No. 2885 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County At No. 81-05-1950-51.
Franklin L. Noel, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Jeffrey M. Miller, Philadelphia, for appellee.
Cavanaugh, Wieand and Hoffman, JJ.
[ 320 Pa. Super. Page 308]
This case involves an appeal from an order of the court below suppressing all evidence obtained as a result of a search on March 6, 1981, of a premises damaged by fire, and searches subsequent thereto, and suppressing statements made by the appellee, Cecelia Markman, on the date of the fire and on subsequent dates prior to her arrest. Appellee was charged with risking a catastrophe and arson. The Commonwealth has appealed from the suppression order by the hearing judge.*fn1
When we review an order suppressing evidence we are not bound by the lower court's conclusions of law. "We are bound, however, by the court's findings of fact, if the
[ 320 Pa. Super. Page 309]
findings are supported by the evidence." Commonwealth v. Chandler, 312 Pa. Super. 1, 3, 458 A.2d 204, 205 (1983). The court below made findings of fact which fall into two main categories, those dealing with the search of the premises at 1408 Snyder Avenue, Philadelphia, Pennsylvania, where the fire occurred on the early morning of March 6, 1981 and those dealing with statements by Ms. Markman, who operated C. Markman's Jewelers, a small jewelry shop at that location. At about 12:10 a.m. on March 6, 1981, a fire was reported at 1408 Snyder Avenue. This was a one alarm fire which was extinguished at about 1:00 o'clock. Ms. Markman who rented the store had left the premises a short time before the fire. The owner of the property, Mr. Rothschild, arrived at the scene at about 2:00 a.m. and inspected the premises. Ms. Markman also arrived at the scene of the fire shortly after it was extinguished and she called Russell Glass Company to have the doors and windows boarded up where they were broken. The building was secured by 3:30 a.m.
At about 8:00 a.m. on March 6, 1981, Lt. Caldwell of the Philadelphia Fire Department and Lt. Baxter, who was a trainee in fire investigation, went to the scene of the fire to investigate and found the building completely boarded up and secured. They inquired at a nearby drugstore where the proprietor stated that he knew the tenant and indicated that she would be back at about noon. The fire officials returned to their office and at about 9:30 a.m. Lt. Caldwell received a call from Mr. Rothschild concerning the fire.*fn2
[ 320 Pa. Super. Page 310]
He requested that the fire be investigated and indicated that Ms. Markman may have been involved with the fire. Lt. Caldwell and Lt. Baxter returned to the drugstore at about 12:30 p.m. where they located the appellee and proceeded to the fire scene to commence the investigation. Ms. Markman testified that since the premises were boarded up she went around the corner to obtain a hammer to remove some nails and that the nails were removed by Lt. Caldwell as she "couldn't reach". Once inside the building Ms. Markman answered questions concerning the placement of certain items in the building the night before. Lt. Caldwell took several photographs of the fire scene and also removed samples of carpet, a laminated desk top and some liquid. The purpose of the inspection was to determine the cause and the origin of the fire. In order to visualize the premises before the fire Lt. Caldwell asked Ms. Markman various questions and she "responded freely". Ms. Markman's conversations with Lt. Caldwell took place in the premises where the fire occurred, at the nearby drugstore, and at Ms. Markman's property at 2124 South Broad Street.
The first issue is whether there was a proper entry into the premises on March 6th in the absence of a search warrant. The court below concluded that the appellee did not ...