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COMMONWEALTH PENNSYLVANIA v. EDWARD MARTIN (12/28/77)

decided: December 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD MARTIN, APPELLANT



No. 778 April Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cambria County at No. C-112 September Term, 1974.

COUNSEL

Michael L. Stibich, Public Defender, Johnstown, for appellant.

John J. Kuzmiak, Assistant District Attorney, Johnstown, and D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Spaeth, J., files a concurring opinion.

Author: Van Der Voort

[ 252 Pa. Super. Page 267]

The appellant, Edward Martin files this direct appeal following jury trial, conviction, denial of post-trial motions, and sentencing on receiving stolen property charges. He raises several allegations of error.

The appellant's initial contention is that the lower court erred in denying his motion to suppress certain evidence seized from his residence and admitted against him at trial. The record shows that on June 19, 1974, a search of the appellant's automobile disclosed a $1,000.00 United States Savings Bond which had been among the items missing after a burglary which had occurred at a local law firm two days earlier. Based upon this discovery, officers obtained a search warrant the same day to search appellant's residence for other items taken during the same law firm burglary. While searching the appellant's bedroom, an officer discovered in a dresser drawer, an envelope bearing eight, fifty dollar ($50.00) United States Savings Bonds as well as a drivers license, all in the name of one Patrick O'Donnell. The officer believed the items to be stolen and called a neighboring police department to ask if there had been any report of items taken from O'Donnell. It was confirmed by that department that the bonds and license had recently been stolen from O'Donnell.*fn1

The appellant maintains that the bonds and license should have been suppressed as evidence, since he claims the Commonwealth had no right to seize them. We must disagree.

[ 252 Pa. Super. Page 268]

In Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069 (1968), the United States Supreme Court stated: "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." The so called "plain view" doctrine was further amplified in Coolidge v. New Hampshire, 403 U.S. 443, 466-8, 91 S.Ct. 2022, 2033-39, 29 L.Ed.2d 564, 583-4 (1971), where it was stated: "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 the police themselves -- to require them to ignore it until they have obtained a warrant particularly describing it."*fn2 [Emphasis added]. The plain view doctrine has been a factor in other cases before our Court. See Commonwealth v. Nastari, 232 Pa. Super. 405, 335 A.2d 468 (1975); Commonwealth v. Clelland, 227 Pa. Super. 384, 323 A.2d 60 (1974); Commonwealth v. Brayboy, 209 Pa. Super. 10, 223 A.2d 878 (1966).

In the instant case, the officer clearly had the right to be in the position to discover the bonds which were the object of appellant's suppression efforts. The officer had a valid warrant to search the appellant's residence for bonds from another theft which it was reasonably believed might be at that location. The law does not require an officer to ignore contraband in these circumstances nor does it require him to leave the premises and obtain a second warrant prior to undertaking a seizure. We must therefore reject the suppression contentions raised by appellant.

[ 252 Pa. Super. Page 269]

The appellant next raises several claims of error with respect to the trial court's charge to the jury. ...


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