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decided: July 2, 1973.


Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Feb. T., 1970, No. 267, in case of Commonwealth of Pennsylvania v. Herman Miller Davenport.


J. Peirce Anderson, with him Bean, DeAngelis, Kaufman & Kane, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts, Mr. Justice Nix, and Mr. Justice Manderino concur in the result. Mr. Chief Justice Jones dissents.

Author: Pomeroy

[ 453 Pa. Page 237]

Appellant, Herman Miller Davenport, was convicted by a jury of murder in the first degree for the killing of Milton Hawkins on January 14, 1970. Sentence of life imprisonment was imposed, and appellant brought the instant appeal. For reasons which follow, we reverse and remand for a new trial.

[ 453 Pa. Page 238]

    recognized the potential prejudice if a witness called by the prosecution and logically associated with the defendant is allowed to invoke the Fifth Amendment in the presence of the jury.*fn3 In two recent cases similar to the one at bar we have had occasion to indicate why such a practice is to be condemned. Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973); Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973). The calling of the witness whom the district attorney had reason to know would refuse to testify "presented the jury with an irrelevant event (invocation of the privilege) from which the jury could make fallacious deductions prejudicial to the defendant and not subject to cross-examination." DuVal, supra at 214.

The Commonwealth alleges that no error was committed in this case because when Bartlett was called to the stand, the prosecution believed in good faith that his right to invoke the Fifth Amendment had been lost by his earlier trial and conviction.*fn4 As we said in DuVal,

[ 453 Pa. Page 240]

    however, a case where the Commonwealth asserted that by testifying on prior occasions the witnesses had waived their Fifth Amendment rights, the validity vel non of the claim of privilege is immaterial. It is a question which can and should be settled outside the presence of the jury. It is also clear, as in DuVal, that the district attorney had actual notice of Bartlett's intention to take the Fifth Amendment; we therefore need not explore what steps, if any, the Commonwealth should be required to take in advance in order to ascertain the willingness of a witness to testify.


The proceedings below were infirm for a second reason. On January 20, 1970, at the instigation of the police, the Montgomery County Coroner extracted a blood sample from appellant to type and compare with that of the deceased. This action was taken without prior judicial authorization and while appellant was confined in the local jail. We conclude that appellant's rights under the Fourth Amendment were violated and that his timely motion to suppress should have been granted. A new trial must therefore be ordered on this ground also.

[ 453 Pa. Page 241]

That the taking of blood is a search and seizure subject to the protections of the Fourth Amendment was firmly established in Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908 (1966). See also Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970). Cf. United Page 241} States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67 (1973); United States v. Mara, 410 U.S. 19, 35 L. Ed. 2d 99 (1973). In Schmerber, a delay in testing for alcoholic content threatened "destruction of the evidence"; consequently, exigent circumstances permitted a warrantless intrusion. The Supreme Court has recently given its imprimatur to warrantless scraping under a suspect's fingernails "to preserve the highly evanescent evidence" thought to be there. Cupp v. Murphy, 412 U.S. 291, 296, 93 S. Ct. 2000, 2004 (1973). No such dangers, however, excused the warrant requirement here. Whereas the percentage of alcoholic content in the bloodstream begins to diminish shortly after drinking stops and a person can easily scrub his hands to destroy incriminating evidence, the blood type of an individual never changes. Similar characteristics of fingerprints prompted the Supreme Court of the United States in Davis v. Mississippi, 394 U.S. 721, 728, 22 L. Ed. 2d 676, 681 (1969), to hold that "the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context."

To circumvent the warrant requirement, the Commonwealth argues that appellant consented to the procedure that was employed. The suppression testimony of the Coroner fails to bear out this position: "Q. Now what happened when Herman Davenport came into the room? A. I said we wanted to take a blood test of him. Q. Did he say anything? A. He did not. Q. What did he do, if anything? A. He sat there until we got the syringes and tubes ready, and the corpsman, or whoever the man is that works in the dispensary, asked him to put out his arm and took the blood sample. Q. Did he put out his arm? A. Yes. Q. Did he say anything during this period of time, do you recall? A. Not that I recall." In Bumper v. North Carolina, 391 U.S. 543, 548-9, 20 L. Ed. 2d 797, 802 (1968), the Supreme

[ 453 Pa. Page 242]

Court of the United States held that "[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." We recognize that in Bumper the police misrepresented to the defendant's mother that they had a valid warrant to search her home and that no such tactic of deception was employed by the police here. The distinction, however, is irrelevant. It is obvious that appellant's holding out his arm, without being told either the authority for the doctor's actions or the purpose for which the blood sample was being taken, constituted mere acquiescence, and not a knowing and intelligent waiver of defendant's Fourth Amendment rights. Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466 (1938).*fn5

Since a new trial will be required, we turn to a consideration of one other issue which will necessarily be involved in future proceedings.*fn6

[ 453 Pa. Page 2431069]

(1968), the Supreme Court of the United States said: "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." (Citations omitted; emphasis added.) This rule has been recognized by our Superior Court in Commonwealth v. Watkins, 217 Pa. Superior Ct. 332, 272 A.2d 212 (1970). The Supreme Court later amplified the "plain view" doctrine as follows: "The doctrine serves to supplement the prior justification -- whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused -- and permits the warrantless seizure. . . . Where . . . the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous -- to the evidence or to the police themselves -- to require them to ignore it until they have obtained a warrant particularly describing it." Coolidge v. New Hampshire, 403 U.S. 443, 466-8, 29 L. Ed. 2d 564, 583-4 (1971).*fn9

It is, of course, well settled that the police are justified in searching, incident to a valid arrest, "the arrestee's person and the area 'within his immediate control' -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible

[ 453 Pa. Page 245]

    evidence." Chimel v. California, 395 U.S. 752, 763, 23 L. Ed. 2d 685, 694 (1969). Whether or not appellant's return to his room at his own request to finish dressing extended the permissible scope of a search incident to a lawful arrest to that area, there can be no doubt that the police justifiably accompanied him inside his room to insure against flight or the procurement of a weapon. As the blood-stained items were in plain view and logically related to the investigation of Hawkins' murder, we uphold their warrantless seizure.*fn10

Judgment of sentence reversed; case remanded for a new trial.


Judgment of sentence reversed and case remanded for new trial.

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