window had curtains or shades.

It is contended that the third-floor location of the apartment gave the occupants a legitimate expectation of privacy as to activities occurring therein. Appellant relies upon Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as supporting his position that the surveillance in this case constituted a search. In Katz, government agents attached a listening and recording device to the outside of a public telephone booth to secure evidence of the suspect's transmission of wagering information by phone. The United States Supreme Court there stated that "the Fourth Amendment protects people not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. (Citations omitted). But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, supra at 351-52, 88 S.Ct. at 511.

The Court further pointed out that prior case law indicating that no search could take place without physical trespass or the seizure of material objects, was no longer viable. In sum, the Court held that the government's actions violated the defendant's legitimate expectation of privacy and constituted a search which was in violation of constitutional requirements because no warrant had been obtained.

We must initially decide if the police surveillance in this case was a search under Katz. The decision in Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970), Cert. denied, 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971), is instructive on this question. In Hernley, an FBI agent received information which led him to suspect that football gambling forms were being printed in the appellant's printshop. One evening, the agent noticed that the presses in the shop were operating, but he was unable to observe any activity within the building because of the height of the windows. To solve this dilemma, the agent employed a four foot ladder which he placed on the railroad tracks abutting the appellant's property, thirty to thirty-five feet from a shop window. From this vantage point the agent, using binoculars, was able to see betting sheets being produced. Analyzing the appellant's fourth amendment claim, the Hernley court first noted that the use of binoculars to make visual observations was not unreasonable, citing Johnson v. State, 2 Md.App. 300, 234 A.2d 464 (1967), and Fullbright v. United States, 392 F.2d 432 (10th Cir.), Cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968). Recognizing that Katz had eliminated the necessity that a physical trespass occur in order for a surveillance to be unreasonable, the court turned to the two part standard expressed in Justice Harlan's concurring opinion in Katz : (1) that the subject had demonstrated an actual expectation of privacy, and (2) that society be able to view this expectation as reasonable. Applying this test to the facts, the court held as follows:

"Our case presents the situation in which it was incumbent on the suspect to preserve his privacy from visual observation. (Footnote omitted). To do that the appellees had only to curtain the windows. Absent such obvious action we cannot find that their expectation of privacy was justifiable or reasonable. The law will not shield criminal activity from visual observation when the actor shows such little regard for his privacy." Commonwealth v. Hernley, supra, 216 Pa.Super. at 182, 263 A.2d at 907. See also Commonwealth v. Busfield, 242 Pa.Super. 194, 363 A.2d 1227 (1976).

We find that although there are significant factual differences in the cases, appellant's fourth amendment claim is controlled by the reasoning in Hernley. It is contended that the third-floor location of the apartment entitled the occupants to a greater expectation of freedom from observation. The surveillance in question, however, took place from a location on the third floor of a residence directly across from the apartment building. The susceptibility of the apartment to observation from this location was apparent. In Hernley, on the other hand, there was no obvious point from which observation could take place, necessitating the use of an outside instrumentality, the ladder, to make the surveillance possible. Considering all the factors advanced by appellant the location of the apartment, the duration of the surveillance, the use of binoculars and of the startron it remains irrefutably clear that just as in Hernley, the occupants of the apartment could have precluded all observation by the simple expedient of curtaining or otherwise covering the windows. Applying the standard of a balancing of interests between the security of public order by detection and prevention of crime and a person's immunity from police interference into his privacy, Commonwealth v. Hernley, supra, we find that the surveillance in this case did not violate appellant's fourth amendment rights.

Appellant maintains that the use of a startron as a part of the surveillance herein violated the apartment occupants' reasonable expectation that their activities in unlit rooms at night would be private. For two reasons, we are not persuaded by this argument. First, the use of curtains or other window coverings would have rendered the startron, as well as...