Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at No. 129 June Term, 1975. NO. 573 OCTOBER TERM, 1976.
Judith Widman and John W. Packel, Assistant Public Defenders, Philadelphia, for appellant.
Charles J. Devlin, Jr., and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, Price and Spaeth, JJ., concur in the result of this opinion.
[ 246 Pa. Super. Page 157]
Appeal is taken to our Court from judgment of sentence rendered following jury trial and conviction on an indictment for rape.*fn1 Also charged and tried were indictments for possession of instruments of crime ("ACT", supra, § 907)*fn2 and unlawful restraint ("ACT", supra, § 2902). Sentence was suspended on the former and the latter was nolle prossed. Post-trial motions were filed and denied.
On May 8, 1975, while Stephanie Rowe was walking on 16th Street between Market and Chestnut in Philadelphia, she was approached by appellant, who inquired whether she might be a model. Answered in the affirmative, appellant informed Miss Rowe that he was a photographer with a studio at 17th Street and Locust and queried whether she cared to go there to peruse literature or pamphlets regarding his work. The prosecutrix was given to understand that a job offer might be forthcoming. Following a drink or two at the Warwick Hotel, the two went to appellant's studio, located at the end of a long hall three flights up from the street in a building otherwise vacated at this late evening hour. Miss Rowe was shown the literature and posed for Boykin, but soon became apprehensive because of appellant's request for poses in various modes of dress and undress. She left the studio area of appellant's premises and went into the outer office, finding the exit door locked. Appellant appeared with a knife poised and directed Rowe back to the studio area. Thereupon appellant compelled the young lady to remove her clothes, lie upon a couch, and engage in an act of sexual intercourse, which act he repeated once.
Prosecutrix then persuaded Boykin into letting her go into the common hall past the formerly-locked office
[ 246 Pa. Super. Page 158]
door, to a bathroom. When she emerged, she ran ahead of Boykin, re-entered the office, shut and locked the door before he could re-enter. Thereupon she dressed and called the police. An arrangement was made whereby Rowe threw a pair of underpants to Boykin, who had removed himself some distance from the door, and then they descended the stairs, Rowe following and "armed" with scissors and a steam-iron. Boykin was able to open the street door to admit the police.
Police investigation was made, during which one of the officers found the knife, with which appellant had allegedly coerced prosecutrix, on a fire escape outside one of the windows of appellant's premises. The officer had gained access to the fire escape through the fire door, so marked, which opened off of the hallway common to the leased premises. The knife was seized.
Prior to commencement of trial, a hearing was held on appellant's motion to suppress the knife as evidence, which argument was based on the allegation that it was the product of a warrantless and illegal search. That this motion was denied by the court below is the first allegation of error before us. It is unnecessary to reiterate the legion of cases regarding lack of warrant and consent to search. This issue is controlled by the "plain view" doctrine, expounded by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It is quite clear in the instant case that the officers were present in answer to an emergency call placed by the victim. The knife on the fire escape was found in plain view during the routine investigation. Nor may appellant claim Fourth Amendment protection for himself in respect to an area in which he has no possessory interest. Commonwealth v. Strickland, 457 Pa. 631, 326 A.2d 379 (1974). The fire escape entrance used by the police was a door from the common hallway. While a tenant may have the right to use both hall and fire escape, neither is a
[ 246 Pa. Super. Page 159]
part of the demised premises under his possession or control. The fallacy of appellant's argument is made more plain were we to suppose that the knife had fallen through the fire escape's grating, which supposition is not unreasonable because of appellant's admission at trial that he had disposed of the knife by tossing it out the window. The knife on the ground outside the building would not be in an area protected by one's basic Constitutional right to be free from unreasonable searches and seizures. We hold that the lower court did not err in denying the motion to suppress.
Appellant's second allegation of error stems from the cross-examination of Officer James Slavin, one of the policemen who responded to Miss Rowe's call and the officer who took custody of the aforementioned knife and subsequently turned it over to the evidence custodian. When defense counsel asked "Was the knife ever turned over to the laboratory technicians? That is, down at the Police Administration Building for some type of analysis as to whether or not there was any blood or chemicals or traces on it?", Commonwealth objection was sustained on the grounds that the question went beyond the bounds of direct examination and was irrelevant. We believe that the lower court judge properly limited the examination of Slavin because there was no testimony that the instrument had been bloodied or that an analysis was in any way material. This particular knife had been introduced only as the weapon the threatened use of which weapon coerced or forced the prosecutrix to submit to appellant's desires, which had been identified as such by prosecutrix, and which also had been ...