Appeal from the Judgment of Sentence of the Court of Common Pleas, of Allegheny County, Criminal No. 8308394A.
Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Popovich, Watkins and Lipez, JJ.
[ 343 Pa. Super. Page 401]
In a non-jury trial, defendant was convicted of robbery, aggravated assault, and two firearms violations. A pre-trial motion to suppress evidence of a handgun was denied. Post-trial motions were denied, sentence was imposed, and defendant took this appeal alleging that the lower court erred in refusing defendant's motion to suppress evidence of the gun seized from defendant's apartment, because the police activities in question violated the Fourth Amendment's rule against unreasonable searches and seizures. We affirm.
[ 343 Pa. Super. Page 402]
The facts surrounding this incident are as follows: police officers responded to a call regarding a robbery and shooting incident. At the scene, police first secured aid for the victim they found lying in the street, then were conducted by an eyewitness to the nearby home of the defendant. As police approached the defendant's apartment, they noticed that the front door was wide open, and they could see the defendant clearly through the screen door. Police saw that the defendant was sweating, and that his shirt was spattered with blood. They asked defendant to step out on to the porch, which he did. The accompanying eyewitness then identified defendant as the assailant, and the officers placed defendant under arrest. Incident to the arrest, the victim's wallet was discovered by a pat-down search of the defendant. The arresting officers were joined by a back-up team, who were directed to secure defendant's apartment. One of the officers described the procedure of securing the apartment:
Check to make sure nobody is in it. First make sure the back door was closed, the windows were secured, nobody could get into the house other than through the front door with a key . . . I waited before I locked the entry, wanted to make sure no other means of entry like the back door or the windows. (N.T. 28).
The officer testified that it was the responsibility of the back-up team to secure the apartment and lock it up. The officers went through the entire apartment to make sure the windows were closed and other entrances were locked so that nobody would disturb potential evidence, and to determine if there were any other occupants in the apartment. During this security check, one of the officers noticed the barrel of a gun protruding from a piano stool case, and a spent casing on the floor. It is this handgun which defendant seeks to suppress.
Defendant does not argue that the arrest of defendant was invalid. Police clearly had probable cause to arrest defendant in this case. Instead, defendant claims: (1) that Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d
[ 343 Pa. Super. Page 403409]
(1970), strictly prohibits the search of a dwelling incident to an arrest which occurred outside the dwelling; and (2) that there were no "exigent circumstances" which ...