No. 350 January Term, 1979, Appeal from the judgment of the Superior Court (October Term, 1977, No. 297) Affirming the judgment of sentence at May Term, 1976, Nos. 2177, 2178, 2180 of Philadelphia County, Court of Common Pleas, Criminal Trial Division.
John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Attys., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., filed a concurring opinion in which Flaherty, J., joined. O'Brien, C. J., filed a dissenting opinion.
This case presents several issues: (1) whether appellant's Fourth Amendment rights were violated when police (armed with an arrest warrant) entered a third-party's apartment, arrested appellant, and seized his revolver; (2) whether appellant's Fourth Amendment rights were violated when the police failed to announce their purpose prior to breaking into the apartment; (3) whether appellant violated 18 Pa.C.S.A. § 907(a) (possessing instruments of crime) by openly carrying a loaded revolver; (4) whether, despite appellant's offer to stipulate that he committed a "crime of
violence," appellant's prior murder conviction was admissible to prove that he violated 18 Pa.C.S.A. § 6105, which prohibits individuals convicted of a "crime of violence" from possessing firearms; and (5) whether appellant could assert intolerable prison conditions as a defense to the crime of escape.*fn1
On October 1, 1975, while incarcerated following a murder conviction*fn2 for the shooting death of one Timothy Shinn, appellant escaped from the Philadelphia General Hospital Detention Unit. When police discovered appellant was gone, they broadcast an hourly "wanted" message over the police radio, informed the State Crime Information Center, and widely disseminated appellant's "mug shot". An arrest warrant was issued the next day.
While appellant was at large, Carmen Sperduto observed appellant with Jacqueline Keim. Ms. Keim told Mr. Sperduto that appellant was a fugitive and was staying at her apartment on West Roosevelt Boulevard in Philadelphia. (Appellant was heard to say that "he needed a place to hole up . . . until things got cooled off.") Mr. Sperduto also observed appellant drop and retrieve a small caliber revolver. On October 3, after seeing appellant's picture in the paper, Mr. Sperduto called the police and stated that he "might know" appellant's whereabouts.
About an hour later, Mr. Sperduto conducted the police to Ms. Keim's apartment. The police called for reinforcements, but no search warrant was obtained. When reinforcements arrived, an officer knocked and announced "Police". Thirty to sixty seconds elapsed with no response. The police then
forced open the door and proceeded through the living room and dining room. In a small back bedroom, the police observed what they first thought to be a bundle of clothing beneath a small portable crib. Upon closer examination, the police discerned the figure of a man (appellant) and apprehended the appellant. Simultaneously, the police seized a fully loaded revolver from the top of a small bureau next to the crib, within appellant's reach.
Appellant's motion to suppress this revolver was denied, and the revolver was admitted into evidence at appellant's trial. A jury convicted appellant of escape offenses, possessing an instrument of crime, and possessing a prohibited offensive weapon. [18 Pa.C.S.A. §§ 5721, 5722, 907(a), 908]. Appellant, however, was acquitted of possessing a firearm prohibited to an individual convicted of a "crime of violence." [18 Pa.C.S.A. § 6105]. Appellant ...