Commonwealth v. Freeman

• Decision Date: 26 February 1982
• Citation: 441 A.2d 1327,295 Pa.Super. 467
• Parties: COMMONWEALTH of Pennsylvania, v. Matthew FREEMAN, Appellant.
• Court: Pennsylvania Superior Court

441 A.2d 1327

295 Pa.Super. 467

COMMONWEALTH of Pennsylvania, v. Matthew FREEMAN, Appellant.

Superior Court of Pennsylvania.

February 26, 1982

Argued June 10, 1980.

John L. Lachall, West Chester, for appellant.

Lee Ruslander, Asst. Dist. Atty., West Chester, for Commonwealth appellee.

Before HESTER, CAVANAUGH and VAN der VOORT, JJ.

CAVANAUGH Judge:

This is an appeal from judgments of sentence imposed after a Chester County jury convicted appellant, Matthew Freeman, of rape, involuntary deviate sexual intercourse, burglary and terroristic threats. On August 17, 1978, Georgette Eachus was allegedly raped and orally sodomized at knifepoint by a male she claimed to have met the previous day. Appellant, found that date in possession of a stolen vehicle, ^[1] was charged with the instant crimes on August 18, 1978. After the denial of appellant's suppression motions, a jury trial ensued at which appellant, testifying in his own defense, argued that his encounter with Ms. Eachus was consensual. Following his conviction, appellant raised, and the trial court rejected myriad post-verdict claims, seven of which are also raised in this appeal. We consider them seriatim and affirm.

Appellant first challenges the suppression court's conclusion that he lacked standing to object to the search of the stolen car in which he was found. ^[2] Two searches occurred here: the first was a warrantless search on August 17, 1978, during which police discovered, but did not seize, a knife; that knife was seized during a second search, conducted with a warrant, on August 18, 1978. In this appeal, appellant objects to the court's ruling only as to the first search. Essentially, appellant argues that the decision of United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) grants him standing to object to the search of the car in his possession on August 17, notwithstanding the fact that his possession of that car was unlawful. He thus urges us to overturn the lower court's allegedly erroneous standing ruling and remand this case for purposes of determining the legality of the warrantless search.

Although not dispositive of the particular standing issue presented by this appeal, we find appellant's reliance on Jones to be inapposite. The Jones court conferred "automatic standing" on defendants charged with possessory offenses and, alternatively, permitted anyone "legitimately on premises" to challenge the legality of a search therein. The viability of Jones, however, was at best questionable at the time of appellant's suppression hearing. The "automatic standing" doctrine of Jones was eroded, although not explicitly repudiated, in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and any residual significance of that rule was extinguished in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Moreover, in Rakas v. Illinois, 439 U.S. 128, 142, 99 S.Ct. 421, 429, 58 L.Ed.2d 387, 400 (1978), rehearing denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979), the Court rejected the second prong of Jones when it found that "the phrase 'legitimately on premises' ... creates too broad a gauge for measurement of Fourth Amendment rights." It is now settled that entitlement to the exclusionary rule will be available only to defendants able to demonstrate that their legitimate expectation of privacy was invaded by the allegedly illegal search and seizure. See Commonwealth v. Sell, 288 Pa.Super. 371, 432 A.2d 206 (1981) (adopting the Salvucci-Rakas test; defendant had no expectation of privacy when he placed firearms on a shelf commonly used by fellow employees as a storage area).

We find it difficult, if not impossible, to imagine a situation where one whose presence in an automobile is unlawful can have a legitimate expectation of privacy so as to entitle him to Fourth Amendment protection when that automobile is the object of a search. Although expressly not deciding whether appellant had standing to challenge the admissibility of physical evidence seized from a stolen truck, Judge Popovich, writing for the majority in Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 at 994 n.3 (1981) noted "... because appellant's presence in the truck was unlawful, any claim to a reasonable expectation of freedom from government intrusion into a stolen vehicle would be ludicrous.

We need not, however, employ the Salvucci-Rakas analysis in order to conclude that the lower court properly determined that appellant lacked standing to object to the search of the stolen car in which he was found. The Supreme Court in Rakas made clear that, even under Jones, appellant would not have been permitted to challenge the lawfulness of the car search. In rejecting the holdings of the very cases which appellant herein cites as supporting authority, the court stated:

The Court in Jones was quite careful to note that "wrongful" presence at the scene of a search would not enable a defendant to object to the legality of the search. 362 U.S. at 267, 80 S.Ct. 725 (at 734), 4 L.Ed.2d 697, 78 A.L.R.2d 233. The Court stated: "No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched." Ibid. (emphasis added). Despite this clear statement in Jones, several lower courts inexplicably have held that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile. See, e.g., Cotton v. United States, 371 F.2d 385 (CA9 1967); Simpson v. United States, 346 F.2d 291 (CA10 1965).

439 U.S. at 141 n.9, 99 S.Ct. at 429 n.9, 58 L.Ed.2d at 399-400 n.9. Because the lower court's ruling is unassailable under both Salvucci-Rakas and Jones, we find appellant's claim to be meritless.

Appellant next contends that the suppression court erred in finding probable cause for the issuance of a search warrant pursuant to which his tan trousers were seized. State Trooper Richard O'Brien, the police affiant who obtained the warrant, based his probable cause claim on several factors: his conversation with the victim in the evening of August 17 during which she described the male who raped her that morning and his attire, most notably his tan trousers; his personal observation four hours later of appellant whose appearance seemed to match the description given by the victim; his further observation that appellant was wearing tan trousers; his information that appellant was wearing tan trousers when arrested by Schylkill Township police earlier on August 17; his knowledge, obtained from a Captain Brockett, that the tan trousers were presently being stored in the identification room at Chester County Prison Farms where appellant was incarcerated. Based on the foregoing information, Trooper O'Brien stated that he believed the trousers to be of possible evidentiary value in the rape investigation, thereby justifying the issuance of a warrant for their seizure.

Claiming the inadequacy of probable cause to search, appellant argues that (1) the warrant affidavit did not indicate facts supporting the affiant's belief that information provided by the victim and Captain Brockett was reliable as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and (2) the victim's description of her assailant was too general to conclude that appellant was the same male.

While individual portions of the affidavit might not alone supply probable cause, we find that a consideration of the affidavit in its entirety, including the affiant's personal observations, supports the magistrate's issuance of the search warrant. Commonwealth v. Edwards, 493 Pa. 281, 290, 426 A.2d 550, 554 (1981) (statements of different informants may support each other when taken together). To dissect this affidavit in the manner urged by appellant would involve us in the type of hypertechnical evaluation which our courts have purposely long avoided. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 689 (1965). Since a common-sense reading of the affidavit supports the conclusion that appellant was the victim's likely assailant and that his tan trousers were to be found at the Chester County Prison Farms, the court properly denied appellant's motion to suppress the evidentiary usage of the trousers. We further reject, as it is unsupported by the record, appellant's additional charge that the prison search was unlawfully executed.

In his third claim of error appellant contends that the trial court should have granted his request for individual voir dire to explore racial prejudices of the prospective jury panel. Appellant maintains that where, as here, a black defendant is accused of sex crimes against a white victim, individual voir dire is the only means by which to obtain racially impartial factfinders. We fail to find error in the court's refusal to allow individual questioning and, furthermore, cannot agree with the presumption of racial prejudice inherent in appellant's argument.

To secure a fair and impartial jury, a court may, in its discretion and in a non-capital case, grant the right to conduct individual voir dire of prospective jurors. Pa.R Crim.P. 1106(e); Commonwealth v. Mayo, 272 Pa.Super. 115, 119, 414 A.2d 696, 698 (1979); Commonwealth v. Gore, 262 Pa.Super....