Charles F. Gilchrest, Routman, Moore, Goldstone & Valentino, Sharon, for appellant.
Joseph J. Nelson, Dist. Atty., R. F. Banks, Mercer, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts and Nix, JJ., concur in the result.
Appellant, Donald P. Treftz, was convicted of murder in the first degree following a jury trial and sentenced to life imprisonment. Motions in arrest of judgment and for a new trial on the ground of after-discovered evidence were denied by the trial judge sitting for the Court of Common Pleas of Mercer County. This appeal followed.*fn1
Appellant raises several questions on appeal: one, involving the trial court's denial of a motion to suppress certain evidence allegedly obtained in violation of appellant's fourth amendment rights; another, questioning the sufficiency of the evidence against appellant such as to warrant the jury verdict of guilt; and, lastly, whether or not certain post trial evidence justifies the granting of a new trial.
Appellant Treftz was president of the Masury, Ohio chapter of a motorcycle club known as the "Breed" Motorcycle Club. He had moved to Lyndon, Illinois, on June 1, 1973, and was arrested there on November 12 of that year on charges stemming from the murder of one Mark Allen Chancellor on October 13, 1973. At the time police officers executed a defective*fn2 search warrant covering a certain portion of a ninety acre parcel of land, owned by a Mr. James Gilkey and located in Mercer County, Pennsylvania, the appellant Treftz was in the State of Illinois as well.
The search pursuant to said warrant resulted in the discovery of Chancellor's body buried in a shallow grave
yards from the backyard of a small farm house in which James Gilkey's nephew John and the latter's family had lived since 1960. John Gilkey was also a member of the Breed's Ohio chapter and the evidence adduced at trial showed that the farm house was occasionally used as a meeting ground for club members.
The trial testimony further revealed that Chancellor and another individual were brought to the Gilkey residence on the day of October 13 to meet with the Ohio chapter members for the supposed purpose of joining the club. Instead, club "prospect" Chancellor was beaten and later shot to death.
Appellant Treftz sought unsuccessfully at his pre-trial evidentiary hearing to have the body of Mark Chancellor suppressed from trial on the grounds that the body was discovered during an illegal search of the wooded area directly behind the Gilkey residence in violation of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania State Constitution.
A brief description of the searched premises and a relation of the appellant's interest in those premises is necessary in order to fully determine whether or not there was a reasonable expectation of privacy on the part of the appellant such as to confer standing upon him to attack the constitutionality of the search.
James Gilkey is the owner of the ninety acre tract of land on which the house occupied by his nephew John is located. John Gilkey and his family have lived there under an informal understanding between the uncle and nephew established over the years, that in return for the upkeep of the house, the John Gilkey family would be permitted to live in the house rent-free, having unrestricted access to the surrounding land. The house itself is apparently quite small, fronting a main rural route.
Immediately behind the house is a cleared area (an outhouse and a garage are located to the side of the house). At the furthest end of this cleared yard is a garbage pile. A fence separates this portion of the "dwelling" from the wooded area overgrown with foliage where state police officers uncovered the body of Chancellor on October 26, 1973. At one time this wooded area was used as a pasture, but such use ended approximately twenty-five years ago. The elder Mr. Gilkey testified that the area has since been freely open to hunters, although he further testified that he had not seen hunters upon the premises during the past two years.
Six Pennsylvania State Police Officers arrived at the farm house at 9:30 a.m. on October 26 prepared to execute a search warrant covering that address.*fn3 No one was on the premises at the time, nor were the officers able to reach the elder Gilkey. The officers proceeded to the rear portion of the home and then began to fan out beyond the fenced area, looking for possible grave sites. At approximately 10:30 a. m., the body of the deceased victim was discovered in a shallow grave located 148 yards from the dwelling area. Testimony at the pre-trial suppression hearing disclosed that while the grave was entirely covered by dirt, the head of the deceased was buried fifteen inches underground, his buttocks under ten inches of dirt, and his feet under only four inches of dirt.
The entry of the officers and the digging on the land were not incident to a lawful arrest of the ...