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decided: March 2, 1979.


No. 745 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal, Trial Division, as of Nos. 1992, 1993, 1995 and 1996, April Term, 1976.


Robert R. Redmond, Philadelphia, for appellant.

F. Emmett Fitzpatrick, District Attorney, and with him Michael R. Stiles, Assistant District Attorney, Chief, Appeals Div., Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 263 Pa. Super. Page 540]

Appellant was convicted after a non-jury trial of involuntary deviate sexual intercourse,*fn1 indecent assault,*fn2 recklessly endangering another person,*fn3 terroristic threats,*fn4 and possession of an instrument of crime generally.*fn5 This direct appeal followed the denial of post-trial motions and the imposition of sentence.

Appellant contends that a gun retrieved from his apartment was the result of an unlawful search and seizure and, therefore, should not have been admitted into evidence at trial.*fn6 The events relevant to this issue are as follows. On April 1, 1976, the complainant was climbing the stairs to her fourth floor apartment when she came upon appellant, the apartment building superintendent. The complainant requested appellant to repair the sink in her bathroom. Shortly thereafter, appellant arrived at complainant's apartment and examined the sink. As he was leaving the bathroom appellant placed his arms around the complainant, who objected and asked him to stop. When they entered the living room of complainant's apartment, appellant's advances grew more threatening. When this conduct was rejected, appellant placed a gun at the complainant's head and forced her to accompany him to his basement apartment in the same building. At gun point, appellant forced complainant to perform fellatio upon him before permitting her

[ 263 Pa. Super. Page 541]

    to leave. After the complainant returned to her apartment and composed herself, she contacted the police and reported the incident.*fn7

Approximately two hours after the complainant reported the incident and gave a statement to the police, detectives, without a warrant, went to appellant's apartment to arrest him. Although the detectives could hear loud music coming from inside appellant's apartment, no one responded to their announcements or knocks on the door. Accordingly they forced the door open and entered the apartment in search of appellant. In the course of their search for appellant, who proved not to be on the premises, the detectives observed a starter pistol lying in plain view on appellant's bed.*fn8 It is this gun which appellant contends should have been suppressed as the fruit of an unlawful search and seizure.

"It is well established that a police officer is authorized to arrest without a warrant where he has probable cause to believe that a felony has been committed and that the person to be arrested is the felon. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Commonwealth v. Bosurgi, 411 Pa. 56, 66, 190 A.2d 304, 310 (1963)." Commonwealth v. Jackson, 450 Pa. 113, 117, 299 A.2d 213, 214 (1973); Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Indeed, Rule 101(3) of the Pennsylvania Rules of Criminal Procedure specifically empowers law enforcement officials to effectuate warrantless arrests where there is probable cause to believe the suspect has committed a felony. See also ALI, A Model Code of Pre-arraignment Procedure, § 120.1 (1975). The question posed by this appeal, however, is under what circumstances may the police enter private premises to make a warrantless arrest of a suspected felon.

[ 263 Pa. Super. Page 542]

More specifically, whether in addition to probable cause, must the police also be confronted with exigent circumstances before they can enter a suspect's home to effect a warrantless arrest?

In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) and United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) the Supreme Court concluded that the Fourth Amendment does not bar the police from making a warrantless arrest in a public place provided there is probable cause. The Court, however, specifically reserved judgment on the question of whether and under what circumstances the police may enter a suspect's dwelling to effect a warrantless arrest. United States v. Watson, supra, 423 U.S. at 418, n. 6, 96 S.Ct. 820. Nevertheless, in view of the similarity between the issues, a brief review of Watson and Santana is in order.

A plurality of the Court in Watson stated that the traditional inquiry in cases involving the legality of warrantless arrests has been "not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest." Id. at 417, 96 S.Ct. at 824. The Court further observed that "[j]ust last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that 'such a requirement would constitute an intolerable handicap for legitimate law enforcement' and noted that the Court 'has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.'" Id. at 417-418, 96 S.Ct. at 825 (quoting Gerstein v. Pugh, 420 U.S. 103, 113, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Mr. Justice White, writing for the plurality, then reviewed the historical origins of the felony arrest doctrine and noted that both the common law and the majority of state statutes permit warrantless felony arrests solely on probable cause. Justice White further wrote:

"The balance struck by the common law in generally authorizing felony arrests on probable cause, but without

[ 263 Pa. Super. Page 543]

    a warrant, has survived substantially intact. It appears in almost all of the States in the form of express statutory authorization. In 1963, the American Law Institute undertook the task of formulating a model statute governing police powers and practice in criminal law enforcement and related aspects of pretrial procedure. In 1975, after years of discussion, A Model Code of Pre-arraignment Procedure was proposed. Among its provisions was § 120.1 which authorizes an officer to take a person into custody if the officer has reasonable cause to believe that the person to be arrested has committed a felony, or has committed a misdemeanor or petty misdemeanor in his presence.*fn9 The commentary to this section said: 'The Code thus adopts the traditional and almost universal standard for arrest without a warrant.'*fn10

[ 263 Pa. Super. Page 544]

United States v. Watson, supra, 423 U.S. at 421-22, 96 S.Ct. at 827. A majority of the Court in Watson then held that provided there is probable cause, a person may be arrested in public notwithstanding the failure to first obtain a warrant.

To be sure, the Court's holding in Watson was confined to warrantless public arrests and did not explicitly address the question here reviewed. Nonetheless, it would appear that the analysis and rationale employed in Watson is equally applicable to the instant case and compels the same conclusion. Indeed, Mr. Justice Marshall, who vigorously dissented in Watson, was constrained to observe:

"First the opinion all but answers the question raised in Coolidge v. New Hampshire, 403 U.S. [443], at 480-481, 91 S.Ct. [2022], at 2045 [29 L.Ed.2d 564] . . . namely, 'whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest.' Gerstein v. Pugh,. . . . Admittedly, my Brothers STEWART and POWELL do not read the opinion to resolve that issue and indeed, the Court purports to leave it open, Ante, at 418 n. 6, [96 S.Ct. 820] at 825. But the mode of analysis utilized here -- reliance on the common law and federal and state statutes -- provides a ready answer, as indeed the Court hints by its extended discussion of § 120.6 of the ALI Model Code of Pre-arraignment Procedure and its relevant commentary. Ante, at 418 n. 6, [96 S.Ct. 820] at 825. . . . Unless the approach of this opinion is to be fundamentally rejected, it will be difficult, if not impossible, to follow these sources to any but one conclusion -- that entry to effect a warrantless arrest is permissible."

United States v. Watson, supra, 453-54, 96 S.Ct. 842 (Marshall, J., dissenting).

In United States v. Santana, supra, the police had probable cause to believe that the defendant, who was standing in the doorway of her dwelling, was in possession of narcotics. When the police approached and identified themselves, the defendant fled into the vestibule of her ...

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