698 A.2d 85 | Pa. | 1997
This is an appeal from the judgment of sentence imposed following appellant’s convictions of manufacture and possession of a controlled substance.
Appellant was charged with the above crimes after Pittsburgh police officers received information from a confidential informant and a telephone complaint that marijuana was growing on the roof of the apartment building at 5738 Howe Street by an actor known as “Chris”. The telephone complaint further informed the officers that the roof could be reached either by using the fire escape or by confronting the residents of the top-floor apartment and requesting access to the roof. Acting on that information, the officers located the described apartment building, which had a street address of 5758 rather than 5738 as reported in the telephone complaint. Without first attempting to obtain a search warrant, Officer Hildebrand sealed the fire escape and climbed onto the roof. He observed a free-standing rooftop apartment situated in the center of the roof and walked its perimeter. Once he had taken two turns around the comers of the apartment, he noticed a bridgewalk connected to the roof of the adjacent building and a small garden partially enclosed by a wall
On appeal, appellant makes several arguments concerning the suppression court’s error in denying his motion to suppress the evidence seized, as well as his inculpatory statement. First, he argues the findings of fact and conclusions of law were unsupported by the record. Specifically, appellant asserts as error the suppression court’s finding that Officer Hildebrand’s investigation of the rooftop garden was constitutional because the fire escape that the officer used to scale the apartment building was open to the public and used on a daily basis by tenants of the adjacent apartment building in order to enter and exit their residence. Second, the search warrant was invalid because it contained tainted information obtained by the above-mentioned “warrantless search”. Third, the search warrant was unconstitutional under Article I, Section 1, and Section 8 of the Pennsylvania Constitution. Finally, the suppression court erred in fading to suppress the inculpatory statement of appellant as it directly resulted from the execution of an unconstitutional search warrant.
The standard and scope of our review of suppression Orders is well settled.
In reviewing a claimed error of the suppression court in denying a defendant’s motion to suppress, we will consider only the prosecution’s evidence and so much of the defendant’s evidence as remains uneon-tradieted. It is, however, exclusively in the province of the suppression court to determine the credibility of the witnesses and the weight to be accorded their testimony. See Commonwealth v. Brinkley, 423 Pa.Super. 289, 620 A.2d 1226 (1993); Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982).
Our task, therefore, is to determine whether the record supports the factual findings of the suppression court, and to determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987).
Commonwealth v. Robbins, 436 Pa.Super. 177, 182, 647 A.2d 555, 558 (1994).
In the instant case, we conclude the suppression court judge’s finding that the fire escape was used on a daily basis for ingress and egress is not supported by the record. Nevertheless, because Officer Hildebrand observed the marijuana plants from his position on the fire escape route of the apartment buildings, the legal conclusion that the evidence should not be suppressed was a reasonable one. That is, the officer did not stray from the path that the residents of appellant’s apartment or the adjacent building would have taken during an emergency. No Fourth Amendment protection is afforded appellant with respect to fire escapes and common hallways of an apartment building where he has no possessory interests. Commonwealth v. Boykin, 246 Pa.Super. 154, 157, 369 A.2d 857, 859 (1977) (“Nor may appellant claim Fourth Amendment protection for himself in respect to an area in which he has no possessory interest. The fire escape entrance used by the police was a door from the common hallway. While a tenant may have the right to use both hall and fire escape, neither is a part of the demised premises under his possession or control.”) (citations omitted). Assuming appellant had a subjective expectation of privacy in the rooftop area outside of his apartment, no
Judgment of sentence affirmed.
. 35 P.S. § 780-113(a)(30), (a)(16).