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filed: November 15, 1982.


No. 489 PITTSBURGH, 1981, No. 997 PITTSBURGH, 1981, Appeal from Orders of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC8007799A, CC8007800A, CC8007800B & CC8103426A.


Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.

Paul R. Gettleman, Zelienople, for appellee.

Hester, Beck and Van der Voort, JJ. Beck, J., files a concurring opinion.

Author: Hester

[ 306 Pa. Super. Page 348]

On May 18, 1979, the body of 26 year old Deborah Gentile was found in Room 239 of the Greater Pittsburgh International Airport Hotel in Allegheny County, Pennsylvania. She had died of multiple .22 caliber gunshot wounds to the head and stab wounds of the chest, back and neck.

A warrant for the arrest of appellee, Richard Henkel, was issued by Judge Robert E. Dauer on October 22, 1980. Probable cause for the arrest warrant was provided by the Presentment of the June, 1979 Allegheny County Investigating Grand Jury. The investigation revealed, inter alia, that the victim and appellant had known each other quite well for approximately one year prior to her death. The victim had been employed by the appellee as a barmaid in his West End bar and restaurant in Pittsburgh. She continued to work there until an altercation between them led to her dismissal in January, 1979. A reconciliation ensued and the appellee arranged for the victim to work with his partner, Jack David Siggson, in their gold jewelry enterprise in California. The victim was employed in the jewelry business from March, 1979 until May, 1979, at which time the

[ 306 Pa. Super. Page 349]

    appellee arranged through Siggson for her return flight to Pittsburgh.

Before the victim departed California for Pittsburgh, the appellee induced her to apply for $800,000.00 of insurance coverage through the Airline Passenger's Association. The appellee's 74 year old mother, Hannah Henkel, was the designated beneficiary.

The grand jury concluded that the afore-mentioned facts discovered during the investigation provided the probable cause to believe that the appellee committed the criminal attempt of theft by deception, criminal conspiracy and criminal homicide.

The appellee was arrested on October 23, 1980 in his residence at 2305 West Hardies Road, Hampton Township, Allegheny County, Pennsylvania. For three days immediately preceding the arrest, an investigation team led by Inspector Charles Mosser, Chief of the Homicide Division of Allegheny County, placed the appellee's residence under surveillance. At approximately 7:20 a.m. on October 23, 1979, Officers Payne and Lackovic and F.B.I. Agent Petritis approached the front door of the residence; Officer Halligan and Detectives Foot and Fitzgerald positioned themselves at the rear door. Inspector Mosser vacillated between both entrances in an effort to determine whether the appellee submitted to the officers' request to gain entry. Officer Pajac remained in the vehicle parked across the street with a dog specially trained in bomb detection.

No response came from within the home; consequently, Halligan, Fitzgerald and Mosser forcibly entered through the basement door. Upon reaching the first floor hallway, they discovered the appellee with one hand on the handrail and one foot on the bottom step of the stairway leading to the second floor. The appellee was restrained by Fitzgerald's raised shotgun and Halligan's service revolver; however, the appellee would not immediately lie face down on the floor in spite of the officers' frequent commands. Instead, he pleaded to use the second floor bathroom.

[ 306 Pa. Super. Page 350]

Inspector Mosser promptly opened the front door and instructed Detective Payne and Agent Petritis to briefly check the second floor for other inhabitants of the house. Detective Halligan followed them to the second floor. They completed a one-minute cursory search of the second floor and recovered a .9 millimeter automatic handgun lying on the bedroom floor and partially concealed beneath the bed.

On October 23, 1980, the day of arrest, a search warrant of the appellee's residence was issued by a nearby magistrate for the purpose of locating and seizing a .25 caliber handgun, any other firearms, documents pertaining to the purchase of said handgun, and documents proving appellee's place of residence. The probable cause for the search warrant was supplied by the cursory search conducted earlier that day and by information disclosed to authorities by Jack David Siggson, appellee's business partner.

Subsequent search warrants were issued to recover, inter alia, writing tablets, telephone bills, business cards, registered mail receipts, address books, film rolls, cassette tapes, a diamond ring, Last Will and Testament of Hannah Henkel, a telephone interceptor device and safe deposit keys. Once again, the probable cause for these warrants was largely supplied by Siggson's statements and items inadvertently seen, but not seized, during the cursory search on the day of arrest.

As a result of items seized under the authority of these search warrants, the appellee was further charged on November 2, 1980 with two counts of violating the Uniform Firearms Act; the interception, disclosure or use of wire oral communications and the possession, sale, distribution, manufacture or advertisement of intercepting devices.

On January 19, 1981, as part of an omnibus pre-trial motion, the appellee filed a motion to suppress all items seized incident to the arrest and pursuant to the search warrants. After a lengthy suppression hearing, the lower court found that the seizure of the .9 millimeter pistol, without securing a search warrant beforehand, was unlawful. The court further concluded that the use of the handgun

[ 306 Pa. Super. Page 351]

    for any purpose, including evidence of guilt and probable cause for the subsequently issued search warrants was unlawful; consequently, the evidence seized under the aegis of the search warrants was likewise inadmissible. The affidavits for probable cause for the search ...

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