Commonwealth, Appellant, v. Deren.
Superior Court of Pennsylvania
March 31, 1975
It must be remembered that “[a] petition to open judgment is addressed to the sound discretion of the court and is an appeal to the court‘s equitable powers.” Wenger v. Ziegler, 424 Pa. 268, 273, 226 A. 2d 653, 655 (1967). See also Atlas Aluminum Corp. v. Methods Research Products Company, 420 Pa. 407, 218 A. 2d 244 (1966). In passing on a petition to open judgment, the trial court‘s decision is basically an equitable determination made under all the circumstances. We should not reverse a decision of this kind absent a showing by the appellant that the trial court committed a clear and manifest abuse of discretion. It is not enough that we would decide differently were we the court of initial jurisdiction. There must be a demonstration that the trial court applied erroneous legal principles to the factual situation presented, or that the court was biased or prejudiced against the appellant. This is clearly not such a case.
I would affirm the order of the court below.
JACOBS and SPAETH, JJ., join in this dissenting opinion.
Martin J. King, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellant.
John A. Van Luvanee, with him William H. Eastburn, III, and Eastburn and Gray, for appellee.
This appeal comes before the court following a lower court order suppressing evidence obtained pursuant to a search warrant. The Commonwealth appeals, claiming at oral argument that the suppression order is in error and that its case will be substantially prejudiced if the suppressed evidence is not admitted. We are again faced with the difficult problems which arise when the Commonwealth appeals such an order. We conclude that the appeal is proper and the evidence should be admitted.
At approximately 11:00 p.m. on March 31, 1971, Mrs. Jean Dutton was assaulted and robbed by an intruder in her home. As Mrs. Dutton was putting out the trash, the intruder grabbed her from behind and forced her into the house and into the bedroom. There he ripped off her clothes, warning that he would kill her if she screamed and aroused her children. Her attacker was wearing a simple Halloween mask that covered the region around his eyes. Mrs. Dutton managed to pull this mask down during the struggle. She later identified appellee as the man who attacked her, and pointed out appellee‘s house to the police.
The evidence that was suppressed consisted of samples of hair from appellee‘s head. The Commonwealth intended to show that a comparison of appellee‘s hair and hair found at the scene indicated that the hair found at the scene could have come from the appellee‘s body.
The case of Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), presents the law now applicable as to when a suppression order is appealable by the Commonwealth. While Bosurgi has been previously interpreted, we believe a re-examination and re-definition of the directives of that case is needed.
The Bosurgi court stated: “From the point of view of the Commonwealth, two possible situations may arise: (a) the order of suppression will result in a termination and conclusion of the prosecution or (b) while the order
We interpret this to mean that any time the Commonwealth alleges that its case will be either terminated and concluded or substantially prejudiced by a suppression order, we must review the suppression order only on its merits. Stated another way, when the District Attorney from one of the counties of this Commonwealth
To apply any other test could permanently exclude evidence even if it was improperly suppressed. Such a result is contrary to our function in this matter, which is to ascertain that all evidence received is proper and to insure that the rights of all parties are protected. The District Attorney, representing the people of this Commonwealth, and he alone, has the right and duty to present the Commonwealth‘s case with all the legally available evidence that he, in his judgment, believes to be substantially necessary to the case.
In the case of Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 235 A.2d 462 (1967), the Commonwealth appealed a suppression order and Judge JACOBS, writing for the majority, stated: “[s]ince appellee has not filed a motion to quash, we will assume that the suppression order will substantially handicap the Commonwealth and hear the appeal.” 211 Pa. Superior Ct. at 296, 235 A.2d at 463. When we are correctly willing to assume substantial prejudice we must also be willing to accept the Commonwealth‘s stated position that it will be substantially prejudiced by the suppression order.
The case at bar is exactly such a situation where the Commonwealth is substantially prejudiced because it cannot present all its available evidence and is deprived of the opportunity of testing the validity of the suppression order.1 An examination of the record indicates that the hair sample evidence was improperly suppressed. In
In the present case, there was much testimony given to the magistrate between the date of the commission of the crime and the date of the issuance of the search warrant. At the time the warrant was issued, the magistrate could examine both the written search warrant affidavit and the unrecorded sworn oral testimony of the officers seeking the warrant. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973).2 However, the oral testimony here was not given under oath, and could not be utilized to help determine probable cause. Notwithstanding, an examination of the written affidavit alone clearly establishes probable cause on its face.
The affidavit reveals that the victim, Mrs. Jean Dutton, was able, during the struggle, to remove the mask her assailant was wearing and she recognized appellee. She later pointed out appellee‘s house to the police, indicating she knew appellee before the incident. These facts were more than sufficient to establish that appellee was the attacker which in turn established probable cause for the search and seizure.
The affidavit then states, “[y]our affiant located certain latent palm prints and hair specimen were found at Timberlyn Farms.” The lower court determined that the statement concerning hair samples was unparticularized and of no probative value, thus not supporting prob
As the Supreme Court stated in Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971), the language in the affidavit must be tested and interpreted in a common-sense and realistic fashion. See also Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352 (1972). Judge WATKINS noted in his dissenting opinion in Commonwealth v. Robinson, 218 Pa. Superior Ct. 49, 269 A.2d 332 (1970): “More and more it is being brought home to reviewing courts that common sense and not technical nit picking must be applied to the problems created by the application of law enforcement officers for search and seizure warrants.” 218 Pa. Superior Ct. at 57, 269 A.2d at 336.
A common-sense reading of the affidavit indicates that on its face, there was sufficient information to determine that hair was found at Timberlyn Farms and that the hair might have come from the person identified by the victim as the attacker. This constitutes adequate probable cause.3
The lower court also determined that the scope of the property to be seized was ill-defined. The affidavit described the evidence to be seized as “Specimen of Head Hair Sample of the person of Henry T. Deren.” We disagree with the lower court and conclude that this was an adequate description of the evidence to be seized. As to discussion over whether a “sample” or “specimen” indicates only one hair as opposed to several hairs, we will simply refer to the above stated rule which mandates a
Of more useful concern is that the search be conducted in a reasonable manner. The decision as to the reasonableness of the search and seizure is the proper province of the court and will be determined on the facts and circumstances of each case. Cf. Commonwealth v. Cockfield, 411 Pa. 71, 190 A.2d 898 (1963); Commonwealth v. Anderson, 208 Pa. Superior Ct. 323, 222 A.2d 495 (1966). Here, the police snipped eleven strands of appellee‘s hair from eleven different locations on appellee‘s head. The record indicates that the search and seizure was totally reasonable.
In addition to the above points, we should briefly mention several other considerations dealing with the validity of the search and seizure warrant and the legality of seizing hair samples. First, it is well established that the use of bodily identification evidence, such as hair samples, does not violate the privilege against self incrimination. United States v. Allen, 337 F. Supp. 1041 (E.D. Pa. 1972). Although some courts have required a search warrant before seizure4 and others have permitted the seizure of the hair samples without a warrant,5 there is no question that hair samples may be taken.6 As there was a valid search warrant in the present case, we need not here decide under what circumstances a warrant will be required and in what situations the police may act without one.
Second, approximately four months elapsed between the arrest and the time when the sample was actually taken. An examination of the facts reveals that the police were not aware of the need for the hair sample until sometime after the arrest when the FBI lab re-
The probable cause which supports the search warrant must indicate that the evidence to be seized is presently in the possession of the defendant. Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971). In other words, the probable cause must not be “stale” as it applies to the evidence involved, but must reflect present conditions. For example, in the case of Commonwealth v. Shaw, supra, a warrant issued on December 8, 1968, supported by probable cause dealing with events from April, 1968, was declared invalid because there was no present probable cause to indicate that the evidence was still in defendant‘s possession.
However, the case at bar does not involve such a situation. There was no question that the evidence to be seized was still in the appellee‘s possession. The fact that the crime was committed and the victim identified appellee as her attacker is sufficient to establish probable cause for the search and seizure of the hair sample. This probable cause would not become stale but would continue to support the evidence of the commission of a crime and would be equally valid at the time of arrest or four months later. Appellee was in no way prejudiced by the delay, and the Commonwealth‘s procedure was in no way unreasonable.7
Lastly, there was some question as to the validity of the magistrate giving the oath after receiving the information. However, this procedure, while unusual, has no adverse effect on the validity of the oath, the acceptability of the testimony, or the determination of probable cause. United States ex rel. Boyance v. Myers, 270 F. Supp. 734 (E.D. Pa. 1967); Lopez v. United States, 370 F.2d 8 (5th Cir. 1966); Cf. Commonwealth v. Beddick, 180 Pa. Superior Ct. 221, 119 A.2d 590 (1956).
For the above reasons we reverse the suppression order and allow the Commonwealth to use the evidence derived from the hair sample comparison. Anytime the Commonwealth asserts substantial prejudice as a result of a suppression order, our court will determine the validity of the order on its merits.
HOFFMAN, J., did not participate in the consideration or decision of this case.
DISSENTING OPINION BY SPAETH, J.:
Although the propriety of taking this appeal was not briefed by either party, it was raised by this court at the oral argument.1 I believe the appeal should be quashed.
At approximately 11:00 p.m. on March 31, 1971, Mrs. Jean Dutton was assaulted and robbed by an intruder in her home. The intruder grabbed her from behind as she was putting out the trash and carried her into the bedroom. There he ripped off her clothes, warning that he
The evidence that was suppressed consists of samples of hair from appellee‘s head. In the amended bill of particulars the Commonwealth stated that “[a]n analysis of [appellee‘s] hair and comparison with hair samples found at the scene determine that the latter hair sample could have come from the body of [appellee].”
As a general proposition it may be said that the jurisdiction of an appellate court is limited to the review of “final orders.” If the order is “interlocutory” some special authorization conferring jurisdiction must be found. With specific reference to this court, the
It would seem that an order suppressing evidence is interlocutory: it is a pre-trial order, and it does not preclude the Commonwealth from proceeding with the trial. On this analysis the order would be appealable only if (a) appeal “is authorized by law” or (b) the court below has appropriately certified the order. Appellate Court Jurisdiction Act, supra. Since there is no “law“, i.e. statute, authorizing appeal from an order suppressing evidence,3 appeal would only lie if the order has been appropriately certified. In fact, however, the cases have taken a different tack, and the question of whether an order suppressing evidence may be appealed has been decided by considering whether under the circumstances of the particular case the order has “such an attribute of finality” as to make it proper to treat it as though it were a final order. The origin of this approach is Commonwealth v. Bosurgi 411 Pa. 56, 63-64, 190 A.2d 304, 308 (1963), where it was said: “From the point of view of the Commonwealth, two possible situations may arise: (a) the order of suppression will result in a termination and conclusion of the prosecution
The typical case of a Commonwealth appeal allowed under part (a) of the Bosurgi rule is where the crime is one of possession of contraband. The (usually unstated) promise is that without the fruits of the search the Commonwealth cannot prove that the defendant ever had the contraband; thus an element of the crime would be lacking and the Commonwealth would not be able to prove its case. Commonwealth v. Pugh, 223 Pa. Superior Ct. 112, 296 A.2d 864 (1972) (possession of heroin); Commonwealth v. Manduchi, 222 Pa. Superior Ct. 562, 295 A.2d 150 (1972) (bookmaking paraphernalia); Commonwealth v. Hernley, 216 Pa. Superior Ct. 177, 263 A.2d 904 (1970), cert. denied 401 U. S. 914 (1971) (illegal lottery); Commonwealth v. Payton, 212 Pa. Superior Ct. 254, 243 A.2d 202 (1968) (bookmaking); Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 235 A.2d 462 (1967) (possession of narcotics).5
Cases where the appeal has been quashed because it appears that despite the order suppressing evidence the Commonwealth will be able to prove its case are unusual, perhaps because fewer of these cases are appealed. In Commonwealth v. Thorne, 223 Pa. Superior Ct. 122, 299 A.2d 370 (1972), the appeal was quashed
In the present case the evidence that has been suppressed would allegedly prove that hair found at the scene of the crime “could have come” (in the Commonwealth‘s words) from appellee‘s head. Mrs. Dutton, however, is apparently prepared to testify, as she did at the hearing on the motion to suppress, that appellee assaulted her, and that she knows he did because she got a good look at him and recognized him as someone she knew. Thus the suppressed evidence is not needed to supply an element of the crime. Nor does it appear that the evidence is needed to reinforce other evidence that by itself is probably insufficient. Nothing suggests that Mrs. Dutton‘s testimony would be insufficient to carry the case to the jury; to the contrary, it appears quite sufficient; and in any case, it is by no means clear that evidence of the hair test would work any reinforcement. The Commonwealth‘s offer is to have an expert witness compare hair taken from appellee‘s head with hair found at the scene. If after making the comparison the expert would only say that the hair found at the scene “could have come” from appellee‘s head he would not have said much. It seems implicit, moreover, that on cross-examination he would have to acknowledge that the hair at the scene might not have come or that he could not tell whether it did in fact come from appellee‘s head, in which event, depending upon what further cross-examination elicited, the testimony might
Thus it cannot be said, as it was in Commonwealth v. Bosurgi, supra, either (a) that the order suppressing the hair found at the scene “will result in a termination or conclusion of the prosecution,” or (b) that because of the order the Commonwealth will be “substantially handicapped because it cannot present all its available evidence. . . . The evidence suppressed may well mark the difference between success and failure in the prosecution.” Id. at 63, 190 A.2d at 308. Accordingly, under the Bosurgi rule the appeal should be quashed.
JACOBS, J., joins in this opinion.