Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Arthur R. Makadon, Steven H. Goldblatt, Albert L. Becker, Asst. Dist. Attys., E. Rendell, Philadelphia, for appellant.
Bruce W. Miller, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
Appellee, Fred Gullett, was arrested and indicted on the charges of murder, sodomy and rape upon the person of his next door neighbor, Mrs. Elizabeth Sciorilli. A hearing was held upon a petition for suppression filed on appellee's behalf and an order was entered suppressing physical evidence obtained pursuant to two search warrants and all statements, oral and written, made by the appellee to police authorities. The Commonwealth now appeals from a portion of this order.*fn1
It is settled law within this jurisdiction that the Commonwealth may appeal from an adverse ruling below where it appears either that the order of suppression will necessitate the termination and conclusion of the prosecution or that the adverse order will substantially impair the prosecution in the presentation of its case. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). See also, Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 (1968); Commonwealth v. Fisher, 422 Pa. 134, 221 A.2d 115 (1966); Commonwealth v. Warfield, 418 Pa. 301, 211 A.2d 452 (1965); American Bar Association Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals § 1.4(a)(iii) (Approved Draft, 1970).
In this appeal the Commonwealth does not challenge the order suppressing appellee's in custody admissions but rather confines their objections to the order of the court below suppressing the physical evidence seized during the search. Both sides are in agreement that the sole issue presented is whether there was probable cause to justify the issuance of the search warrants.
It is admitted that a portion of the information contained within the affidavits is within the purview of that part of the suppression order which is not contested. The inclusion of evidence subsequently determined to be inadmissible will not invalidate a search warrant if the warrant is also based upon other competent sources and is sufficient to constitute probable cause. In Commonwealth v. Thomas, 444 Pa. 436, 447, 282 A.2d 693, 699-700 (1971) we stated:
"'[T]he law is quite clear that the inclusion of illegally obtained evidence does not vitiate a search warrant
which is otherwise validly issued upon probable cause reflected in the affidavit and based on proper sources. Clay v. United States, 246 F.2d 298 (5th Cir. 1957), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed. 269; Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1963)': United States v. Sterling, 369 F.2d 799, 802 (3d Cir. 1966). Accord, James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150 (1969)."
Excising from the affidavits supporting the warrants that information found to be within the ambit of that portion of the suppression order which is not contested, we are satisfied that there nevertheless exists sufficient facts independently obtained which supplies probable cause for the warrants' issuance. The affidavits establish that the police were aware of witnesses who could identify the voice of the appellee as being the anonymous caller who first advised police officials that there was a body in the premises where the deceased was discovered lying on the kitchen floor after having been strangled and sexually assaulted. The caller also stated that there would be more bodies when they (the police) arrived. Upon arriving at the scene, the police found the property to be secure and there was no sign of forceable entry. Thus, it could be concluded that the intruder was admitted by the deceased who was the only occupant of the residence present at the time in question. The police learned that the appellee, a next door neighbor, had been in the home in the past for the purpose of doing plumbing repairs. They were also advised of the deceased's reluctance to admit persons when she was home alone, giving rise to the inference that the person admitted was known to her and accustomed to being in the dwelling.
Before entering the premises by forcing open the rear shed door the police officer peered through the shed window and observed an arm of an individual lying on the kitchen floor. When the officer related this information to appellee, who had accompanied the officer to the rear
of the house,*fn2 Gullett, although he had not looked in the window stated: "Momma Momma, they didn't have to do this." It was also known that the appellee called the deceased "Momma" and that other individuals resided within the premises, including one other adult female. The police also ascertained that Gullett had previously been arrested for sex crimes including buggery and rape. The medical examiner reported that the victim had apparently been sexually molested by buggery. Finally, it had been determined from an interview with appellant's wife that he was not home at the time this incident was determined to have occurred.
"Probable cause exists where the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted." Commonwealth v. Thomas, 448 Pa. 42, 52, 292 A.2d 352, 357 (1972).
From the foregoing facts the Issuing Authority was made aware that the victim had been murdered and sodomized by buggery; that the killing had been probably perpetrated by someone known to the victim and who had been admitted with the permission of the victim; that the appellee was the first to have known of the death; that Gullett was aware of the identity of the body before he was supposed to have had an opportunity to make such an identification; that he was the unidentified caller who notified the police; that he was absent from his home at the time of the incident; that he was known to the victim and would probably have been admitted by her; and that there was reason to believe that he had previously engaged in the type of sexually errant
behavior herein involved. This information clearly supplied to the Issuing Authority the probability of culpability on the part of appellee that would justify the warrant's issuance. Commonwealth v. Marino, 435 Pa. 245, 253, 255 A.2d 911 (1972).
"In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
"'The substance of all the definitions' or probable cause 'is a reasonable ground for belief of guilt.' McCarthy v. De Armit, 99 Pa. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. at 161, 45 S.Ct. 280. And this 'means less than evidence which would justify condemnation' or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364. Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543.
"These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or ...