No. 2164 October Term, 1979
John L. Lachall, West Chester, for appellant.
Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Hester, Cavanaugh and Van der Voort, JJ.
[ 295 Pa. Super. Page 470]
This is an appeal from judgments of sentence imposed after a Chester County jury convicted appellant, Matthew Freeman, of rape, involuntary deviate sexual intercourse, burglary and terroristic threats. On August 17, 1978, Georgette Eachus was allegedly raped and orally sodomized at knifepoint by a male she claimed to have met the previous day. Appellant, found that date in possession of a stolen vehicle,*fn1 was charged with the instant crimes on August 18, 1978. After the denial of appellant's suppression motions, a jury trial ensued at which appellant, testifying in his own defense, argued that his encounter with Ms. Eachus was consensual. Following his conviction, appellant raised, and the trial court rejected, myriad post-verdict claims, seven of which are also raised in this appeal. We consider them seriatim and affirm.
Appellant first challenges the suppression court's conclusion that he lacked standing to object to the search of the
[ 295 Pa. Super. Page 471]
stolen car in which he was found.*fn2 Two searches occurred here: the first was a warrantless search on August 17, 1978, during which police discovered, but did not seize, a knife; that knife was seized during a second search, conducted with a warrant, on August 18, 1978. In this appeal, appellant objects to the court's ruling only as to the first search. Essentially, appellant argues that the decision of United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) grants him standing to object to the search of the car in his possession on August 17, notwithstanding the fact that his possession of that car was unlawful. He thus urges us to overturn the lower court's allegedly erroneous standing ruling and remand this case for purposes of determining the legality of the warrantless search.
Although not dispositive of the particular standing issue presented by this appeal, we find appellant's reliance on Jones to be inapposite. The Jones court conferred "automatic standing" on defendants charged with possessory offenses and, alternatively, permitted anyone "legitimately on premises" to challenge the legality of a search therein. The viability of Jones, however, was at best questionable at the time of appellant's suppression hearing. The "automatic standing" doctrine of Jones was eroded, although not explicitly repudiated, in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and any residual significance of that rule was extinguished in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Moreover, in Rakas v. Illinois, 439 U.S. 128, 142, 99 S.Ct. 421, 429, 58 L.Ed.2d 387, 400 (1978), rehearing denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979), the Court rejected the second prong of Jones when it found that "the phrase 'legitimately on premises' . . . creates too broad a gauge for measurement of Fourth Amendment rights." It is now settled that entitlement to the exclusionary rule will be available only to defendants able to demonstrate that their
[ 295 Pa. Super. Page 472]
legitimate expectation of privacy was invaded by the allegedly illegal search and seizure. See Commonwealth v. Sell, 288 Pa. Super. 371, 432 A.2d 206 (1981) (adopting the Salvucci-Rakas test; defendant had no expectation of privacy when he placed firearms on a shelf commonly used by fellow employees as a storage area).
We find it difficult, if not impossible, to imagine a situation where one whose presence in an automobile is unlawful can have a legitimate expectation of privacy so as to entitle him to Fourth Amendment protection when that automobile is the object of a search. Although expressly not deciding whether appellant had standing to challenge the admissibility of physical evidence seized from a stolen truck, Judge Popovich, writing for the majority in Commonwealth v. Prengle, 293 Pa. Super. 64 n.3, 437 A.2d 992 at 994 n.3 (1981) noted ". . . because appellant's presence ...