*2 WATKINS, Before JACOBS, President Judge, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
CERCONE, Judge: non-jury after a trial of involun- was convicted
Appellant intercourse,1 assault,2 recklessly sexual indecent deviate tary threats,4 and posses- another terroristic endangering person,3 of an instrument of crime This generally.5 sion direct motions and post-trial followed denial appeal sentence. imposition contends that a from his
Appellant gun retrieved and seizure of an unlawful search was the result apartment have admitted into evidence and, therefore, been should as relevant to this issue are follows. trial.6 The events climbing stairs April complainant On upon appellant, floor whеn she came apartment her fourth complainant superintendent. apartment building sink her bathroom. repair appellant requested at complainant’s apart arrived thereafter, appellant Shortly *3 the bath leaving As he was and examined the sink. ment the who arms around complainant, his room appellant placed to When entered stop. they asked him objected and ad apartment, appellant’s room of living complainant’s was threatening. When this conduct vances more grew head gun placed complainant’s rejected, appellant apartment him his accompany to basemеnt and her to forced com forced building. gun appellant At point, in the same him before her upon permitting to fellatio plainant perform Code, 1, 6, 1972, 1482, 334, No. 1. The Crimes Act of December P.L. § 18 Pa.C.S. 3123. § Code, supra, 3126. 2. The Crimes 18 Pa.C.S. § Code, supra, 2705. § 18 Pa.C.S. 3. The Crimes Code, supra, 2706. 4. The 18 Pa.C.S. § Crimes Code, supra, 5. The Pa.C.S. 907. § Crimes 18 permit argues (1) Appellant to the Common- it error also regarding the date of the wealth to Information amend Bills of trial; complainant’s testimony (2) offenses at the outset of credibility was impaired by prior that her so inconsistent statements fatally destroyed; (3) to establish failed and the Commonwealth custody gun. have examined chain of of the We aforementioned and merit. these contentions find them devoid of
541 her apartment returned to complainant to leave. After herself, police reported she contacted the and composed the incident.7 after the complainant reported two hours
Approximately
detectives,
to the police,
the incident
a statement
gave
to arrest
apartment
warrant,
appellant’s
without a
went to
loud music coming
could hear
him.
the detectives
Although
no one
to their
apartment,
responded
from inside appellant’s
on the door. Accordingly they
knocks
announcements or
in search of
apartment
entered the
forced the door
open
who
appellant,
search for
appellant.
course of their
the detectives observed a
premises,
not to be on the
proved
view on
bed.8
plain
appellant’s
pistol
starter
It
lying
contends
sup-
should have been
appellant
which
gun
of an unlawful search and seizure.
pressed as the fruit
that a
officer is authorized
“It is well
established
he has
cause
arrest without a warrant where
believe
been committed and that
that a
has
felony
States,
v. United
person
Draper
to be arrested is
felon.
329, L.Ed.2d 327
307, 311,
(1959);
358
3
Com
U.S.
56, 66,
304,
190 A.2d
310
monwealth
411 Pa.
Bosurgi,
v.
Jackson,
113, 117,
450
Pa.
299
(1963).” Commonwealth
213,
States,
132,
A.2d
Carrоll v. United
267
(1973);
U.S.
280,
(1925);
Indeed, Rule of the Rules of Criminal 101(3) Pennsylvania empowers Procedure law enforcement officials specifically arrests where there is probable effectuate warrantless suspect cause believe the has committed a felony. See ALI, Pre-arraignment Procedure, also A Model Code *4 posed by appeal, however, 120.1 The question § is under the enter police what circumstances private premises to warrantless arrest of a felon. suspected make a 7. The following day, appellant apartment outside the victim’s stood reported had the incident. door and threatened her because she 10, 1976, April eventually apprehended Appellant when a 8. on was complainant’s appel- responding that uniformed alert officer— building attempted lant was in he to climb out the him as —arrested of a second floor window. 542 cause, to probable
More whether addition specifically, exigent with circumstanc- must confronted the also be police a home to effect a suspect’s es can enter they before warrantless arrest? Watson, 411, 423 U.S. 96 46 v. S.Ct. United States Santana, 427 U.S. (1976) 598 and United States
L.Ed.2d 300 Court (1976) Supreme L.Ed.2d the S.Ct. does the the Amendment not bar concluded Fourth in a public place arrest from a warrantless making Court, hоwever, spe- cause. provided probable there is The on of whether and judgment question reserved cifically suspect’s enter a police may what circumstances under to effect warrantless arrest. States a dwelling 418, n. 6, 96 S.Ct. Neverthe- Watson, at supra, U.S. less, issues, between a brief similarity in view of the order. review of Watson and Santana A of the Watson stated that the tradi- Court plurality involving the legality tional in cases warrantless inquiry was a there warrant or arrests has been “not whether one, but whether there get whether there time 417, 96 at 824. cause for the arrest.” Id. at S.Ct. probable Term, while further last “[j]ust Court observed protection rights individual that maximum rеcognizing a review of by requiring magistrate’s could be assured arrest, we stated that ‘such any factual justification prior for intolerable handicap an would constitute requirement ‘has and noted that Court legitimate law enforcement’ cause supported by probable never invalidated an arrest ” failed Id. to secure warrant.’ solely because the officers Pugh, Gerstein v. 417-418, (quoting at 825 854, 43 Mr. (1975)). L.Ed.2d 54 103, 113, 95 U.S. S.Ct. White, then reviewed writing plurality, Justice arrest doctrine and noted felony of the origins historical both common law and of state statutes majority arrests felony probable on cause. permit solely warrantless wrote: Justice White further law in generally “The balance the common struck cause, without on but arrests authorizing felony *5 warrant, a has survived It appears intact. substantially express statutory in the form of almost all of the States 1963, the American Law Institute un- authorization. In a formulating governing dertook of model statute the task practice criminal law enforcement police powers procedure. aspects pretrial related after Code of discussion, Pre-arraignment A Model years its Among provisions Procedure proposed. a person officer take into an 120.1 which authorizes
§ to believe that if cause the officer has reasonable custody has сommitted a or has felony, arrested person to be or misdemeanor in his petty committed a misdemeanor The to this section ‘The presence.11 commentary said: almost universal adopts Code thus traditional a warrant.’12 without standard for arrest provides, pertinent part: Section 120.1 of the Model Code ‘(1) Authority to Arrest Without a Warrant. A law enforcement person officer reasonable cause to believe that such arrest a without a warrant if has the officer person has committed (a) felony; a (b) misdemeanor, a has reasonable cause to believe and the officer person
that such (i) arrested; apprehended immediately will not be unless or (ii) may injury damage property cause to himself or others or arrested; immediately unless or presence.’ (c) petty in the officer’s a misdemeanor or misdemeanor 12Id., (footnote omitted). commentary say goes at 289 on to respect with 120.1: § require This Section does not officer an to arrest under a warrant opportunity if even a reasonable obtain a warrant exists. As to entirely requirement arrests would be novel. on the street such a urgent, subsequent inquiry and the Moreover the need for isit requirement such a would authorize would be indeterminate and Id., (footnotes omitted). difficult. at 303 commеntary notes, id., As the statute in the State of at 289 n. Georgia general is more power restrictive of the arrest than 27-207(a) standard. (Supp,1975). Ga.Code Ann. See § also Colo. (1973), provides Rev.Stat.Ann. 16-3-102 § which that an arrest practicable,’ warrant should be obtained ‘when and Mont.Rev.Codes 95-608(d) (1969) Ann. § which authorizes a warrantless arrest if ‘existing require’ statute, circumstances it. A North Carolina N.C. (1965), statute, Georgia Gen.Stat. 15-41 § similar to the was re- placed by provision felony permitting in 1975 arrests warrantless 15A-401(b)(2) (1975).” on cause. N.C.Gen.Stat. § 421-22, 423 U.S. at Watson, supra, States v. Court in Watson then held A
at 827. majority *6 cause, in a be arrested person may provided there is probable first a failure to obtain warrant. thе notwithstanding public to Watson was confined sure, To be in holding the Court’s address the explicitly and did not warrantless arrests public Nonetheless, it would appear here reviewed. question in is Watson employed equally the and rationale analysis instant case the same conclu- compels applicable Marshall, who dissented vigorously Indeed, sion. Mr. Justice Watson, observe: in was constrained the answers question but raised in “First the all opinion 480-481, 91 [443], 403 U.S. at Coolidge v. New Hampshire, namely, at L.Ed.2d . . [2022], S. Ct. 2045 . 564] [29 circumstances an officer ‘whether and under what a to make warrantless arrest.’ enter a home suspect’s . Brothers Admittedly, my . . Pugh, Gerstein v. . opinion do not reаd the POWELL STEWART indeed, leave the Court purports resolve issue and the at 825. But Ante, it at n. S.Ct. open, 418 [96 820] here—reliance on the common of utilized mode analysis provides ready law and federal and state statutes — its extended discus answer, by hints as indeed the Court Pre-arraignment of sion of 120.6of the ALI Model Code § Ante, at commentary. 418 n. its relevant Procedure . of approach . . Unless the S.Ct. [96 820] it fundamentally rejected, will be opinion is be difficult, any to follow these sources to impossible, if not to effect a warrantless entry one conclusion—that but arrest permissible.” 453-54, (Mar- 842 Watson, supra,
United States shall, J., dissenting). Santana, had proba-
In United supra, policе States v. defendant, in standing who ble cause to believe possession her narcotics. dwelling, doorway themselves, and identified When the approached police her she into vestibule of residence where defendant fled a warrant. the warrant- approving was arrested without Court, writing with Mr. Justice Rehnquist, less arrest court, “that a suspect may concluded defeat an in public in motion place, arrest which has been set and is under Watson expedient of escaping therefore proper Santana, United States to a private place.” supra, Thus the permitted U.S. at at 2410. Court S.Ct. effecting to enter for the police private premises purpose attempt a warrantless arrest since the to arrest was begun in a area. supposed public White, Justice who authored the
Additionally, plurality Santana, Watson, opinion concurring opinion filed a 2406, in 43-44, expressed S.Ct. which he the view supra at cause to arrest and to that since the had residence, they believe that was in her could enter Santana arrest provided to effect a warrantless force premises *7 was not to their “This has necessary accomplish entry. been rule in judicial or longstanding statutory of majority ALI, States, see A Model of jurisdictions in the Code United 306-314, (1975), Procedure 696-697 and hаs Pre-arraignment constitutions, been deemed consistent with state as well as the Fourth It is also the Institute’s recom- Amendment. Santana, Id. 120.6.” States mended rule. supra § (White, J., at The ALI concurring). S.Ct. at rule appear provide which Justice White to would to refers the tension that necessarily accommodation adequate right and the privacy exists between the individual’s promoting effective law en- Commonwealth’s interest Code, forcement 120.6 the Model procedures. Section 19-20, addresses the issue at bar and supra, specifically states: Arrest: Private Place of Premises
“Section 120.6 (1) Demand to Enter onto Private Premises to Entry Make an Arrest. lаw enforcement If a officer has reason- able cause to believe that a whom he is authorized person to arrest is on he present any premises, may, upon private officer, an demand he be himself as such identifying admitted to for the purpose making such premises complied with, arrest. If not promptly such demand is make the enter premises such thereupon officer subject necessary, reasonably as is force arrest, such using the use of regarding 120.7 of Section provisions force. deadly The demand to be Demand.
(2) Without Prior Entry made, (1), need be if required admitted Subsection to believe that a person cause officer reasonable has or misde- felony arrest for a whom he is authorized if and that such premises, on such meanor is present made, were demand or escape; would
(a) the to be arrested person effecting to harm subject be the officer would (b) arrest; or harmed, destroyed, or evidence would be
(c) any person or lost. damaged or property No law Night. Arrests at (3) Restrictions on Special any private prem- to enter seek enforcement officer shall between 10 m. and a. p. an arrest ises in order to make m. unless warrant arrest and the
(a) he is under a acting hours, during execution such or warrant authorizеs its that such action is cause to believe (b) he has reasonable necessary prevent of a for a crime
(i) escape person to be arrested harm or the threat bodily danger or serious involving thereof, or evidence, destruction of or
(ii) harm to any person, *8 property.” to or loss of damage only common law rule 120.6 the traditional Section modifies limitations on nocturnal special of imposing to the extent view, on these limitations arrests in In our the home. requirement with nighttime coupled arrests circumstances, first announce their police, exigent absent a com- provides demand admittance and identity, purpose, in protecting interest society’s mendable balance between right to freedom from unreasonable itself and the citizen’s require “To further and go intrusions. governmental the police may before showing necessity warrant or a
547
make a
property
daytime
on
even
felony
private
arrest
Moreover,
from
apart
seems
restrictive.
unduly
special-
alarming
nighttime
entries and
from
ly
quality
apart
considerations,
search
is far from
it
clear that an arrest
one’s
threatening
home is so much more
or
than
humiliating
a street
further
arrest
restrictions on the
justify
police.”
ALI,
Procedure,
120.6,
A Model
of Pre-arraignment
Code
§
(1975).
at 307
supra, Commentary
Indеed, were we free to do so this Court would
120.6 of the
judicially adopt Section
Model Code
it
apply
choice, however,
the instant case. That
is no longer ours.9
While the
appeal
instant
pending
Supreme Court of
Pennsylvania
down its
decision in Commonwealth v.
handed
Williams,
293,
483 Pa.
In Williams
“First,
involved,
that a
offense is
grave
one
particularly
is a
e. Warden v.
See,
crime of violence.
Hayden
g.,
294,
1642,
U.S.
87
18
L.Ed.2d 782 (1967)]; Mc
S.Ct.
[387
Donald v.
States,
United
451,
459,
U.S.
69
191,
335
S.Ct.
93
L.Ed. 153 (1948) (concurring
opinion
Jackson).
Justice
Parenthetically,
13, 1978,
we observe that on December
the Su
preme
probable jurisdiction
Court of the United States noted
in the
People
Payton
People
York, - U.S. -,
cases of
v. New
Riddick,
Payton
S.Ct.
58 L.Ed.2d -.
45 N.Y.2d
(1978),
Appeals
N.Y.S.2d
“Second, süspect and obviously in arrest of an Delay armed. to be believed reasonably the community danger armed felon well increase may This at time of arrest. meanwhile, or to the officers for a materially justification on the consideration bears warrantless entry.
“Third, there exists minimum merely has warrant cause, even when a requisite that is probable a clear issued, showing been but beyond information,’ to cause, ‘reasonably trustworthy including the crime committed involved. believe that the suspect that the suspect is in the “Fourth, reason to believe strong entered. premises being if not suspect escape will
“Fifth, a likelihood that apprehended. swiftly not con-
“Sixth, entry, though the circumstances that the Forcible in some entry may sented, is peaceably. made But fact that the entry be justified. instances atti- showing reasonableness not forcible aids their mis- police, identifying tude and conduct. to surrender himself sion, an give opportunity the person avoid the invasion of thus without a struggle home. into the entry involved privacy account, it wоrks though “Another factor to be taken into to time of direction, entry— relates in more than one hand, as we shall the one On at night. whether it is made underscore may (and hour the delay the late develop, later of) warrant, obtaining perhaps impracticability without one. On justify proceeding hence serve to raises night an is made at hand, entry other the fact reasonableness, indicated in its as concern over particular v. United States in Jones opinion Justice Harlan’s [357 (1958)], L.Ed.2d 1253, 2 U.S. *10 the degree elevate cause both as required, the and as that he is in the implicating suspect, showing omitted.)” place (Footnotes entered. Williams,
Commonwealth
297,
v.
First, it cannot be
that
gainsaid
appellant
charged
was
Second,
with a
serious offense.
particularly
offense was
at
two
gunpoint only
committed
hours
prior
attempt-
ed arrest and thus the police had
reason
good
to believe
Cf.,
Williams,
suspect
still armed.
Commonwealth v.
Third,
supra.
given
victim’s
prompt report
descrip-
tion of the incident to the police, there was unquestionably
probable cause to
appellant
believe that
was the felon.
Fourth, in view of the
emanating
loud music
from appel-
lant’s
the offense
apartment and the fact that
had allegedly
occurred in the same apartment
earlier,
two hours
there was
suspect
reason to
is in
“strong
believe
the premises
entered.” Dorman v.
being
States,
140 U.S.
supra,
320,
Fifth,
App.D.C. at
550 for admission. Al- any
ceived to their demаnd response the officers failed ex- discloses though record we believe prior entry, their purpose announce pressly of any the absence re- justifiable given this omission and declarations of identity. to their knocks sponse repeated Marshall, People Cal.Rptr. v. Cal.2d See in mid-af- place the intrusion took (1968). Lastly, P.2d ternoon. circumstances, as exigent we defined
Thus conclude States, supra, applied in Common- Dorman United Williams, present were in the case at bar supra, wealth attempt and it was therefore proper Ac- apartment without a warrant. his appellant arrest *11 view on pistol plain whiсh in the starter’s cordingly, and admitted subject properly to seizure appellant’s bed into evidence. affirmed. of sentence
Judgments SPAETH, opinion. J., dissenting files and WATKINS, Judges, former President JACOBS and the ation or HOFFMAN, in consider J., participate did of decision this case.
SPAETH, dissenting: Judge, new I reverse and remand for a trial. believe we should -1- A.2d 1177 Williams, Pa. In Commonwealth the adopted reasoning the and (1978), Court cited Supreme District of the of Appeal of decisions the Courts Fourth, Circuits, which Columbia, Second, Sixth Amendment the that Fourth held because the home, an one’s arrest of privacy substantial expectation in his home arrest someone validly warrant is required wаrrant- exist to justify exigent unless circumstances at 1179. 297, 396 A.2d Pa. less intrusion. 483 decide, therefore, we must is first whether in question were shown to case circumstances” present “exigent exist.1 question answering
I
with the
agree
majority
in Williams con-
Supreme
we should
Court
consider—as
Dorman v.
sidered—the six factors enumerated in
United
States,
The six factors
be summarized as follows:
may
involved;
is
(2)
suspect
er
whether the
grave
offense
armed;
clear,
(3)
be
whether there is
believed to
reasonably
minimum,
just sufficient,
or
or
merely
and not
strong,
suspect
believe
committed the
cause to
offense; (4)
there is
reason to believe that
strong
whether
entered;
(5)
is in the
whether
suspect
premises being
will
if not
suspect
escape
there is a likelihood that
of the
(6)
entry.
circumstances
apprehended;
swiftly
point
to bear
considering
important
these factors
to count to see how
simply
mind is that it is not enough
exist,
example,
that if
say,
them
and then
many
exist,
found,
four
be
but if
may
only
circumstances
exigent
exist,
two
not be found.
In-
circumstances
exigent
*12
fifth
stead,
that the
factor—the
it must be borne in mind
others,
the
or to
the
say
likelihood of escape—dominates
words,
same
in
that the
thing
appropriate weight
different
according
various factors will
assigned
vary
be
fifth factor.
the
weight assigned
beyond deciding
question,
goes
majority’s
The
discussion
Watson,
First,
interprets
respects.
majority
two
United States v.
820,
(1976),
holding
423 U.S.
that a
S.Ct.
If one applies considering present these prinсiples case, one will that entry conclude the warrantless readily was improper, into that accord- appellant’s apartment there, seized, saw ingly, the evidence the should police Nothing suggested have that appellant been suppressed. To escape. intended had contrary, immediate been that appellant told by complainant employed as his apartment building which superintendent The indication was that if the apartment plain was located. warrant, police obtained a would have they difficulty no finding arresting appellant. information supplied by ample the complainant of a basis for the issuance warrant, and as it was during day, obtain a warrant would not have much time.4 required 1, supra. 3. See footnote recognize I majority says that the that “there existed ‘a likelihood ” suspect swiftly apprehended.’ escape that if Ma- [would] jority however, slip opinion majority, any at 712. The fails to offer support statement, majority suggests for this believes which grave that the fact that a offense has been committed itself can support finding escape. there is a likelihood of If this is the belief, majority’s “possibility.” it confuses “likelihood” with No every possible doubt felon knows he It is be arrested. therefore try likely escape. hе he will It does not follow that it is indeed, try escape many will no we make know that felons —and homes, escape, effort but return to their and remain in their neighborhoods, police arrest until the them. *14 -2- starter should have pistol I have concluded
Since admission whether its I must consider been suppressed, lower In this regard, trial. a new evidence requires have been should pistol the starter that court also concluded conclude, however, that its admis- went it on suppressed; error. harmless sion in evidence was April as follows. On testified At the trial the complainant building stairs in her apartment 1, 1976, way up on her told She superintendent. building she saw appellant, sink, her bathroom with him problem she a having did, to fix it. Appellant apartment him to come to her asked her. sink, made advances toward looking but after these, gun a appellant produced rejected When she in the base- apartment him to his accompany forced her to sodomy, her at There, gun point perform ment. he forced went back to her to leave. She and then allowed her the inci- reported went outside and up, cleaned apartment, came to her door next day appellant dent to the The police. and threatened her. the use of was impeached complainant’s testimony day On the police.
her inconsistent statements prior to Detective Frank statement incident, gave of the she when she entered the she said: in which Margerum whom she assumed to appellant, saw she apartment building obtain a new him if he could she asked be the janitor; hers off box, ripped as someone had her mail plate name apart- come down to his should box; she her that he said did, that she plate; her a new name would get ment and he her, on her, held a gun grabbed and there appellant other There were various sodomy. commit forced her to and her complainant’s testimony inconsistencies between and also between her Margerum, statement to Deteсtive 10, on gave police April she testimony and statement occurred on 1 or April the incident whether including 5, 1976. April sowas testimony the complainant’s
Appellant argues trial statements that the her inconsistent impaired by prior of law her. as a matter should have disbelieved So judge concerned, however, the is not wheth- question far as we are disbelieved the complainant, should have judge er the trial her, whether, having believed we should judge say but answering question, we must he was bear wrong. judge of fact is the sole the credibility mind that the trier witness; will therefore not be dis- finding of a the trier’s on evidence so unreliable or contra- turbed unless it is based but say that we can it is the result not reason dictory 467 Pa. Farquharson, conjecture. Commonwealth 457 Pa. Smith, A.2d 545 Commonwealth (1976); A.2d 60 Here the trial “the essen- judge found that *15 tial testified point complainant credibily [sic] [is] offense, court as to the whatever date and differ- any to be material.” Lower ence as to date not here shown was acknowledge given court’s complain- at 4. I opinion ant’s two different versions of how the incident considerably began, judge’s problem restriction the inconsistency troubling. Nevertheless, one of is somewhat it merely dates is clear that as to the essential elements of the offenses threats, force or charged use of the sexual assaults —the found the credible. I judge complainant themselves—the cannot were so say prior that her inconsistent statements related these elements as to reduce closely essential However, judge’s finding conjecture. to a matter prior do show that the admission inconsistent statements was not harmless evidence of the starter error. The pistol case, crucial and the complainant’s credibility The assistant district rec- pistol attorney corroborated her. this, to the trial ognized for in his he summary judge argued: would up
If she make as the story, complainant] [the is, Defense we are left with attorney alleges, question how would she ever learn about the unless the gun gun used on her? actually N.T. at 102.
Thus the as evidence regarded pistol Commonwealth complainant’s that was to bolster the essential credibility, state- her inconsistent prior been by as she had impeached harmless, beyond must be harmless Error, to be ments. 391, 383 Story, 476 Pa. Commonwealth reasonable doubt. here.5 cannot be said That A.2d 155 reversed, and a new be should of sentence judgment trial ordered. A.2d 716 Pennsylvania
COMMONWEALTH BOUIE, Appellant. Herbert A. Pennsylvania. Superior Court of 20, 1978. March Submitted Decided March *16 unnecessary the chain whether to decide 5. This conclusion makes it insufficient, judge custody pistol the trial and whether n allowing amend the information at erred in the Commonwealth April rather than on time of trial to read that the offense occurred April