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COMMONWEALTH PENNSYLVANIA v. MICHAEL ELLIS (04/20/88)

submitted: April 20, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL ELLIS, APPELLANT



Appeal from the Judgment of Sentence entered December 15, 1986 in the Court of Common Pleas of Delaware County, Criminal Division, No. 3274-85.

COUNSEL

Robert F. Pappano, Assistant Public Defender, Chester, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Com.

Olszewski, Kelly and Hoffman, JJ.

Author: Kelly

[ 379 Pa. Super. Page 340]

Michael Ellis appeals from judgment of sentence imposed following his conviction of arson and related offenses. He contends that evidence secured during a warrantless arson

[ 379 Pa. Super. Page 341]

    investigation search was illegally obtained, statements made by him at the hospital were the product of an illegal custodial interrogation, evidence of prior convictions was improperly used against him at trial, and his convictions were against the weight of the evidence. We find no merit in the contentions and affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

At approximately 6:30 p.m. on May 30, 1985, Officer Phillip Patchell, working motorcycle patrol, was dispatched to investigate a report of a structural fire at Long Lane and Pembroke near the border of Upper Darby and Lansdowne in Delaware County, Pennsylvania. He arrived a short time thereafter and discovered a house fire. After properly reporting the fire, he was dispatched to the Delaware County Hospital where two occupants of the house had been taken for emergency treatment of second degree burns.

Shortly after Officer Patchell left the scene, Officer John Egan and Fire Chief Dave Lauro arrived at the scene. Officer Egan had 14 years experience as a police patrolman; he was also the current president of the fire company and a 21 year veteran fire fighter.

Officer Egan and Fire Chief Lauro first attempted to enter the burning building to determine whether any occupants were trapped inside. Intense heat and thick black smoke drove them back. They then yelled into the house but no one responded. The fire company arrived a couple of minutes later, and the blaze was extinguished within 15 or 20 minutes.

While the fire was being fought, Officer Egan maintained crowd control. Fire Chief Lauro relayed to Officer Egan a report from firemen in the building that they smelled heavy gasoline fumes in the kitchen area. When the fire was extinguished Officer Egan and Fire Chief Lauro began to investigate the cause of the fire. In the kitchen, Officer Egan smelled a heavy odor of gasoline, confirming the firemen's earlier report.

[ 379 Pa. Super. Page 342]

Prior to beginning his investigation, Officer Egan received a radio report that two occupants of the residence had been taken to the Delaware County Memorial Hospital for treatment of burns. He asked the radio dispatcher to send an officer to the hospital to confirm the report, and to keep them there until he could get there to interview them. Officer Patchell and Officer Edward Hunger (who went to the hospital to provide back-up and cruiser transport to Officer Patchell in case it was necessary) both testified that they had not been directed to detain either of the occupants, that they had taken no steps to detain them, and in fact did not speak to either of the occupants. Officer Hunger indicated that if either had attempted to leave he would have asked them to stay until Officer Egan could come to get information for his incident report, but that he would not have prevented them from leaving as he had no basis to detain them. The necessity for such conduct, however, never arose; neither attempted to leave while Officers Patchell and Hunger waited for Officer Egan.

After Officer Egan made his brief initial observations in the kitchen, he asked Fire Chief Lauro to preserve the scene by keeping the firemen out of the kitchen until after he returned from interviewing the two occupants at the hospital. On his way to the hospital (which was only a ten minute drive away), Officer Egan called Delaware County Fire Marshal George Lewis requesting him to come to the fire scene because of the suspicious nature of the fire, i.e. the presence of the strong odor of gasoline.

When Officer Egan arrived at the hospital, Officers Patchell and Hunger left. Officer Egan then interviewed one of the occupants, whom he knew on sight as Michael Ellis, the appellant. Officer Egan knew that appellant lived at the residence which had been on fire. Officer Egan asked appellant what happened. Appellant explained that he had been in the kitchen making tea when the gas stove exploded. Officer Egan then asked about some charred paint cans he had seen in the kitchen; appellant responded that he had been painting the house a few days earlier. Finally, Officer

[ 379 Pa. Super. Page 343]

Egan asked appellant if there had been any gasoline or other flammable materials in the kitchen; appellant answered that there was not.

Officer Egan then spoke briefly with the other occupant, Adam Abel, who was tried as appellant's co-defendant but discharged upon a demurrer. Before leaving, Officer Egan seized the soot and blood stained clothing of the two occupants.*fn1

Officer Egan then returned to the scene of the fire where he was met by Fire Marshal Lucas. The firemen were still at the scene putting away equipment and "overhauling" the rooms other than the kitchen.*fn2 For the next two and one-half hours, Officer Egan and Fire Marshal Lucas carefully photographed, examined, and preserved physical evidence in the kitchen area. In addition to the photographs which provided detailed evidence regarding burn patterns and charring depth necessary to reconstruct events and to establish the cause of the fire, they found and preserved partially melted plastic milk jugs which contained a liquid that smelled like gasoline (which was inexplicably poured out), and were able to establish the absence of any defect in the stove or the gas lines which could have caused an explosion as appellant had indicated had occurred. The investigation was completed by 8:30 p.m. Thus, no more than three hours had passed from the time when the fire was first reported to the time when the investigation was completed. Three days later, another search was conducted pursuant to a lawful search warrant; photographs were taken but no new evidence was seized.

On June 10, 1985, appellant was arrested and charged with arson and related offenses. A pre-trial suppression motion which sought suppression of the statements made by appellant at the hospital and the evidence seized at the scene of the fire was denied following a hearing on October

[ 379 Pa. Super. Page 34428]

, 1985. A jury trial commenced on November 12, 1985, and on November 14, 1985 appellant was found guilty of arson and recklessly endangering another person. Post-verdict motions were filed, argued and denied. On December 15, 1986, appellant was sentenced to an eleven and one-half (11 1/2) month to twenty-three (23) month term of imprisonment on the arson conviction and a concurrent six (6) to twenty-three (23) month term of imprisonment on the recklessly endangering another person conviction.

Timely notice of appeal followed. We find no merit in any of the four contentions raised on appeal. We shall discuss each seriatim.

I. WARRANTLESS FIRE INVESTIGATION

Appellant first contends that the trial court erred in failing to suppress the fruits of the warrantless fire investigation. Appellant argues that the search of his home did not come within the fire investigation/exigent circumstances exception as explained by the United States Supreme Court in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) and Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). Appellant argues that the search was for the purpose of gathering evidence and that no exigency justified Officer Egan's failure to get a warrant before continuing his search after he returned from the hospital. Appellant misconstrues Tyler, Clifford, and their progeny.

A.

Fourth Amendment proscriptions apply only when the conduct challenged violates an actual expectation of privacy which society is prepared to accept as reasonable. See California v. Greenwood, 486 U.S. , , 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30, 36 (1988) (collecting cases). Though the Fourth Amendment protects people rather than places, the determination of whether an actual and reasonable expectation of privacy existed usually requires some reference to place. Katz v. United States, 389 U.S. 347, 351,

[ 379 Pa. Super. Page 34588]

S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967); id., 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 587 (Harlan, J., concurring).

Undeniably, one of the primary sources of a reasonable expectation of privacy is the right to exclude trespassers which attaches to private property. See Rakas v. Illinois, 439 U.S. 128, 142 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387, 401 n. 12 (1978). One's private residence is ordinarily a refuge wherein one's reasonable expectations of privacy are exceptionally strong. See ...


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