Commonwealth v. Deren

337 A.2d 600, 233 Pa. Super. 373, 1975 Pa. Super. LEXIS 1466

• Court: Superior Court of Pennsylvania
• Decided: March 31, 1975
• Docket: Appeal, 1628
• Status: Published

Opinions

Opinion by

Price, J.,

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 of suppression will not result in a termination or conclusion of the prosecution, it will result in a prosecution wherein the Commonwealth is substantially handicapped because it cannot present all its available evidence. In the first situation, the element of finality inherent in the order of suppression is apparent and sufficient to render the order appealahle. In the second situation, although the element of finality in -the order is not so apparent, it is nevertheless present. Without a right of appeal in the Commonwealth in the second situation, the Commonwealth is completely deprived of any opportunity to secure an appellate court evaluation of the validity of the order of suppression which forces the Commonwealth to trial without all of its evidence. The evidence suppressed may well mark the difference between success and failure in the prosecution; to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Commonwealth and the interests of society which it represents. In our zeal to protect and preserve for the accused every constitutional right to which he is entitled we too often forget and neglect to preserve the rights of society which, too, are entitled to consideration. An appellate review of the validity of the order of suppression cannot harm the defendant whereas the denial of the right to such review does harm the Commonwealth. In both factual situations the practical effects of an order granting the suppression of evidence give to the order such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth in both situations.” 411 Pa. at 63-64, 190 A.2d at 308.

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 directs an appeal from the suppression of evidence, we must accept such an appeal as the Commonwealth’s good faith certification that the case will be terminated or substantially prejudiced by such an order, and determine only if the suppression was proper.

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: “[sjince 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 its memorandum opinion, the lower court concluded the search warrant was improperly issued because the magistrate lacked probable cause, and because the warrant did not limit with sufficient particularity the amount of property to be seized. This determination is at odds with the facts.

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 sivorn 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 Dut-ton, 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 unparticular-ized and of no probative value, thus not supporting probable cause. This flies in the face of the eyewitness identification of appellee, which established probable cause.

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 common-sense interpretation of the affidavit, free from nit picking.

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 ap-pellee’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 considérations 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 report, indicating that a hair specimen was found on the victim’s clothing, was received. At that time, appellee was a patient in a mental hospital, and the District Attorney and the police deemed it advisable to wait until appellee was discharged to take the sample. The search warrant was sworn out just prior to the August 17th preliminary hearing and was executed immediately after the hearing, while appellee was represented by his attorney. Appellee now raises the question of timely probable cause to support the search and seizure.

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 ap-pellee 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.

1 . It is well settled that in a criminal case the Commonwealth may appeal adverse rulings only where the question is purely one of law. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961). That requirement is satisfied in the present case.

2 . This procedure has since been changed by Pa. R. Crim. P. 2003(a) which states: “[n]o search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.”

3 . An examination of all the facts indicates that the investigating' officers did not find the hair specimen at the scene of the crime. They were only made aware of the hair after the victim’s clothes had been sent to the Federal Bureau of Investigation’s lab, and the report was received some months later. However, even if we assume that the incomplete facts given on the affidavit may have been slightly misleading, the affidavit still indicates probable cause for the magistrate to issue the warrant.

4 . United States v. Allen, 337 F. Supp. 1041 (E.D. Pa. 1972).

5 . United States v. D’Amico, 408 F.2d 331 (2d Cir. 1969).

6 . See also United States v. Cox, 428 F.2d 683 (7th Cir. 1970); Commonwealth v. Neal, 34 D. & C. 2d 365 (1964).

7 . The same result would occur where the police, sometime after the arrest, secure a defendant’s fingerprints or take a blood sample for comparison with evidence found at the scene of the crime. In fact, the record indicates that appellee’s finger and palm prints were taken at the same time the hair sample was taken to compare with palm prints and fingerprints found at the scene.