No. 497 January Term, 1973, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division Criminal Section of Philadelphia County at No. 873, November Term, 1969.
Neil Jokelson, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former Chief Justice, did not participate in the decision of this case.
This is a direct appeal from a judgment of sentence of life imprisonment entered upon a jury verdict finding appellant guilty of murder of the first degree.*fn1 The dispositive issue in this appeal is whether certain real evidence admitted at trial was obtained by an illegal search and seizure. The suppression court ruled that all of the challenged evidence was properly obtained. Since we disagree with the suppression
court's finding as to certain items of evidence, we reverse the judgment of sentence and order a new trial.*fn2
In reviewing a suppression court's findings, this Court will consider the evidence of the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.*fn3 Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978), citing Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). On the morning of October 10, 1969, a police officer responded to a call from two neighbors of the victim, Mrs. Silvia Silo, appellant's mother. Upon arrival at the scene, the officer was informed by these neighbors that at about 10:00 a. m. on October 9, 1969, the day before, they had heard an argument and screams emanating from the victim's residence. They stated further that appellant had for many years resided there with his mother. At about 2:40 p. m. on the ninth appellant came outside and sat on the porch steps. Shortly thereafter he was picked up by a rescue squad vehicle and was taken to a nearby hospital for treatment of chest pains.
The neighbors told the officer that they did not see Mrs. Silo leave for work at her usual time, between 3:00 p. m. and 3:30 p. m., on the ninth and further that an upstairs window which Mrs. Silo usually closed was left open overnight. They also said that they had telephoned the hospital and Mrs. Silo's place of employment and learned that she had not been seen at either place.
Given this information, the police officer, on the tenth, called the hospital where appellant was being treated and arranged with the hospital to pick up appellant's house key. The officer then drove to the hospital, obtained the key from a nurse, and returned to the Silo residence. The officer then radioed for assistance from another officer. When the second officer arrived, the officers unlocked the front door
to the Silo house and entered. Once inside they discovered Mrs. Silo's dead body in the kitchen; subsequent medical examination revealed that ...