No. 2785, October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Lancaster County, No. 399 of 1977.
Thomas G. Klingensmith, Public Defender, Lancaster, for appellant.
Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Hester, Hoffman and Catania,*fn* JJ. Hester, J., files a dissenting statement.
[ 274 Pa. Super. Page 492]
Appellant contends that: (1) the evidence is insufficient to prove receiving stolen property, and (2) the warrantless search of his home was unlawful because the police used deception to gain entrance. We agree that the search of appellant's home was unlawful and, accordingly, reverse judgment of sentence and remand for a new trial.*fn1
Twice in April, 1976, a home owned by Alsena Kirschner was burgled. Kirschner suffered loss of many pieces of living room and dining room furniture, appliances, lamps, clothing, bedding, glassware and dishes. On January 1, 1977, Trooper Joseph Westcott of the Pennsylvania State Police visited appellant's home to speak with Donna Riehl Poteete, with whom appellant lived. Westcott was investigating a retail theft in which he believed Donna Riehl
[ 274 Pa. Super. Page 493]
Poteete may have been involved. While in the apartment, Westcott noticed the furniture. Later, when reviewing the report of the burglaries of Kirschner's home, Westcott recalled that some of the furniture in appellant's home resembled items taken from Kirschner. Westcott then began to investigate whether appellant was involved in those burglaries. He directed inquiries to other officers and examined reports of other burglaries to determine if the furniture in appellant's apartment could have been stolen from other homeowners. Westcott obtained from Kirschner detailed descriptions of her stolen property. Subsequently, he focused his investigation on the burglaries of her home. On February 4, 1977, Westcott went to the apartment complex in which appellant lived and confirmed that appellant and Donna Riehl Poteete were the tenants of the apartment in which he had seen the furniture.
On February 7, 1977, Westcott returned to the Poteetes' residence, armed with Kirschner's description of the stolen furniture, with which he planned to compare the furniture in appellant's apartment. Westcott met appellant at the door and told him that he wished to discuss a theft of appellant's car that had occurred some time before. Appellant permitted Westcott to enter, and Westcott asked a few questions about the car theft. Westcott then observed the furniture, noting that the items fit Kirschner's description. Concluding that the furniture was Kirschner's, Westcott informed appellant that he was a suspect in the burglaries, warned him of his Miranda rights and requested permission to examine the furniture more closely. When appellant refused permission, Westcott left, obtained a search warrant and returned about two hours later to execute it. Appellant was not home. Westcott and other officers entered with a passkey supplied by the apartment manager, examined the furniture and called Kirschner. They told her that they had located her furniture and instructed her to come to appellant's apartment to take the furniture and other items stolen from her. Kirschner arrived and began removing all the items, carrying them off in a truck. The police took photographs
[ 274 Pa. Super. Page 494]
of all the property removed, which included most but not all of the items stolen during the two burglaries of April, 1976. Police later learned that in July, 1976, appellant had sold an expensive dining room china closet stolen from Kirschner, for which he received $40.00, and that, in September, 1976, he had sold a buffet also stolen from Kirschner. At trial, the Commonwealth did not introduce the stolen property into evidence, but did enter the photographs taken the day of the search. From these photographs, Kirschner identified at trial the property stolen from her and discovered in appellant's apartment.
On July 13, 1977, a jury convicted appellant and Donna Riehl Poteete of receiving stolen property. After denying post-verdict motions, the trial court sentenced appellant to a term of imprisonment of 5 to 12 months ...