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COMMONWEALTH PENNSYLVANIA v. SUSAN MARIAN KITCHENER (03/24/86)

filed: March 24, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
SUSAN MARIAN KITCHENER, APPELLANT



Appeal from the Judgment of Sentence September 19, 1984 in the Court of Common Pleas of Monroe County, Criminal, No. 634-1983

COUNSEL

John P. Lawler, Stroudsburg, for appellant.

James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.

Wieand, Cercone and Roberts, JJ.

Author: Roberts

[ 351 Pa. Super. Page 617]

Appellant Susan Marian Kitchener and her co-defendant Kevin Michael Donahue, in a non-jury trial, each were found guilty of criminal conspiracy, 18 Pa.C.S.A. § 903(a), possession of a controlled substance, 35 P.S. § 780-113(a)(16), and possession of a controlled substance with intent to deliver, 35 P.S. § 780-113(a)(30). Concluding that Kitchener's arrest was proper, that the Commonwealth presented evidence sufficient to prove guilt beyond a reasonable doubt, and that no abuse of discretion accompanied sentencing, we affirm the judgment of sentence.

An arrest warrant was issued for Donahue, a fugitive from justice in the State of New Jersey, and executed at the couple's residence at about noon on July 6, 1983. After announcing their presence and then hearing running foot-steps, the police immediately entered the home. The period from announcement until entry was approximately 10 seconds. While securing the residence, one of the officers found in plain view a small amount of marijuana in an ashtray in the living room. Based upon this discovery, a search warrant was issued to investigate the entire residence for illegal drugs and drug paraphernalia. The search warrant was executed about two hours after Donahue's arrest. From this search, the police found, under the bed where defendants were discovered, a mason jar with 327.7 grams of metamphetamine and a briefcase containing syringes, 78.8 grams of metamphetamine, and Kitchener's automobile registration card. Also found was a plastic bag with 20.3 grams of metamphetamine located in the freezer compartment of the refrigerator and 54 milligrams of cocaine and an indeterminate amount of marijuana located under a living room chair. Subsequent to this discovery, Kitchener also was arrested.

Absent exigent circumstances, a police officer executing a warrant must give notice of his identity and announce his purpose prior to entering a private residence.

[ 351 Pa. Super. Page 618]

    were aware that Donahue's record included arrests for several violent crimes including attempted murder, aggravated assault, and assault with a deadly weapon. A fugitive warrant for his arrest, issued by the State of New Jersey, was based in part on Donahue's possession of a handgun in his car. Further, as was noted at the suppression hearing, Donahue was reputed to be "a person who liked guns, machine guns, in particular."

When, after announcing their identity and purpose, the police heard running footsteps within the residence, strong reason existed to believe that Donahue was attempting either to escape or to arm himself. Clearly, given all that had come into the knowledge of the police prior to execution of the arrest warrant, forcible entry into the residence was justified by exigent circumstances. See, e.g., Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982) (exigent circumstances exist where potential harm and peril to police safety are present); Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982) (where there are indications that a suspect is fleeing, exigent circumstances are found). At this instance, the requirements of the "knock and announce" rule became inapplicable. See Stanley, supra; Norris, supra.*fn1

Kitchener next contends that the Commonwealth failed to introduce sufficient evidence to sustain a guilty verdict on each of the three ...


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