No. 2665 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division at No. 1166 of 1979.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Robert A. McAteer, Philadelphia, submitted a brief on behalf of appellee.
Wickersham, Montemuro and Watkins, JJ.
[ 315 Pa. Super. Page 238]
This case comes to us on appeal from the Court of Common Pleas of Montgomery County, Criminal Division, and involves a Commonwealth appeal from an order of the court below which granted defendant's motion for arrest of judgment after the defendant-appellee had been convicted of violating the Controlled Substance, Drug, Device and Cosmetic Act.
The defendant had filed a motion to suppress certain evidence obtained when police entered defendant's apartment in response to a complaint about a disturbance. A guest of defendant's had provided the police with access to the apartment by answering the door to defendant's apartment and admitting them to the apartment where the officers observed in plain view two spoons lying on the floor which were scorched with a white powdery substance.*fn1 The police dispatcher who had summoned the officers to the area had indicated that the disturbance was at the defendant's apartment, that a woman had been heard screaming, and that someone was smashing up an automobile outside the apartment. Thus, when the officers were admitted into
[ 315 Pa. Super. Page 239]
the apartment by defendant's guest they talked to the defendant and asked whether they could look for other occupants in the apartment.*fn2 The defendant granted permission to them to search for other occupants. In doing so they discovered various drugs and drug paraphernalia and placed the defendant under arrest.*fn3
The court below refused to suppress the evidence obtained by the police in this manner. However, after defendant was convicted of the drug offenses after a non-jury trial the court granted defendant's motion for arrest of the judgment. The sole reason for the granting of defendant's motion by the court below was the court's finding that it had erred when it had denied defendant's suppression motion. The Commonwealth took the instant appeal.
The sole issue presented in this appeal is whether the evidence obtained by the police was done so unlawfully thereby precluding its admission against the defendant. The court below held that the evidence was illegally obtained by the police because the guest who answered their knocks on the door and subsequently admitted them into defendant's apartment did not have the right to do so and because the officers had no right to rely upon his consent.
A third party who has no interest nor control in a premises may not give the police ...