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COMMONWEALTH PENNSYLVANIA v. JAMES MILLARD (12/21/79)

filed: December 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES MILLARD, APPELLANT



No. 1375 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lehigh County, No. 1410 and 1411 of 1976.

COUNSEL

John P. Karoly, Jr., Assistant Public Defender, Allentown, for appellant.

William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.

Van der Voort, Montgomery and Lipez, JJ.

Author: Lipez

[ 273 Pa. Super. Page 527]

Appellant was convicted, after a jury trial, of burglary,*fn1 rape,*fn2 recklessly endangering another person,*fn3 felonious restraint,*fn4 terroristic threats,*fn5 and involuntary deviate sexual intercourse.*fn6 Appellant's post-verdict motions were dismissed, and he brings this appeal, claiming that 1) his motion to suppress was improperly denied; 2) his Rule 1100 rights were violated; 3) inflammatory evidence was admitted at trial; 4) his motion for mistrial, made when a Commonwealth witness allegedly testified concerning appellant's exercise of his right to remain silent, was improperly denied; 5) the trial court's jury charge concerning appellant's alibi was incorrect; and 6) the trial court should not have permitted an in-court identification of appellant based on an allegedly improper prior confrontation. None of appellant's assignments of error is meritorious, and we therefore affirm.

The events with which the case is concerned began when appellant gained entry to the victim's apartment through a window. He forced the victim into a bedroom, raped her and forced her to submit to deviate sexual intercourse, and then tied her to a bed, using, as the victim testified, nylon rope from a floor exerciser, hemp rope from a purse handle, electrical cord, telephone cord, two pieces of clothing cut into strips and wire. Appellant threatened to kill her if she called the police. The victim freed herself some twelve hours later and called police.

[ 273 Pa. Super. Page 528]

I.

Local police then searched appellant's apartment pursuant to a warrant which described the items to be seized as follows:

One key chain containing black fob with BMW and initial ring with JAW on it. Several keys are on the key chain. Assorted frozen meats.

According to the Receipt/Inventory of Seized Property, the items actually taken were:

1 1 1/2" Lag bolt 3/8 square head rusty taken from a tan windbreaker type jacket 1 S.K. stainless open end box end wrench 3/8 size[.]

Appellant contends that the seizure of these items was illegal because the bolt and wrench were not "particularly described" in the warrant, as is required by the Fourth Amendment to the United States Constitution.

Appellant's reliance on Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), is unfounded. That case not only "created an inconsistency in the law of search and seizure for which the court offered no explanation,"*fn7 but also was finally rendered obsolete by Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Coolidge "emphasized that under the so-called 'plain view' doctrine it would sometimes be permissible for police to seize items found while executing a search warrant naming other objects[.]" W. LaFave, 2 Search and Seizure 165 (1978); see 403 U.S. at 465-68, 91 S.Ct. at 2037-39. The police must come upon the evidence inadvertently, in a place where they have a legal right to be at the time of discovery, and it ...


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