*1 the Appel- was exerted upon influence that undue evidence do we nor agreement, into the her to enter compel lant or the of the Appellee, of conduct find that the evidence or inequita- unconscionable itself, suggests option agreement no abuse of discretion we find Further ble circumstances. testimony acceptance in its the lower court that the pur- which established witness Appellee’s expert circumstances, all reasonable. Under chase price on a of the minds meeting was a that there it clear unconscionable, and that be deemed contract which cannot agree- for the option the Appellee given by the consideration was adequate. ment did not argues Appellee next
The Appellant terms, and to its according the option agreement exercise it, thereby automati rejected to have thus must be deemed contention out We reject terminating option. cally the evidence showed court found of hand. The lower Our Appellee. agreement by of the option exercise proper conclusion that leads the evidence also own review of the terms was within acceptance conduct and Appellee’s There option agreement. intended specified final claim of error. fore, reject we Appellant’s Affirmed. in the result.
SPAETH, J., concurs Pennsylvania COMMONWEALTH POTEETE, Appellant. Lee David Pennsylvania. Superior Court 29, 1979. June Submitted 18, 1980. Filed Jan. *2 Defender, Lancaster, for Public Thomas G. Klingensmith, appellant. Lan- Attorney, District Assistant Madenspacher, C.
Joseph caster, Commonwealth, appellee. for JJ. CATANIA,* HESTER, HOFFMAN and
Before *3 HOFFMAN, Judge: is (1) that: the evidence insufficient contends
Appellant the warrantless (2) and receiving stolen property, prove the used unlawful because of his home was search search of We that the gain agree entrance. deception and, reverse accordingly, home was unlawful a new trial.1 of sentence and remand for judgment Alsena Kirschner a home owned April, Twice in loss of many pieces Kirschner suffered was burgled. furniture, appliances, lamps, room dining room and living On January and dishes. glassware clothing, bedding, the Pennsylvania State Joseph Westcott Trooper with Donna Riehl speak home to Police visited appellant’s Westcott was investi- Poteete, with whom lived. appellant Donna Riehl in which he believed a retail theft gating Judge Court of Common J. the * President FRANCIS CATANIA designation. Pennsylvania, sitting by County, Pleas of Delaware photographs (1) Appellant of the also introduction contends that itself, property property, denied without introduction of the stolen permit- charge improperly (2) process, of the court him and due goods he jurors stolen to infer from his ted goods disposition of of our knew were stolen. Because that the appeal, do consider these issues. we in Poteete have been involved. While may apartment, Later, Westcott noticed the furniture. when reviewing home, of Kirschner’s Westcott re- burglaries report called that some of the furniture in home resem- from Westcott then began bled items taken Kirschner. whether was involved in those investigate appellant burgla- ries. other He directed officers and examined inquiries of other to determine if the furniture in reports burglaries been stolen from could have other appellant’s apartment homeowners. Westcott from Kirschner detailed fo- of her stolen descriptions property. Subsequently, cused his on the of her home. On investigation burglaries 4, 1977, Westcott went to the apartment complex February in which and lived and confirmed that appellant appellant Donna Riehl Poteete were the tenants of the which he had seen the furniture. 7, 1977,
On Westcott returned to the Poteetes’ February residence, armed with Kirschner’s of the stolen description furniture, with which' he the furniture planned compare Westcott met at the appellant’s apartment. door and told him that he wished to discuss a theft of appellant’s car that had occurred some time before. Appel- enter, lant Westcott to and Westcott asked a few questions about the car theft. Westcott then observed the furniture, that the items fit noting Kirschner’s description. Kirschner’s, Concluding furniture Westcott informed suspect that he was burglaries, warned him of his Miranda rights requested permission *4 to examine the furniture more When closely. appellant left, refused a permission, Westcott obtained search warrant and returned two about hours later to execute it. Appellant was not home. Westcott and other officers entered with a examined the passkey supplied by apartment manager, furniture and called Kirschner. her that had told They they located her furniture and her to come to appel- instructed lant’s to take the furniture and other items stolen from her. Kirschner arrived and all the began removing items, them off in a truck. The took carrying photo-
494 included most but removed, which of all the property
graphs of the two during burglaries stolen not all of the items 1976, appellant learned that July, Police later April, 1976. closet stolen from room china expensive dining had sold an $40.00, that, in Septem- Kirschner, for which he received Kirschner. ber, 1976, also stolen from he sold a buffet the stolen trial, At did not introduce the Commonwealth taken enter the evidence, photographs into but did property Kirschner photographs, the search. From these of day from her and discover- stolen property identified at trial apartment. ed in appellant’s and Donna 13, 1977, appellant convicted jury
On
a
July
denying
After
receiving
property.
Riehl Poteete of
stolen
to a
motions,
court sentenced appellant
the trial
post-verdict
a
of
months and
fine
of
of 5 to 12
term
imprisonment
followed.
appeal
and costs.
$100.00
insufficient
the evidence is
argues
Appellant
knew that the
was
property
it does not show that he
because
much of the
home
stolen. Police discovered in
of the
possession
Kirschner. Although
stolen from
property
theft,
knowledge
could not prove
alone
property
the verdict. See
were sufficient
justify
circumstances
357,
Williams,
(1976)
244
362 A.2d
Commonwealth v.
Pa.Super.
Phillips,
(plurality opinion);
First,
possession
(1978).
Appellant argues fruits of an in his home should have been as the suppressed decep search without warrant because Westcott used illegal At suppres tion to obtain consent to enter the home.2 re sion Westcott testified that he had hearing, recently new the theft of car appellant’s ceived information about 7 to ánd that he went home appellant’s February discuss the theft. He also admitted that wanted another view house. When he met appellant of the furniture door, however, at the Westcott announced his desire to only the car theft. After a few speak asking questions about theft, about the Westcott observed the furniture and decided on his it had been stolen from Kirschner. Based home, observation the officer obtained a search warrant. that Westcott’s argues The basis legitimate intention to discuss the car theft provided Although the Commonwealth did not introduce into evidence items, photographs seized it entered of the evidence and informed jurors had discovered the evidence in Thus, propriety of the search home. this case is not one which the is moot because the evidence seized is not used at trial. See Com- Biebighauser, (1973). monwealth v. to the entrance, consented validly that for his *6 Westcott, could lawfully, once inside and that entrance observe the items. observa- of Westcott’s
The
that the
agree
legality
parties
therefore,
the
and,
legality
the
tion of the furniture
search,
appel-
whether
resulting
depend upon
warrant and
court,
The suppression
a
consent to entry.
lant made valid
record,
Westcott had a lawful
the
found that
supported
is, to
home,
investigate
that
in
going
purpose
court,
again supported
car. The
the theft
his
had focused
atten-
record, found also that Westcott
the
of Kir-
burglaries
involvement
the
upon appellant’s
tion
had
to appellant’s
schner’s home and
gone
Westcott,
is whether
question
the furniture. The
examine
his
the
purpose
second
to inform
failing
We hold
consent.
visit,
voluntary
and
knowing
was not valid.
that the consent
and
officers to use ruses
have permitted police
Courts
which
investigate crimes
of their identities to
concealment
without such
investigated
techniques,
cannot be effectively
racketeering
and
vice,
narcotics
liquor,
such as violations
States,
293, 87
385 U.S.
S.Ct.
laws.
Hoffa v. United
Weimer,
Pa.
v.
(1966);
Here, was an pur who identified himself and announced official had visit. The officer concealed the full nature pose for his indicating his withheld the information that appel visit and West Although lant of criminal conduct. suspected itself, his cott’s for was true entry reason purported visit if he just omission the nature of his as misrepresented had a Whether Westcott intended fabricated purpose. irrelevant, for consent turns not on the deceive appellant citizen. state of mind of the officer but See United Molt, Indeed, Westcott’s omission supra. presents States v. those stronger misrepresentation case of than perhaps Molt. Westcott had previously Goon Wright, Ong Sing same visited Donna Riehl Poteete at discuss and had met previously appel an unrelated matter car. At all such lant discuss theft of times, and without honestly Westcott acted apparently *8 home on In Westcott to enter the deception. permitting well been 7, relying have February appellant may him and Riehl trust Westcott had established with Donna entrance gain Poteete. The officer trust exploited the home. or vice, racketeering any case is one of which, need inves- nature,
other often police crimes their by v. Commonwealth tigate deceptions. ruses and See in which Weimer, Nor this case one supra. who, individual con- his confidence in an mistakenly placed fact, agencies. unconnected to See trary appeared police states, Hoffa defendant’s (informer gained v. United supra
499 misrepre- an officer Rather, is one in which it confidence). In home. to a entrance gain in order to his purpose sented ren- case, misrepresentation of this the circumstances consent. involuntary dered not add any does deception use of such the police Denying Rather, crimes. investigating to their task extra burden con- authorize would such deception to allow use of West- why is no reason There impermissible. duct otherwise anoth- in investigating engaged he was cott, because simply have been should concerning appellant, er, unrelated matter involvement into appellant’s investigation conduct an able to him. denied means otherwise in the burglaries by consent was invalid means of appellant’s Only by in appellant’s furniture Westcott able to verify view of the Thus, his Kirschner. was stolen from on the warrant obtained search was illegal, evidence and the Commonwealth illegal was basis of this observation at trial.3 use the evidence should not have been 543, A.2d 383 Shaw, 476 Pa. v. generally See on illegal when seizure based (evidence 496 (1978) suppressed have influenced could easily of the evidence conduct). Use error. not harmless See and, therefore, was the verdict (1977).4 A.2d 155 383 v. Story, for a case remanded vacated and of sentence Judgment new trial. statement. J., dissenting files a
HESTER,
indicating
course,
such as that
evidence
Of
burglaries and
goods
months of the
within two
of stolen
if
unusually
prices
our decision
low
is unaffected
them for
sold
appellant’s home.
independently
of the search
using
execute a
considering
propriety
ruses to
cases
4. For
Pa.Super.
warrant,
Regan,
386
search
see Commonwealth
(1978).
A.2d
doctrine,
“plain view”
not involve the
note that this case does
We
inadvertently
evidence
only
discover
when officers
which arises
See Commonwealth
unknown to them.
whose existence was
(1975).
Kaschik,
Because Westcott
Pa.Super.
344 A.2d
viewing
express purpose
for the
went
furniture,
home
United States v.
was not inadvertent.
his observation
1977).
(2d
Berenguer,
INTERNATIONAL INC. SYSTEMS, INC., Appellant. DATA PERSONNEL Pennsylvania. Superior Court June 1979. Argued Filed Jan.