Andrew G. Gay, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Robert Fogelnest, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
Appellant Vernon Bess was convicted by a jury of murder of the second degree, robbery and criminal conspiracy. After post-verdict motions were denied, the court sentenced appellant to life imprisonment on the murder charge, a concurrent term of five to ten years on the robbery charge, and five to ten years on the conspiracy charge to run concurrently with the robbery sentence. Appellant argues that the murder weapon introduced at trial was seized in violation of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).*fn1 We affirm.*fn2
The police received information implicating appellant in the shooting death of a retired detective during a robbery of a bar. On March 28, 1975, at about 5:30 a. m., several police officers went to appellant's home, where appellant's brother admitted them. Officer William Trudell and a detective discovered appellant asleep in a second floor bedroom. Officer Trudell, armed with a shotgun, shined a flashlight into the room. As he began to enter, he awakened appellant and
directed him to get out of bed. When Officer Trudell was within a few feet of appellant, he saw appellant sit up and start to reach either under the bed or below the mattress. Officer Trudell immediately seized appellant, pushed him against the wall and, as the second officer came around the bed to guard appellant, reached under the mattress and withdrew a .22 caliber automatic pistol. The gun, later identified as the weapon responsible for the victim's death, was introduced at trial.
A third officer entered the room and stood guard over appellant while Officer Trudell unloaded the pistol. The officers then ordered appellant to get dressed. When appellant had put on some clothes, the officers handcuffed him and brought him to the Police Administration Building. The police did not conduct a search of appellant's room or house and did not seize any evidence other than the pistol.
Incident to a lawful arrest, police officers may conduct a warrantless search of the person arrested and the area within that person's immediate control in order to remove any weapons that might be used to facilitate escape or resist arrest, and to prevent destruction of evidence. Chimel v. California, supra; Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976).*fn3 Whether an item has been properly seized pursuant to a search incident to arrest depends upon the facts of each case. The central question is whether the area searched is one "within which [the arrested person] might gain possession of a weapon or destructible evidence." Chimel v. California, supra at 763, 89 S.Ct. at 2040.
Here, the police observed appellant reach below the bed when he spotted the officers enter the room. Officer Trudell immediately performed a search limited to that area under the mattress into which appellant had appeared to be reaching and which was within a few feet of ...