No. 80-1-153 and No. 44 W.D. Appeal Docket, 1982 Appeal from the Judgments of Sentence entered on July 28, 1980, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at Nos. CC7901009 and CC7901039.
Claudia C. Sharon, Sharon & Sharon, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Pittsburgh, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., filed a concurring opinion in which Nix, J., joins.
In the early morning hours of January 28, 1979, an angry racial confrontation developed between two groups of young males in the Beltzhoover section of the City of Pittsburgh. The charged incident quickly deteriorated into deadly violence as gunfire cracked in the cold snowy night*fn1 and James Fink, one of the white youths involved, was shot and killed.*fn2 The Appellant, Paul Tann, a young black man, was charged in the slaying.
After a trial by jury, Tann was convicted of third degree murder, possession of an instrument of crime, and recklessly endangering another person. Post-trial motions were filed and denied and the appellant was sentenced to serve a term of imprisonment of ten to twenty years.*fn3 A direct appeal to this Court followed.*fn4
First, the appellant challenges the trial court's denial of his motion to suppress a rifle and scope seized by the authorities at the time of his arrest. Tann argues that the rifle and scope were seized in violation of rights guaranteed him by the Fourth Amendment to the United States Constitution.*fn5 In reviewing the suppression court's ruling in this case we will limit our consideration to the evidence of the Commonwealth and the uncontradicted evidence of the appellant. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).
The record establishes the following:
On January 29, 1979, armed with an arrest warrant and acting upon information received from one Joseph Patterson, another young man charged in the incident, Pittsburgh police officers went to a house on Climax Street. Patterson had described the approximate location of the dwelling as being located at a certain specific intersection on Climax Street. No address was supplied. In addition the police had
information that the fatal weapon was a 30 caliber rifle with a scope attached.
Upon arrival at the designated intersection, the officers first went to 99 Climax Street. A female who answered the door told the inquiring policemen that she did not know Tann and did not know of his whereabouts. After visiting three other houses at the intersection and the home of Tann's parents a few blocks away without results, the officers called back to the Station House to re-check the location with Patterson. They were told to go to the first house they had visited. On their second visit to 99 Climax Street the officers were admitted to the premises by one of the occupants, Karen Timbers.*fn6 After initially denying that the appellant was on the premises, Karen Timbers stated that Tann was present in the house and he had a gun. She directed the police officers to a first-floor bedroom situated right off the kitchen where she said he was hiding. The officers went to the doorway of the bedroom pointed out by Karen Timbers and ordered the appellant to exit. Following a period of silence of approximately 2 or 3 minutes, Tann came out with his hands raised. At this point the appellant was turned toward a wall and handcuffed. One of the arresting officers took two steps into the dark room from which Tann had just emerged and found, on the floor directly in his path of entry, a rolled-up rug with a rifle protruding from the left side. He also observed a scope resting on the floor a very short distance from the rifle.*fn7 Both the rifle and scope were seized and tests established that the rifle was the one used to fire the bullet which killed James Fink.
By appropriate motion the appellant sought to suppress the introduction into evidence of the seized rifle and scope. The suppression court refused appellant's motion and held
the items to be admissable*fn8 citing Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) where the United States Supreme Court stated:
"It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence."
Further, the lower court ruled that Tann "Did not have any expectation of privacy in the bedroom of a house he did not occupy."*fn ...