Appeals, Nos. 80 and 81, Oct. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, Nov. T., 1960, Nos. 1403 and 1404, in case of Commonwealth of Pennsylvania v. Samuel Richards. Order reversed.
Arlen Specter, Assistant District Attorney, with him Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.
Isaiah W. Crippins, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 41]
Defendant was found guilty by a judge sitting without a jury on all counts of an indictment charging possession of drugs, assault and battery upon a police officer, and resisting arrest. At trial defendant's preliminary motion to suppress certain evidence, consisting of bags of marijuana, allegedly obtained by the police through an illegal search and seizure at defendant's apartment was overruled after an extensive hearing. Following the trial and the finding of guilty, the court below granted defendant's motion in arrest of judgment on all counts solely on the ground that the narcotic drugs were illegally seized and the arrest was invalid. In so ruling the court below held that the recent decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, compelled a conclusion that the search and seizure without a warrant in the present case were illegal and the evidence obtained should have been excluded. The Commonwealth has appealed.
The right of the Commonwealth to appeal from an order arresting judgment after a verdict of guilty is clear. Com. v. Kolsky, 100 Pa. Superior Ct. 596, 599;
[ 198 Pa. Super. Page 42]
obtained thereunder must, under the Fourteenth Amendment, be excluded in state criminal prosecutions. Not all searches and seizures are prohibited, those which are reasonable not being forbidden. 79 C.J.S., Searches and Seizures, § 8, p. 786.
Section 8, article I of the Constitution of the Commonwealth of Pennsylvania contains a provision similar to the Fourth Amendment to the Constitution of the United States guaranteeing privacy. In Pennsylvania "Whether search and seizure is or is not unreasonable must be determined from the facts in each particular case." Com. v. Husinger, 89 Pa. Superior Ct. 238, 241; affirmed 290 Pa. 185, 138 A. 683. "What is 'unreasonable' is left to judicial determination." Com. v. Dugan, 143 Pa. Superior Ct. 383, 386, 18 A.2d 84. In fact, the general principle of law is the same under the federal rule. As Mr. Justice MINTON stated in United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653, 659: "What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case." Mr. Justice FRANKFURTER pointed out in his concurring opinion in Chapman v. United States, 365 U.S. 610, 618, 81 S.Ct. 776, 781, 5 L.Ed.2d 828, 834: "Surely it is fair to say that the lower courts and prosecutors have a right to proceed on the assumption, on the basis of controlling decisions, that whether or not a search is 'unreasonable' turns on the circumstances presented by a particular situation, as a matter of substantive determination."*fn3
[ 198 Pa. Super. Page 44]
The evidence produced at the trial and on defendant's motion to suppress discloses the following: Three officers of the narcotics squad received information on November 2, 1961, at approximately 4:45 p.m. from an informer at Fortieth Street and Girard Avenue, Philadelphia, that defendant illegally possessed narcotics in his second floor apartment at 3905 Poplar Street, two blocks distant. The informer was known to the officers as a reliable source and had given reliable information to police relative to possession of narcotics over a period of two or three years. The informer walked with the officers to 3905 Poplar Street and pointed out the building where defendant's apartment was located. The informer also told the police that defendant was planning to leave his apartment. One officer remained outside. Upon ringing the bell, the other two were admitted by the tenant of the first floor apartment. They ascended the stairs to the defendant's second floor apartment and, upon reaching the top, wer met by defendant who, without warning, grabbed one of the officers and threw him against the wall. At this point the officer identified himself and informed defendant that he was under arrest. Defendant hollered "They're here," and continued to scuffle with the officers. While one officer held defendant against the wall, the arresting officer heard someone running through the apartment. The officer thereupon kicked open the door in ...