No. 392 January Term, 1979, Appeal from the Judgment of the Superior Court affirming the Judgments of Sentence at June Session, 1976, Nos. 161-162: 164-166 of Philadelphia County, Court of Common Pleas, Criminal Trial Division.
John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Marianne Cox, Asst. Dist. Attys., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, C. J., filed a dissenting opinion. Roberts, J., filed a dissenting opinion in which Flaherty, J., joins.
A jury convicted appellant of rape, statutory rape, kidnapping, corruption of a minor and possession of an instrument of crime in a related series of occurrences involving a twelve year old girl.
The Superior Court affirmed his judgments of sentence. We granted review on a petition questioning the presence of exigent circumstances to justify a warrantless arrest on forcible entry into defendant's apartment and alleging reversible error in the refusal to suppress a knife in plain view and a gun found under a mattress in a search incident to the arrest.
Upon such review we find both the arrest without a warrant and the forcible entry were justified under the law then in effect,*fn1 that the suppression court had before it evidence from which it could and did infer the knife was in plain view and that the admission of the gun, though improper, was harmless error because it had a de minimis prejudicial effect on defendant. We therefore affirm.
At the time the police made the warrantless arrest, they had been refused entry to an apartment a lady across the hall had told them was occupied by Clarence Norris and his brother. It had the same number as the apartment the victim had told them she was forcibly taken to at knifepoint. The victim also told the police that her assailant had been called Clarence by a person in the building and the building itself matched her description.
She had given this description to police in an interview the evening of the crime, shortly after she had become hysterical and hung up after appellant had called her at home. The
appellant had informed her he would wait for her at school the next day and had threatened her for the second time with harm if she reported the rape.
Appellant argues that the forcible entry by the police into his apartment, after an announcement of authority but without an express announcement of purpose, was unlawful.
This contention is devoid of merit. It is well-established that "[a]n announcement of both authority and purpose is required before a door can be broken down, absent exigent circumstances." Commonwealth v. Newman, 429 Pa. 441, 444, 240 A.2d 795, 797 (1968). In this case, the police arrived at appellant's door around midnight and noticed that the apartment was lighted and that loud music could be heard coming from inside. The police knocked, identified themselves, and, receiving no response, called headquarters and waited twenty minutes for a back-up unit to arrive before forcibly entering the apartment. It is undisputed, however, that there was no announcement of purpose.
We are satisfied in this case that the officers' partial noncompliance with the "knock and announce" requirement was justified by the presence of exigent circumstances. We recognize that only a limited number of circumstances can be considered to excuse compliance with this Fourth Amendment protection.*fn2 Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1967); United States v. Wylie, 462 F.2d 1178, 1186 n. 53 (D.C.Cir. 1972); Commonwealth v. Beard, 282 Pa. Super. 583, 423 A.2d 398 (1980). These are (1) "when the officers may in good faith believe that they or someone within are in peril of bodily harm." Miller v. United States, 357 U.S. 301, 309, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332 (1957); (2) when the officers have a basis for assuming that a suspect is "armed or might resist
arrest." Sabbath v. United States, 391 U.S. at 585, 88 S.Ct. at 1759; (3) when there is "some affirmative indication to support a belief that evidence is being destroyed." Commonwealth v. Clemson, 234 Pa. Super.Ct. 191, 194 n. 1, 338 A.2d 649, 650 n. 1 (1975); Miller v. United States; Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); (4) when there are similar indications that "the person to be arrested is fleeing." Miller v. United States, 357 U.S. at 309, 78 S.Ct. at 1196; Commonwealth v. Newman ; or (5) when "the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture." Miller v. United States, at 310, 78 S.Ct. at 1196; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Newman; Commonwealth v. Fisher, 223 Pa. Super.Ct. 107, 296 A.2d 848 (1972).
Without question, the police in this case had reason to believe that the suspect was armed and might resist arrest, thus increasing the officers' peril. See United States v. Scott, 520 F.2d 697 (9th Cir. 1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), cert. denied, 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed.2d 1370 (1967). Moreover, the police had a legitimate basis for being virtually certain that appellant already knew the purpose of their visit and that an announcement would have been a useless gesture. The police were aware in this instance that just a few hours before, appellant had telephoned the victim and threatened to harm her if she reported the crime to the police. Thus, when the police arrived, knocked on the door, identified themselves and received no response, they were justified in concluding that appellant was inside, was not going to respond and was aware of the officers' presence and purpose. The failure of the officers to ...