No. 411 PHILADELPHIA, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1827-33 November Term, 1978.
Thomas L. McGill, Jr., Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Hester, Wickersham and Popovich, JJ. Popovich, J., files a dissenting opinion.
[ 316 Pa. Super. Page 103]
This is an appeal from a judgment of sentence imposed on appellant for his convictions of aggravated assault, possessing an instrument of crime, carrying a firearm in a public street, and recklessly endangering another person. Appellant challenges the legality of his arrest and also asserts that the trial judge erred in denying his motion for a mistrial or cautionary instructions following the prosecutor's closing arguments. After closely scrutinizing appellant's arguments, we conclude that the record is free from error in all respects. Accordingly, we affirm the judgment of sentence.
The facts leading to the prosecution of appellant are as follows. On October 31, 1978, at approximately 2:30 p.m., James Hampton was shot in the head in North Philadelphia. Eye witnesses informed the investigating officers that the perpetrator was an individual known as "Country". One of the detectives, David Kaisinger, knew appellant went by the aforementioned nickname. At approximately 8:10 that evening, an eyewitness was shown an array of photographs which included appellant's picture, and identified appellant as the one who committed the assault.
Detective Edward Gallagher, who conducted the identification procedure, returned to the scene of the shooting at approximately 8:30 p.m. There he was advised by Officer Johnson of a tip by an unidentified informant to the effect that appellant was in a second floor bedroom at 1920 North Napa Street, was armed, and that he was going to leave town that night. Detective Gallagher called for a stake-out team. Upon their arrival, the police immediately proceeded to the Napa Street address where they entered an unlocked door, proceeded to the second floor, and apprehended appellant at 9:15 p.m.*fn1 Subsequent to his arrest, appellant volunteered a statement to the authorities.
[ 316 Pa. Super. Page 104]
After a hearing on November 1, 1979, appellant's motion to suppress both his statement and the weapon seized at the time of his arrest was denied. Following a trial by jury, appellant was convicted of the aforementioned charges and sentenced to ten (10) to twenty (20) years imprisonment.*fn2 This appeal was thereafter perfected.
The first issue which appellant raises is an assignment of error by the trial judge in denying appellant's application to suppress his statement and physical evidence. Appellant complains that the police officer's entry into the Napa Street residence without a warrant constitutes an unreasonable search and seizure which is repugnant to the Fourth Amendment, and which fails to comport with the tests embodied in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Moreover, appellant contends that the warrantless entry and his arrest by the police could not be justified on the grounds of exigent circumstances.
Appellant relies upon the Pennsylvania Supreme Court decision of Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980), which held that an arrest warrant was required to effectuate a valid arrest inside the arrestee's home absent exigent circumstances. Those considerations which have been recognized as exigent circumstances include: 1) the gravity of the offense; 2) a reasonable belief that the suspect is armed; 3) a clear showing of probable cause; 4) a reasonable belief that the suspect is within the premises sought to be entered; 5) a likelihood that the suspect will escape; 6) the time of entry; and 7) whether the entry was peaceful. Commonwealth v. Williams, supra 483 Pa. at 298-9, 396 A.2d at 1179, quoting Dorman v. United States, 140 U.S.App.D.C. 313, 320, 435 F.2d 385, 392-3 (1970).
Appellant argues, in essence, that the police had neither a warrant nor a reasonable belief that the suspect was within
[ 316 Pa. Super. Page 105]
the premises or that he would attempt to escape. Rather, the police relied upon information provided to Officer Johnson by an informant with no outward indicia of reliability. Therefore, appellant concludes that the police lacked sufficient exigent circumstances to vitiate the need for a warrant.
Appellant's interpretation of the Williams' warrant requirement is correct; appellant's argument falters in two regards. First, the Williams case is inapplicable to the case at bar. That decision was rendered on November 18, 1978, and held to be prospective only in Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980). Appellant was arrested on October 31, 1978. Consequently, Williams is not dispositive of this issue. Instead, we must look to the state of the law prior to November 18, 1978, to determine if warrantless arrests inside a residence were legal.
In Commonwealth v. Norris, 498 Pa. 308, 312 n. 1, 446 A.2d 246, 248 n. 1 (1982), the Supreme Court observed:
" Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978) cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980) which established a warrant requirement for arrests in the home in this Commonwealth has held to apply only to arrests occurring after November 18, 1978, when it was handed down. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981). Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) announced the same warrant requirement under federal law prospectively. Appellant was arrested May 29, 1976. At that time, the requirement for a warrantless arrest in the home was a showing of probable cause."
The Commonwealth therefore was only required to prove probable cause. See also Commonwealth v. Eliff, 300 Pa. Super. 423, 446 A.2d 927 (1982). That is not to say that all pre- William entries into homes to effectuate arrests were valid. Such entries prior to the Williams ...