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COMMONWEALTH v. NEWMAN (06/16/67)

decided: June 16, 1967.

COMMONWEALTH
v.
NEWMAN, APPELLANT



Appeal from judgment of Court of Quarter Sessions of the Peace of Delaware County, Dec. T., 1964, Nos. 101 and 102, in case of Commonwealth of Pennsylvania v. Henderson Newman.

COUNSEL

Arthur Levy, with him McClenachan, Blumberg & Levy, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, Paul R. Sand, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Ervin, P. J. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissent.

Author: Ervin

[ 210 Pa. Super. Page 36]

The appellant, Henderson Newman, was convicted on a lottery charge and has appealed from his sentence on that conviction. He argues that the search and seizure of gambling paraphernalia from his home violated his constitutional privilege against unreasonable search and seizure guaranteed by the Fourth Amendment to the Federal Constitution.

This subject has been before the courts many times and the most recent utterance on the subject is that expressed by Mr. Justice Cohen for the majority in the case of Com. v. Ametrane, 422 Pa. 83, 221 A.2d 296, wherein he stated, at pages 86 and 87, the following: "In Ker v. California, 374 U.S. 23 (1963), the Court held that the reasonableness of a state search was to be determined ultimately by the application of federal constitutional standards as expressed in the Fourth Amendment and the decisions of the Court applying that amendment. Yet, even in Ker, the Court recognized the right of the State to develop rules governing

[ 210 Pa. Super. Page 37]

    arrests and searches and seizures. Preserving this right in the state, Mr. Justice Clark stated: 'We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the "fundamental criteria" laid down by the Fourth Amendment and in opinions of this Court applying that Amendment. Findings of reasonableness, of course, are respected only insofar as consistent with federal constitutional guarantees. . . . The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet "the practical demands of effective criminal investigation and law enforcement" in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain. . . . Such a standard implies no derogation of uniformity in applying federal constitutional guarantees but is only a recognition that conditions and circumstances vary just as do investigative and enforcement techniques.' 374 U.S. at 33-34.

"Such a recognition is especially pertinent to effective law enforcement against narcotics and gambling violations, where the possibility that evidence may be destroyed is particularly acute. Indeed, it is this very possibility which should allow state law enforcement officers to adopt techniques to suit the concrete situation. Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U. Pa. L. Rev. 499, 557 (1964)."

We must, therefore, now consider the evidence in this case to determine whether what the officers did, under all the surrounding circumstances, was unreasonable.

Three detectives of the vice squad of the district attorney's office testified. The record reveals that they

[ 210 Pa. Super. Page 38]

    had been members of the vice squad for a considerable period of time and that after obtaining a search warrant for the property, a body warrant for the defendant and a search warrant for his person from a magistrate, they proceeded to the defendant's home, a small two-story dwelling located in the City of Chester, Pennsylvania. Detective John MacCrory testified: "When we arrived at 721 West Mary I banged on the door and announced that we were the police. Q. What voice did you use, do you recall? A. It was loud enough for somebody inside to hear. I know it was that loud. Q. And then did you wait for the door to be opened? A. Yes, sir. Q. And was it opened? A. No. Q. Then what did you do? A. With that I ordered Detective Lee, who was carrying a sledge, to hit the lock. Q. And how long did it take Detective Lee to open the door? A. Not very long. We were in in nothing flat." He testified that when the officers got in and when he opened the door to the dining room, he noticed a man coming down the steps from upstairs, that man being the defendant, Henderson Newman. He asked him if he was Mr. Newman and upon receiving an affirmative reply, told him that he had search warrants for his person and also for the house and that he was charged with lottery. The defendant then said: "Go ahead and search."

Detective James C. Stewart testified that he had made surveillance of the property on November 4 and November 7, 1964 and described the people that he saw going into the house on those occasions. He also testified that on the day of the raid, when he got out of the car in front of the defendant's house he looked up to the second floor window and saw a man walking past the windows. He also testified that he then walked to the front door and that Detectives Lee and MacCrory were there "hollering Police, and knocking on the door with their hands."

[ 210 Pa. Super. Page 39]

Detective Joseph Lee testified as to his surveillance of the premises on November 5 between 10 a.m. and 1 p.m., and on November 12 and described the people he saw entering and leaving the house on those days. As to the day of the raid, he testified in direct examination as follows: "Well, we got out of the car, I was in company with Detective MacCrory. We knocked on the door. A few minutes after he announced Police I announced it, we got no response, so I hit the door once with a sledgehammer and it flew open." On cross-examination he testified as follows: "Q. Now you stated that you and the other detectives approached the house, and I believe you said that one of the other officers knocked, announced Police, and then after a few minutes you announced Police and there was no answer and the door was broken into. You say after a few minutes you announced Police. Do you literally mean after a few minutes, Mr. Lee? A. No, it was a few seconds. I would say maybe within 20 seconds or so after the first announcement."

The jury having found a verdict against the defendant, the evidence and the inferences therefrom must be considered most strongly in favor of the Commonwealth: Com. ...


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