*1 higher any particular due from at the next retail to sale practicable way only full it is thus the which cent; can the basic Commonwealth ensure that it receives being tax rate. That bracket classifi- schedule’s so, separate purchase cation of sales retail in terms price certainly is reasonable.
IV. The Use Tax Assessment validity Department The of Revenue’s use appeal. directly challenged tax assessment not this Appellant argue does, the Common- however, past present wealth’s collection and assessment of a use upon purchase tax equipment, parts, of various repairs supplies used in connection with laun- his imposing dromats bar the from a sales upon coin-operated laundry purchased tax services Appellant any his customers. has not referred us to provision containing exception, the Act such an authority suggests no know that this mode of uniformity taxation violates the clause. judgment of the Court of Common Pleas of
Dauphin County is affirmed. part
Mr. Chief Justice Bell took no in the consid- eration or decision this case. Appellant.
Commonwealth v. DeMichel, *3 Before Jones, November 1970. Argued Cohen, JJ. Eagen, Roberts and O’Brien, Pomeroy, refused 1971. reargument May 21, Lenard II. for Sigal, appellant.
Paul with Michel, Attorney, B. Assistant District Attorney, District him James D. Crawford, Deputy Attorney, Bichard First A. Assistant District Sprague, and Common- Attorney, Arlen Specter, District. wealth, appellee. 1971:
Opinion April 22, Robeets, Mb. Justice the basis of various Upon lottery paraphernalia in- introduced seized to a search warrant and pursuant con- DeMichel was trial, to evidence at Adam' appellant lottery an setting up illegal victed maintaining for three and sentenced to undergo imprisonment hundred dol- months and to a fine of five twelve pay In from the appeal judgment lars costs. this plus evidence led asserts sentence, appellant executed to his conviction was the fruit an illegally the reсord we must Upon reviewing search warrant. agree. on January 14, during was arrested
Appellant in Phil- home at 707 Sears Street his at time were present Also adelphia. house, initial entry into the daughter. Upon
wife Idtchen attempt- observed sink appellant the police course en- rice paper, ing destroy *4 other found and seized of rice search sheets suing lottery thоusand other containing bets, several paper rice lists of ma- names, sheets paper, adding blank other lottery paraphernalia. and chine tape, filed timely trial motion to appellant Prior to sup: an held items, evidentiary, hearing these press 1968. From testimony elicited at on March police five officers armed with appeared hearing the front аppellant’s a search warrant arrived at on 1967. house 12:40 January 14, row two-story p.m. num- one of their All dressed plain clothes, were door the front approached Officer Daniel ber, Creden, an to create alone a cardboard box in attempt carrying the false of a deliveryman. impression raid member of the Frank another
Corporal Hall, the execution testified as ing party, concerning follows “Q. admit of the warrant: . . . [appellant] Did A. had to entrance. No. you premises? gain We Q.With Q. A. down. or How? We broke the door with Q. . . type out A. With. . What prior warning? did of the house warning you give occupants I him were the door? A. told we breaking Q. much time police we had a warrant. How officers, you between the time said that and when elapsed you broke in the A. door, Approximately approximately? or fifteen ten seconds.” cross-examination Upon by ap en Hall restated his version pellant’s counsel, reaffirm into house but did not that he try person occupants.1 to the ally gave any warnings At the conclusion of the coun hearing, appellant’s sel the affidavit the issuance argued supporting of the search warrant was defective and that the po ille lice’s method into home was The and the mo gal. unpersuaded hearing tion denied.2 suppression pronoun you Instead, de- “Q. Hall used the “we”: And would you specifically, sir, attempted gain scribe the manner in which premises? door, to these A. on the entrance knocked and after We
hearing coming sound from inside the house we announced ourselves police had as that we a warrant. . . . did Q. What you do? A. We announced ourselves as officers and had . . .” a search warrant. question sufficiency pressed is not affidavit appeal. on this *5 case his jury, thereafter waived a Appellant to trial on a different May proceeded Dur- of Common Pleas. Court judge Philadelphia differ- the Commonwealth’s case new and chief, ing the execution came to light concerning ent evidence Hall described the Corporal again the search warrant. into surrounding police’s entry events warn- mention he had given any house but failed to that Creden, to the and Officer occupants, police- ings knocked on man who actually appellant’s door, gave “Q. would relate following testimony: you Now, sir, in detail what from the Court occurred specifically until premises at these the time you time arrived I 12:40 made? A. arrived guess was around Well, I I on walked west Sears at 7th Street, Street, p.m., on knocked the door. A few up went seconds, I announced that up, blind was lifted we were po- lice. The blinds to knock dropped, proceeded and we Q. time, the door down. Within what sir? period Q. From A. the time that blinds were dropped? I sir. A. don’t how Ten, five, know seconds. Yes, many Q. A. as Seconds, Well, sir? soon as dropped, blinds I officer called the fellow who had the hammer sledge Q. . . . and knocked the down. Just make the record you when clear, knocked, you first did not perfectly say I Q. did A. No. anything all, you? just at knocked. And then, according your testimony, someone lifted Q. A. sir. Yes, the blinds? Could tell up you whether or sir? A. I be- female, male tell. I couldn’t curtains lieve there behind the blinds. I were couldn’t Q. it Then the blinds see was. is dropped, sir, who Q. A. That is correct? correct. And then you an announcement made that you were officers, A. sir? not. correct, No, is it is While the blinds I ‘Open police.’ Q. is up, said, up, were And that A. Yes.” said, all sir? you (Emphasis added.) Appellant adjudged guilty, the trial but judgment granted post-trial on Ms motion in arrest ground that the evidence trial demonstrated that *6 warrant not the officers who executed the search had resorting purpose en- announced their before to forcible try. judge Superior reasoning that a trial Court, power suppression has no of to overrule the decision a hearing judge, granting the order of reversed arrest judgmеnt sentencing. the case Fol- remanded lowing imposition appellant again ap- the of sentence, pealed Superior to the That court Court. affirmed judgment granted of sentence, we allocatur.
Preliminarily disagreement we our note with the Su perior apparent categorical holding Court’s that a trial judge powerless suppres to overrule the оf decision a judge. hearing impliedly sion in “[w]e While held Commonwealth 418 211 A. Warfield, 2d (1965) judge that the trial cannot reverse on the same pretrial sup record at trial the decision made after the pression hearing Washington, . . .,” Commonwealth v. (1968) (em Pa. 131, 133 236 A. n.2 n.2, 2d phasis added), the same does not hold true when the judge’s ruling upon trial different is based new and different evidence. light When information comes suppression after hearing clearly demonstrating sought that the by evidence to be introduced the Com constitutionally monwealth is no consideration tainted, justice judicial of or interest of sound administration by prohibiting would be judge furthered the trial from ruling Although it inadmissible. a ruling favorable at suppression hearing relieves the Commonwealth proving the burden of a second time at trial that its constitutionally evidence was obtained, the trial previously must exclude evidence held admissible at the suppression hearing proves when the by defendant preponderance of evidence new at trial that the evi- sought by to be introduced deuce means.3 unconstitutional obtained Superior Although disagree Court, thus we with judge in erred trial instant case believe that the judgmеnt granting motion in arrest finding upon exe- the basis of a properly cuting announce search warrant did not entering appellant’s house. Offi- unequivocally trial had cer Creden testified that he purpose, no he did not state made announcement but similarly mute his or contra- fellow officers Avere testimony Corporal suppression hearing Hall’s dict purpose. That Hall had mаde such an announcement proves being way ab- the record at trial no so, proper police purpose. sence announcement Despite foregoing, persuad- we are nevertheless *7 appellant’s for other the of home ed reasons that search illegally was executed. It is settled this Common- prohibition against wealth that the Fourth Amendment unrеasonable and demands searches seizures private premises upon a officer enters to conduct exigent a or make arrest to an he absent must, 3 litiga- appellant’s pretrial trial, At of the time of the method governed by legality of of searches and seizures Pa. tion expressly speak 2001, question not to ft. P. which did Crim. judge suppression a could overrule decisiоn of the trial whether superseded by hearing judge. a to Rule 2001 was 1969 amendment pro- 323, made R. P. which consolidated and uniform the Pa. Crim. suppression any pretrial alleged relating evidence to cedures of a defendant’s violation constitutional been obtained have recognized rights. rule are this new consolidated there Even the trial should in which be free to ex- some cirсumstances previously admissible. held evidence clude hearing] [suppression court determines that the evi- “If the admissible, final, shall determination be such conclusive is dence upon, showing except trial, binding evidence which and 323(j) (emphasis R. . .” Pa. P. . . Crim. unavailable theretofore added).
561
give
identity
notice
announce
of Ms
and
circumstances,
purpose.
Newman,
Ms
v.
429 Pa.
Commonwеalth
(1988);
A. 2d 795
rel.
240
United States ex Manduchi
Tracy,
(3d Cir.),
v.
2d
350 F.
cert. denied,
(1985);
rel.
U.S.
The to concede tMs argues sition constitutional law but that the occu- pants given house were in fact an ade- quate opportunity open voluntarily. door Cor- poral Hall and Officer Creden testified that began the other officers to break dоwn front door *8 appellant’s house five to fifteen seconds after an- nouncing presence purpose. We cannot deem reasonably period this a sufficient of time. In New- supra, example, for man, this Court stated that “a mere delay twenty answering in second the door con- cannot support for a belief stitute that being evidence was de- stroyed . . . .” 429 Pa. at A. 2d аt 798. And supra, the Ametrane, in United States District Court Pennsylvania that noted District of for the Eastern occupant] if had known . . [the . “[e]ven legitimate might policemen, he have had countless to be taking door.” for a to answer the minute reasons Supp. F. at 559. occupants were
In of the above both cases by police floor whereas to be on the second known Corpоral Hall and Officer Creden testified here through peering blinds saw at them someone very story front a first window located near proximity person to Given the close this door. urged fif- a to are to conclude that mere five we door, delay in these reasonable. But even teen second might entirely “for be circumstances this innocent Appellant’s legitimate ex- countlеss reasons.” wife, peered ample, through testified that was she who delay responding occa- that her window and having being nightgown in a her attired sioned put go Begardless of to to the kitchen to on a robe. testimony, to the truth of her it serves illustrate delay a five to fifteen second was insufficient for police formed a reasonable oc- to belief that the have permit cupants house did not intend to entry. peaceable persuaded
Finally, pre- are not this case ordinary “exigent suspending sents circumstances” occupants premises requirement sought that the given opportunity open reasonable be searched voluntarily. the door officers involved were seeking authorizing execute warrant them to en- lottery рaraphernalia, for and seize ter, experience prior type with this from their of mission they reasonably parapher- believed that some instantaneously in the form of almost nalia would be paper. rice as we However, stated New- destructible lottery paraphernalia some : “The fact that man is easi-
563
suspension
jy
justify
destroyed
does not
the
lottery prosecutions. One
in all
Fourth Amendment
security
prices
pay
of
which
the
we
for the
have
upon
bestows
us
the risk
Fourth Amendment
is
guilty party
escape.”
an
429
occasional
will
(citation omitted).
448,
To excuse
a kitchen rice sink is with- significance. out goes saying determining
“It
without
in
entry
probable
lawfulness
existence
cause
may
only
concern
with what the officers
ourselves
entry.
had
time
reason to believe at the
John
son v. United
333 U.S.
17,
367,
S. Ct.
States,
(1948).
[Supreme]
92 L.
370-371,
Ed. 436
As
Court
in
Di
said United States v.
332 U.S.
Re,
581, 595,
(1948),
S. Ct.
We hold circumstances this case violated standards the Fourth Amend- ensuing ment and that the fruits search were improperly Accordingly, admitted at triаl. Superior judg- the order of the Court reversed. The ment of sentence is and the vacated case remanded trial, a new result. concurs
Mr. Justice Eagen part in no the consid- took Mr. Chief Justice Bell of this case. or decision eration *10 part in the decision of no took Mr. Justice Cohen case. this Pomeroy: by Opinion
Dissenting Mr. Justice portion respectfully I dissent from. sec- fifteen opinion that a five which holds Court’s police by delay announcement after ond lapse time presence not a sufficient and may to. dwelling resorted of a be forcible before a warrant us there was valid In the case before two-story family The residence. of a small, the search quickly destructi authorized seizure warrant search seeking exe lottery paraphernalia. officers ble on rice the records would believed cute warrant They paper, on contact with water. which dissolves who had themselves as announced They the house. voices inside heard warrant. they blind a window announcement saw after their Just door of the house raised next to the front on a window The blind look out the window. within and someone both whо testified The two officers then lowered. was hearing suppression uncertain at trial were and at the they elapsed broke thereafter much time how variously They open it as between estimated the door. twenty seconds.1 five she went testified that
Defendant’s wife opening get door. robe before She kitchen to “ap- respect testimony follows: in this was as The actual “ten, five, proximately seconds”; I don’t how fifteen know ten or say many possibly seconds”; or it ten seconds twen- “I couldn’t was exactly long ty seconds”; tell “I couldn’t how or five seconds very shortly was, [the announcement and the after but it was lowering raising blind]”. of the time, couch at the her on the said husband was asleep one door opened that she who always was her husband when thеre a knock. Asked where was when when came answered that the officers she in, he he heard “the crash” the door (i.e., being broken) offi- (One to the kitchen. jumped and went up, had entered the cers testified that when previously un- defendant was the kitchen white holding paper der tap water.) Newman,
1 do not consider that 2d 240 A. dictates result (1968) now reached the Court. The there was question there whether were circumstances” any “exigent would with the justify dispensing announcement It held that purpose. seconds twenty lapse after an inadequate (“the announcement police”) was *11 not such an exigent circumstance not because it was “to long enough constitute for a belief that support evidence was In the destroyed.”2 case being present dual warning authority and was purpose given. could therefore police conclude that properly fail ure promptly door not oc open because the did know cupants not authority what and for what police claimed the right enter, but be evidence cause. was being destroyed.
Once the have announced identity purpose, have should to wait the time only neces- for someone come sary to the door to admit them. Here the premises to searched a small residence; voices were heard inside the after house the police an- nouncement ; and someone raised and lowered a window blind a few feet from the door. I must agree with the suppression hearing judge, the trial the Su- Court that under pеrior all the circumstances of this majority points opinion out, As the occupants Newman were known to the officers to be on second floor. ease the Fourth against Amendment unrea guarantee not sonable search and seizure was violated. Cf. Com A. monwealth v. Murray, 2d 500 (1970) opinion). (dissenting joins
Mr. Justice Jones this dissenting opinion. Bell, Appellant. *12 Before J., 1970. C. November Argued Bell, JJ. Roberts O’Brien, Pomeroy, Eagen, Cohen,