Appeal from the Order of April 19 1985 of the Superior Court at No. 799 Pittsburgh 1983, vacating the Judgment of Sentence entered June 2, 1983, of the Court of Common Pleas of Mercer County, Criminal Division, at No. 57 Criminal, 1982 and remanding for a New Trial.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., filed a concurring opinion in which Nix, C.j., and Zappala, J., joined.
Two issues are presented for our consideration in this case. They are 1) whether a criminal defendant's Sixth Amendment right of confrontation*fn1 is violated by the admission
into evidence of a co-conspirator's out-of-court declarations, where the prosecution fails to prove that the declarant is unavailable to testify at trial; and 2) whether a defendant has a reasonable expectation of privacy with regard to his parent's search of the parent's residence in which the defendant lives for a murder weapon belonging to that parent.
Appellee, Ricky D. Pinkins, was one of six men charged with murder, robbery and conspiracy in connection with the armed robbery of the owner and patrons of Porreca's Restaurant & Bar in Sharon, Pennsylvania.*fn2
On January 9, 1982, at approximately 9:30 p.m., three men entered Porreca's Restaurant. One held a shotgun, another held a revolver, and the third acted as the bagman. Two men remained outside in the getaway vehicle. The men in the restaurant robbed the owner and the patrons, one of whom was beaten with the shotgun. As the restaurant owner surrendered his wallet, the perpetrator holding the revolver shot and killed him.
Appellee was not one of the five men at the restaurant, but he was the supplier of the revolver and possibly, the shotgun. The Commonwealth's evidence was that the five agreed at the Colony Bar to rob a place to get money and they needed weapons to carry out their plan. Appellee was called and they drove directly to his home. He was informed by Anthony Wells that a "piece" was needed to get some money. Appellee by his own admission provided
Wells with a loaded .32 caliber revolver. There was some testimony that appellee may also have supplied the shotgun used in the robbery. The five then drove to Porreca's Restaurant. Following the robbery, the five divided the money among themselves, and Wells expressly withheld a share for appellee. The next day, appellee's share and his revolver were returned to him.
Approximately three weeks later, acting upon an informant's tip, police approached appellee's mother without a search warrant and prevailed upon her to search her son's bedroom for the murder weapon. Appellee's bedroom was located in his mother's home. The revolver, which belonged to appellee's mother, was located by her in appellee's jacket pocket in the closet of his bedroom. The furniture arrangement in appellee's bedroom made entry into the closet awkward. When appellee was confronted with the weapon, he made a statement to police in which he admitted giving the revolver to Anthony Wells.
Henry Bruce and Albert Boatwright testified against appellee at his trial, and appellee's taped statement was played for the jury. Statements made by Anthony Wells were introduced at trial under the co-conspirator exception to the hearsay rule. Following his conviction by a jury of murder of the second degree, robbery and criminal conspiracy, appellee moved for a new trial, alleging, among other matters, that the trial court erred in admitting into evidence the statements of Anthony Wells. Appellee argued in support of this contention that 1) the Sixth Amendment right of confrontation was violated by the co-conspirator exception to the hearsay rule; 2) Anthony Wells cannot be a co-conspirator in the legal sense in that Wells was acquitted of all charges at a prior trial; and 3) there was not sufficient independent evidence of a conspiracy to permit Wells' statements to be admitted into evidence. Appellee also alleged that he had a reasonable expectation of privacy as to the closet area of his bedroom and that his Fourth Amendment rights were violated by his mother's search of this area,
thereby requiring the suppression of the discovered murder weapon and his statement.
The trial court determined that all of appellee's assignments of error were without merit and denied appellee's motions for new trial and arrest of judgment. On June 2, 1983, appellee was sentenced to life imprisonment. A divided panel of the Superior Court vacated the judgment of sentence and remanded the case for a new trial, finding that the Sixth Amendment right of confrontation is violated when the hearsay statements of a co-conspirator are admitted into evidence without a showing that the declarant is unavailable. Commonwealth v. Pinkins, 343 Pa. Super. 44, 493 A.2d ...