DocketNumber: 64 W.D. Appeal Dkt. 1998
Judges: Flaherty, Zappala, Cappy, Castille, Nigro, Newman, Saylor
Filed Date: 12/23/1999
Status: Precedential
Modified Date: 10/19/2024
concurring and dissenting.
I agree with the Majority that Section 2711(b) of the Crimes Code, 18 Pa.C.S. § 2711(b), must be interpreted in harmony with the Fourth Amendment. However, I believe that the Majority incorrectly concludes that the warrantless search of appellant’s home violated the Fourth Amendment. Further, I would find that the admission of the firearms used in the commission of the crime constituted harmless error. Therefore, the judgment of sentence should be affirmed.
This Court has recognized that exigent circumstances will justify a warrantless search where police believe in good faith that a life-threatening emergency exists. Commonwealth v. Maxwell, 505 Pa. 152, 163, 477 A.2d 1309, 1315, cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984). The definition of exigent circumstances includes “[t]he need to protect or preserve life or avoid serious injury.” United States v. Echegoyen, 799 F.2d 1271, 1278 (9th Cir.1986), quoting, Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). One of the factors to be considered in determining whether exigent circumstances exist is danger to persons inside a dwelling. Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269 (1994), citing Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).
In the case sub j'udice, the presence of loaded firearms in a house to which appellant’s nine-year-old son could return at any time created a potentially life-threatening situation that justified the warrantless search. Although appellant’s son was
Moreover, I do not believe that the fact that police may have “secured the scene” would have given them the authority to bar the child from his own home, where he was entitled to be, absent a warrant to seal the scene. In Al-Azzawy, supra, the United States Court of Appeals for the Ninth Circuit held that police were justified in conducting a warrantless search in order to ensure the safety of the appellee’s premises because the police could not arrest all of the individuals who were entitled to enter the trailer, including appellee’s two small children. Given that appellant’s son was in near proximity and had the right to return to his home at any time, it was necessary for Trooper Fuller to remove a potentially loaded firearm from the home to ensure the child’s safety.
Trooper Fuller’s actions were clearly intended to protect appellant’s son should he return to the home. This conclusion is strengthened by the fact that, in addition to seizing the two
Furthermore, even if the search were unconstitutional, the admission of the firearm used in the commission of the crime at trial was harmless error.
First, the Commonwealth introduced the testimony of Gizella T. Miller, one of appellant’s neighbors. Miller testified that
The Commonwealth also introduced the testimony of Trooper Stephen M. Russo of the Pennsylvania State Police. Trooper Russo testified that, upon arriving at appellant’s house, he observed a spent bullet casing by the screen door, then knocked on the door and identified himself to appellant, who responded to the knock. Trooper Russo and his partner detained appellant and proceeded into the home, where they observed the victim bleeding profusely and observed the victim’s son, who appeared “shaken up.” Trooper Russo testified that, when he spoke with the nine-year-old boy, the child told him that he and his mother had been asleep in the bedroom when appellant came home and initiated an argument with his mother. According to Trooper Russo, the child stated that the argument moved into the living room, at which time the child heard two gun shots. The boy then came out of his bedroom and observed his father on top of his mother, prompting him to return to the bedroom and call the police. N.T. 1/14/97 at 22-24. Trooper Russo also testified that he questioned appellant after giving him his Miranda warnings.
Next, the Commonwealth introduced the testimony of State Trooper Roy G. Fuller, who testified that, during the investigation, he retrieved a copy of the initial call to police from appellant’s child. The jury subsequently heard the tape-recorded call, which proceeded, in relevant part, as follows:
911: Westmoreland 911.
CHILD: Oh, my Dad’s trying to kill my Mom!
911: Repeat that.
CHILD: Huh?
911: What did your Dad do?
CHILD: He got the gun and he is laying on my Mom.
911: He is laying on your Mom?
CHILD: He’s drunk.
911: Where do you live at? You said fifth house—
CHILD: My dad’s coming!
911: Fifth house — don’t hang up the phone. Fifth house on the right coming from where?
CHILD: I can’t.
(Phone hangs up.)
(911 calls back.)
CHILD: Hello.
911: Hey, this is 911. Don’t hang up the phone, whatever you do.
CHILD: My Dad.
911: OK, I know your Dad.
*48 (Phone, hangs up.)
Id. at 57-60.
Trooper Fuller also testified that the victim told him that appellant had put a gun against her head while yelling and screaming at her, aimed , the gun at her head and pulled the trigger. She put her head in her hands to cover herself and he fired again, at which point “it felt like her head exploded.” Trooper Fuller testified that the victim also stated that appellant gave the victim a towel to try to stop the bleeding and told her not to tell the police that he had shot her. The victim added that she was afraid of appellant and frequently lied to protect him.
Finally, the victim herself testified at trial for the defense, asserting that, although appellant had indeed come at her with a gun, she had subsequently gained control of the gun and accidentally shot herself. The victim further testified that the second shot was fired when “[appellant] was trying to come back and get away to leave me, and that is when the gun went off again.”
In light of the aforementioned testimony, it is abundantly clear that the admission at trial of the weapon itself constituted harmless error that did not contribute to the verdict. The jury simply believed the version of events that the victim and her son provided to neighbors, paramedics and police immediately after the incident, and disbelieved the rather incredible version that the victim concocted at the eleventh hour in an attempt to save her husband from a criminal conviction. The presence of the firearm used to commit the crime as a Commonwealth exhibit did not render appellant’s defense any less believable. Rather, it simply allowed the jurors to see the weapon that lay at the heart of the contradictory stories being proffered by the Commonwealth and the defense. The gun itself was never the issue; only how the gun was used.
. Although, as the majority notes, the child was eventually taken in by his grandparents, at the time of the search the child was still across the street at a neighbor's house. N.T. 10/4/95 at 14.
. Although the Commonwealth has not argued for affirmation on the basis of "harmless error,” it is axiomatic that this Court may assign any correct basis for affirmation of the order of the court below. See Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014, 1016 (1999), citing Commonwealth v. Shaw, 494 Pa. 364, 368 n. 1, 431 A.2d 897, 899 n. 1 (1981).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Expert testimony at trial established that the spent bullet casings on the ground outside the house were 9mm Makarov bullet casings. N.T. at 68.
. The majority asserts that the actual weapon was essential to the Commonwealth’s case because, in order to rebut the defense theory, the Commonwealth needed to establish that the gun could not have discharged accidentally. Op. at 665-66. However, appellant himself testified at trial that the gun could not have gone off unless the trigger
. Moreover, it is arguable that appellant impliedly consented to the search of the premises for the purpose of locating the weapon. Appellant testified that he told the troopers that the gun was in the living room and, when they said it was not there, he told them to "look on top of the fridge.” N.T. 1/17/99 at 308. One of the troopers returned to the house and returned with the gun, albeit not from the refrigerator. Thus, although appellant did not expressly consent to a search of the house, he did direct the troopers to attempt to locate the gun where he allegedly believed it to be.