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COMMONWEALTH v. TUNSTALL (07/21/55)

July 21, 1955

COMMONWEALTH
v.
TUNSTALL, APPELLANT.



Appeal, No. 58, Oct. T., 1955, from judgment of Court of Quarter Sessions of Philadelphia County, April T., 1954, No. 318, in case of Commonwealth of Pennsylvania v. Calvin Tunstall. Judgment affirmed.

COUNSEL

A. Leon Higginbotham, Jr., with him Harvey N. Schmidt, Clifford Scott Green, and Schmidt, Green, Harris & Higginbotham, for appellant.

Victor Wright, Assistant District Attorney, with him Samuel Dash, Acting District Attorney, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, Woodside and Ervin, JJ., (hirt, J., absent).

Author: Rhodes

[ 178 Pa. Super. Page 360]

OPINION BY RHODES, P.J.

This is an appeal by defendant from conviction and sentence on an indictment charging him with being engaged in or maintaining an illegal lottery. Having waived a jury trial, appellant was tried and found guilty before President Judge CHARLES KLEIN, of the Orphans' Court of Philadelphia County, specially sitting in the Court of Quarter Sessions of Philadelphia County. On appeal appellant asserts the trial judge erred in refusing his motions for new trial and in arrest of judgment.

The Commonwealth's evidence showed that police officers observed appellant seated in his car three quarters of a block from his residence at 3915 Wallace Street, Philadelphia. As the officers approached, appellant placed a slip of paper in his mouth. One of the officers put his arm around appellant's neck and used force to take the slip of paper from appellant's mouth. This slip of paper, introduced in evidence by the Commonwealth over appellant's objection, contained fourteen straight number plays. Upon entering appellant's home, the officers found a cigarette pack on the floor in the vestibule beneath the mail slot in the door. Wrapped in this pack were "six yellow banker slips with 130 straight number plays and two code writers 26 and 26-A." The officers also confiscated $7 in money found on the dining room table at appellant's home; appellant admitted to the officers that this was "numbers money."

Appellant contends that the introduction in evidence of the slip of paper containing number plays, which had been removed from his mouth by force, and the use of this evidence by the Commonwealth at the trial to support the conviction violated his constitutional right to due process of law. We are agreed that the number slip was properly admissible in evidence

[ 178 Pa. Super. Page 361]

    although removed by force from appellant's mouth. In this Commonwealth it is settled that the admissibility of evidence is not affected by the illegality of the means by which it is obtained. Com. v. Dugan, 143 Pa. Superior Ct. 383, 387, 18 A.2d 84; Com. v. Montanero, 173 Pa. Superior Ct. 133, 96 A.2d 178; Com. v. Dabbierio, 290 Pa. 174, 138 A. 679; Com. v. Chaitt, 380 Pa. 532, 535, 112 A.2d 379. Thus, in Com. v. Statti, 166 Pa. Superior Ct. 577, 73 A.2d 688, it was held that extracting blood from a defendant without his consent for the purpose of making a blood test did not render the evidence inadmissible, and that it was not a violation of a defendant's constitutional privilege against self-incrimination. Admittedly in the Federal courts a different rule is recognized, and it has been held that the Fourth Amendment excludes evidence obtained by federal agents in an illegal search and seizure. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652; Lustig v. United States, 338 U.S. 74, 69 S. Ct. 1372, 93 L. Ed. 1819. However, the Federal rule does not apply to prosecutions in a state court for a state crime. Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782.

Appellant relies upon Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183, as controlling here. In the Rochin case police officers entered defendant's home without a warrant and forced open the door of his bedroom on the second floor where they came upon defendant sitting on the bed on which his wife was lying. The officers saw two capsules on a stand beside the bed. Defendant grabbed these and put them in his mouth. A struggle ensued; defendant was taken to a hospital, where, at an officer's direction, a doctor ...


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