Commonwealth v. Heard

301 A.2d 870, 451 Pa. 125, 1973 Pa. LEXIS 515

• Court: Supreme Court of Pennsylvania
• Decided: March 16, 1973
• Docket: Appeal, 188
• Status: Published

Opinions

Opinion by

Mr. Justice Manderino,

The appellant, Earl Heard, in 1956 was convicted by a jury of aggravated robbery and aggravated assault and battery (No. 226 and No. 227). Immediately thereafter, the appellant pleaded guilty to separate counts of aggravated robbery and aggravated assault and battery (No. 228 and No. 229). The charges to which the appellant pleaded guilty involved a separate and distinct episode from that for which the appellant was tried and found guilty by a jury. Appellant received concurrent terms of five to ten years on the two counts of aggravated robbery. Sentence was suspended on the two counts of aggravated assault and battery. No appeal was taken from these judgments.

In 1969, appellant sought PCHA relief claiming that he had been denied his appeal rights. The petition also raised other substantive issues. Appellant established that he was entitled to a direct appeal and the trial court therefore considered his PCHA petition as constituting post-trial motions, but denied relief on the substantive claims raised in the post-trial motions. We thus have before us appellant’s direct appeal.

One of the issues raised by the appellant is a claim that evidence introduced during his jury trial (No. 226 and No. 227) was obtained unconstitutionally in that the evidence was the fruit of an illegal search of his automobile. If the appellant is correct there was a violation of his rights under Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). Such a violation would entitle the appellant to relief on direct appeal. Commonwealth v. Linde, 448 Pa. 230, 293 A. 2d 62 (1972).

On the day of appellant’s arrest, the police received information from the victim that her purse had been snatched and she saw the man who took it get into an automobile and drive away. The police were given a description of the automobile and the license plate number. A check of the records indicated that the automobile was registered in the name of the appellant. The police then obtained an arrest warrant for the appellant. They did not obtain a search warrant for either the appellant’s house or his automobile even though they had the opportunity to do so when the arrest warrant was secured.

The police then proceeded to the appellant’s home, arrested appellant and took him to the station. After appellant’s arrest and his transfer to the station, officers returned, without warrants, and conducted a search of appellant’s home. No evidence was discovered. The officers then proceeded to search the appellant’s automobile which was parked outside the home. No warrant was obtained for either of these searches. In the automobile the police found two watchbands and a pen which were among the items which the victim had reported missing. These items were important and crucial in the prosecution’s case.

This Court has stated that “. . . it is very clear that only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a warrantless search.” Commonwealth v. Shaffer, 447 Pa. 91, 288 A. 2d 727 (1972). Recently, in Linde, supra, a case strikingly similar to the present one, we said, concerning the search of an automobile which was independent of the defendant’s arrest, that a dual inquiry must be made. First, whether there existed probable cause to search and second, whether exigent circumstances can be found to excuse the obtaining of a warrant.

In this case, the second requirement was clearly missing. At the time of the search there were no exigent circumstances justifying the failure to obtain a warrant. Indeed, the police had sufficient time to obtain a search warrant because they did in fact obtain an arrest warrant. Their failure to obtain a search warrant prohibited a use of the seized evidence.

The holding of Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970), is not applicable. As we said in Linde, supra, “Chambers concerned the stopping of a moving vehicle for which the police had probable cause both to search and to arrest the occupants on the spot. . . .” In Chambers the warrantless search ivas justified because the police had the authority to search the vehicle which was moving.

The search in this case cannot be considered as one incident to a lawful arrest. Appellant was not in his automobile when he was arrested. A search incident to a valid arrest must be in the immediate vicinity of the arrest. Linde, supra.

The use of the evidence seized in the warrantless search was constitutional error and therefore the judgments at No. 226 and No. 227 are reversed and a new trial ordered.

Appellant also claims that the guilty pleas entered at No. 228 and No. 229 are invalid. These guilty pleas were motivated, according to the appellant, by the guilty verdicts at No. 226 and No. 227. This is clear from the record, the appellant claims, because the pleas were accepted to clear the docket even though appellant stated that he was innocent of the charges at No. 228 and No. 229. This question, however, was not fully considered by the trial court and we are unable to make a final determination on the record before us. The matter must be remanded and the appellant given an opportunity to file post-trial motions at No. 228 and No. 229. Since the appellant was previously denied his right to file post-trial motions, any other matter may also be raised if post-trial motions are filed.

Judgments at No. 226 and No. 277 are reversed and a new trial ordered. At No. 228 and No. 229 the matter is remanded for further proceedings in accordance with this opinion.