No. 190 Special Transfer Docket, APPEAL FROM THE JUDGMENT OF SENTENCE OF THE COURT OF COMMON PLEAS, TRIAL DIVISION, CRIMINAL SECTION, OF PHILADELPHIA COUNTY, AS IMPOSED ON INFORATION NO. 453, JANUARY SESSION, 1977.
John F. Street, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn* Manderino, J., files concurring opinion.
[ 272 Pa. Super. Page 169]
The defendant was convicted after a jury trial, and was sentenced to life imprisonment for murder in the first degree. The defendant filed a motion to suppress a gun and a knife which were seized at his residence. The motion to suppress was granted as to the gun, but denied as to the knife. The pre-trial suppression judge determined that the knife was legally seized pursuant to the defendant's step-father's consent. After the trial by jury, post-trial motions in arrest of judgment and for a new trial were filed, argued, and denied. The defendant has appealed.
The facts of the case follow. On October 5, 1976, at approximately 11:30 p. m., the deceased, Anthony Dean, was at a pool hall with his uncle, Mr. Betts. An argument erupted between Mr. Betts and Mr. Fortune, a co-defendant. Mr. Fortune left the pool hall, only to return ten minutes later with the defendant and a third person, identified only as "Al". Mr. Fortune then called Mr. Betts out of the pool hall to continue the argument. Mr. Fortune began to beat
[ 272 Pa. Super. Page 170]
Mr. Betts as he exited from the pool hall, knocking him to the ground. As Mr. Fortune was about to kick Mr. Betts, Anthony Dean came to the aid of his uncle. As Anthony Dean pushed Mr. Fortune away from his uncle, the defendant stabbed Anthony Dean in the back, causing his death. The facts of the stabbing were presented by three eyewitnesses. Evidence was presented that, after the stabbing, the defendant had been a fugitive for two months.
The defendant has raised six issues. It is only necessary to address two of these issues because the case will be remanded to the lower court for a new trial.
The first issue is whether the suppression judge erred in denying defendant's application to suppress all the physical evidence which was found in the defendant's bedroom.
On October 6, 1976, at approximately 7:15 a. m., Detective Miller, accompanied by another detective and two uniformed police officers, went to the defendant's residence. Detective Miller testified that he had received certain information from several witnesses to the stabbing that the defendant was the alleged perpetrator of the crime. Neither Detective Miller nor the other officers possessed an arrest or search warrant at the time they went to the defendant's residence.
Detective Miller identified himself to the defendant's step-father who owned the house. Detective Miller told the step-father that the police officers were in search of the defendant for murder. The step-father directed the officers to a second floor middle bedroom. The police officers looked under the bed and ...