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COMMONWEALTH v. KONTOS (04/22/71)

decided: April 22, 1971.

COMMONWEALTH
v.
KONTOS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1966, No. 15, in case of Commonwealth of Pennsylvania v. Nick Kontos.

COUNSEL

Louis J. Grippo, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the decision of this case.

Author: Jones

[ 442 Pa. Page 344]

Nick Kontos, the appellant, along with Gus Kontos, Mary Dixon and Jean Davis, was indicted for murder

[ 442 Pa. Page 345]

    and voluntary manslaughter in connection with the slaying of Hazel Deere. Appellant was subsequently convicted of murder in the first degree. On appeal to this Court, we reversed the judgment of sentence and granted a new trial due to an error that need not presently concern us.*fn1 Com. v. Dixon, 432 Pa. 423, 248 A.2d 231 (1968). On retrial the jury again found appellant guilty of murder in the first degree and he was sentenced to life imprisonment. Owing to alleged errors committed during the second trial, this appeal followed.

Appellant would have this Court set aside the conviction and grant a new trial for alternative reasons: (1) the introduction of certain evidence allegedly obtained by an unconstitutional search and seizure; (2) the receipt into evidence of hearsay statements attributable to appellant's co-defendants and implicating appellant; and (3) the court's failure to allow defense inspection of extra-judicial statements made by the Commonwealth's witnesses.

[ 442 Pa. Page 346]

In regard to the search and seizure issue, the question is whether physical evidence which was found in a heating duct in the basement of the apartment building in which appellant was a tenant should have been suppressed. Though there was no valid warrant for the search, there is no dispute that the custodian of the building freely consented to the police search. However, appellant argues this consent is irrelevant, citing Stoner v. California, 376 U.S. 483 (1964), and Chapman Page 346} v. United States, 365 U.S. 610 (1961). Read together, these cases hold that neither Stoner's hotel clerk nor Chapman's landlord may constitutionally consent to a search of leased premises when a guest or tenant exercises complete custody and control over the area in question. See, also, Com. v. Storck, 442 Pa. 197, 275 A.2d 362 (1971); Com. v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966).

While appellant's lease provided for his use of the basement, this right was shared by the other tenants as well as the custodian. We deem this additional element of joint use, not present in either Stoner or Chapman, to be dispositive of the issue.*fn2 Although this appeal may appear, at first glance, to be factually analogous to Stoner and Chapman, it is constitutionally akin to Frazier v. Cupp, 394 U.S. 731 (1969). In Frazier, the accused owned and used a duffel bag but permitted his cousin to also use it. Upon questioning by the police, the cousin consented to a search of the duffel bag which resulted in the seizure of certain articles of clothing belonging to the accused. Confronted with the argument that this clothing should not have been introduced into evidence, the United States Supreme Court noted: "Since [the cousin] was a joint user of the bag, he clearly had ...


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