Commonwealth v. Tann

459 A.2d 322, 500 Pa. 593, 1983 Pa. LEXIS 504
CourtSupreme Court of Pennsylvania
DecidedApril 27, 1983
StatusPublished
Cited by53 cases

This text of 459 A.2d 322 (Commonwealth v. Tann) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Tann, 459 A.2d 322, 500 Pa. 593, 1983 Pa. LEXIS 504 (Pa. 1983).

Opinions

OPINION

LARSEN, Justice.

In the early morning hours of January 28, 1979, an angry racial confrontation developed between two groups of young males in the Beltzhoover section of the City of Pittsburgh. The charged incident quickly deteriorated into deadly violence as gunfire cracked in the cold snowy night1 and James Fink, one of the white youths involved, was shot and killed.2 The Appellant, Paul Tann, a young black man, was charged in the slaying.

[596]*596After a trial by jury, Tann was convicted of third degree murder, possession of an instrument of crime, and recklessly endangering another person. Post-trial motions were filed and denied and the appellant was sentenced to serve a term of imprisonment of ten to twenty years.3 A direct appeal to this Court followed.4

First, the appellant challenges the trial court’s denial of his motion to suppress a rifle and scope seized by the authorities at the time of his arrest. Tann argues that the rifle and scope were seized in violation of rights guaranteed him by the Fourth Amendment to the United States Constitution.5 In reviewing the suppression court’s ruling in this case we will limit our consideration to the evidence of the Commonwealth and the uncontradicted evidence of the appellant. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

The record establishes the following:

On January 29, 1979, armed with an arrest warrant and acting upon information received from one Joseph Patterson, another young man charged in the incident, Pittsburgh police officers went to a house on Climax Street. Patterson had described the approximate location of the dwelling as being located at a certain specific intersection on Climax Street. No address was supplied. In addition the police had [597]*597information that the fatal weapon was a 30 caliber rifle with a scope attached.

Upon arrival at the designated intersection, the officers first went to 99 Climax Street. A female who answered the door told the inquiring policemen that she did not know Tann and did not know of his whereabouts. After visiting three other houses at the intersection and the home of Tann’s parents a few blocks away without results, the officers called back to the Station House to re-check the location with Patterson. They were told to go to the first house they had visited. On their second visit to 99 Climax Street the officers were admitted to the premises by one of the occupants, Karen Timbers.6 After initially denying that the appellant was on the premises, Karen Timbers stated that Tann was present in the house and he had a gun. She directed the police officers to a first-floor bedroom situated right off the kitchen where she said he was hiding. The officers went to the doorway of the bedroom pointed out by Karen Timbers and ordered the appellant to exit. Following a period of silence of approximately 2 or 3 minutes, Tann came out with his hands raised. At this point the appellant was turned toward a wall and handcuffed. One of the arresting officers took two steps into the dark room from which Tann had just emerged and found, on the floor directly in his path of entry, a rolled-up rug with a rifle protruding from the left side. He also observed a scope resting on the floor a very short distance from the rifle.7 Both the rifle and scope were seized and tests established that the rifle was the one used to fire the bullet which killed James Fink.

By appropriate motion the appellant sought to suppress the introduction into evidence of the seized rifle and scope. The suppression court refused appellant’s motion and held [598]*598the items to be admissable8 citing Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) where the United States Supreme Court stated:

“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.”

Further, the lower court ruled that Tann “Did not have any expectation of privacy in the bedroom of a house he did not occupy.”9 We agree with both conclusions.

The police officers were voluntarily admitted into the house by Karen Timbers, one of the occupants, and they were directed to the specific room where the appellant was at the time. Once the appellant had made his delayed exit from the dark bedroom the officers had a right, for their own protection, to look into the room from whence he came.10 They had been informed by Karen Timbers that Tann was in possession of a gun.

The rifle and scope lay in plain view of the officer who looked into the bedroom by taking two steps across the threshold.11 The seizure of the rifle and scope was not the result of an unlawful search. See: Commonwealth v. Lassiter, 457 Pa. 582, 321 A.2d 902 (1974).

The primary aim of the Fourth Amendment is to protect people from unreasonable intrusions of legitimate [599]*599expectations of privacy. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). It is only legitimate expectations of privacy which are protected by the constitution. There must be more than a mere subjective desire for privacy; it must be an expectation which society recognizes as reasonable. Rakas v. Illinois, supra, 99 S.Ct. at 430-31, n. 12, citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-517, 19 L.Ed.2d 576 (1967).

The appellant had no possessory or proprietary interest in the premises where he was arrested and the rifle and scope seized. The first floor of the house was occupied by Karen Timbers and her three children and the second floor by Leah Whitehead (Karen Timber’s sister) and her child. The appellant was a friend of both females and he occasionally made social visits to their home. He was not an over-night or live-in guest and he did not use any part of the house for any purpose. On the day of his arrest he only had been in the house for 10 to 15 minutes previously. Under the circumstance of this case we find that appellant had no expectation of privacy in the premises of his friend Karen Timbers.

Next, appellant argues that he was denied effective assistance of counsel in the trial of his case in that counsel failed to object to the admission of certain irrelevant and prejudicial testimony of attorneys representing two Commonwealth witnesses.

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Bluebook (online)
459 A.2d 322, 500 Pa. 593, 1983 Pa. LEXIS 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-tann-pa-1983.