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J. S02037/00
2000 PA Super 92
COMMONWEALTH OF PENNSYLVANIA,
:
IN THE SUPERIOR COURT OF
Appellant
:
PENNSYLVANIA
:
v.
:
:
ZACHARY P. WITMAN,
:
Appellee
:
No. 1104 MDA 1999
Appeal from the Order in the Court of
Common Pleas of York County,
Criminal Division, No. 5411 CA 1998
BEFORE: DEL SOLE, TODD and TAMILIA, JJ.
OPINION BY TAMILIA, J.:
Filed: March 28, 2000
¶ 1
The Commonwealth appeals from the May 7, 1999 Order suppressing
certain evidence necessary for the criminal homicide prosecution of appellee,
Zachary Witman.
When the Commonwealth appeals from a
suppression order, we follow a clearly defined
standard of review and consider only the evidence
from the defendant's witnesses together with the
evidence of the prosecution that, when read in the
context of the entire record, remains uncontradicted.
The suppression court's findings of fact bind an
appellate court if the record supports those findings.
The suppression court's conclusions of law, however,
are not binding on an appellate court, whose duty it
is to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879, 880-881
(1998) (citation omitted). Upon careful and independent review of the
record, we find the suppression court's findings of fact to be well supported.
On October 2, 1998, thirteen year old Gregory
Witman was killed in his home in New Freedom,
Pennsylvania. Gregory's brother, the [appellee]

J. S02037/00
Zachary Witman, placed a 911 telephone call
requesting emergency assistance at approximately
3:17 p.m. EMT, fire, and police personnel responded
to the Witman home. EMT and fire personnel were
the first to arrive at the scene. The Southern
Regional Police Department arrived at approximately
3:25 p.m. Officer Sean Siggins was the first law
enforcement officer on the scene. An EMT
approached Officer Siggins and advised him that "he
had a crime scene." Officer Siggins observed the
[appellee] standing in the garage with EMT Weigle.
Officer Siggins observed that the [appellee] was in
an excited state, and was holding a telephone.
Blood was visible on the telephone as well as the
[appellee's] hands and shirt. Officer Siggins spoke
briefly with the [appellee], and testified regarding
that conversation as follows:
He [the appellee] at first just said he had to
call his mom, he had to call his mom. I
requested -- I got some information from
him, his name, why we were there. He said
that he was home sleeping. He left a key in
the door for his brother to get home. He
heard a thud downstairs like something was
getting thrown against the wall, came
downstairs, found his brother, and called
911.
After speaking with the [appellee], Officer
Siggins walked to the doorway in the garage leading
to the laundry room in the house and observed
Gregory's body on the laundry room floor.
Chief James Childs arrived at the scene at
approximately 3:30 p.m. He met Officer Siggins on
the driveway and instructed the officer to conduct a
canvass of the neighborhood after he had composed
himself. Chief Childs observed Gregory's body from
the doorway into the laundry room, then returned to
his car to get crime scene tape. He instructed the
Deputy Fire Chief to assign a fire fighter to mark a
police area. The police area was marked with tape
establishing the perimeters of the crime scene and
sealing it off from unauthorized persons. A list was
- 2 -

J. S02037/00
maintained upon the instruction of Chief Childs of all
who entered the perimeters of the crime scene.
Chief Childs then approached the [appellee],
who "was screeching in a high pitched voice" and
indicating that he had to call his mother. Chief
Childs also observed blood on the front of the
[appellee's] sweatshirt. Chief Childs then went to
where EMT Neal was standing near the door and
spoke to him concerning what the EMT had
observed. EMT Neal indicated that he did not know if
there was anyone else inside the house. Chief Childs
then conducted a "security sweep" of the premises to
determine if anyone was inside.
While conducting the "security sweep" Chief
Childs indicated that he saw droplets of blood on the
linoleum kitchen floor. In the hallway he saw large
amounts of blood on the floor, as well as a broken
table, a jacket, a book bag, and a key ring neck
chain. He then proceeded into the family room, then
into a "formal room," then in the foyer where he
observed blood on the front door and on the walls.
From here he could again see the book bag and the
broken stand. Chief Childs then went upstairs,
observing that all the doors were closed save for the
bathroom door, through which he could see a towel
on the floor. He went into and quickly scanned all of
the upstairs rooms before going back downstairs.
Chief Childs went through what he described as a
formal dining room, through the kitchen, and out the
door to the outside of the house where he radioed
for further assistance.
At this time, Chief Childs followed the
[appellee] as he and EMT Weigle walked to the
ambulance which was at the end of the driveway.
Chief Childs saw Detective Goodfellow arrive at the
scene, and approached him. Chief Childs told
Detective Goodfellow what his observations had been
and that a crime scene had been established. Then
Chief Childs and Detective Goodfellow approached
the ambulance together. Chief Childs identified
himself to the [appellee] and asked if the [appellee]
could "help us with this incident." The [appellee]
- 3 -

J. S02037/00
gave a brief statement before becoming visibly
upset, and asked Chief Childs to call [his] mother.
Specifically, Chief Childs testified concerning the
[appellee's] statements as follows:
At this point he told me he [the appellee] was
upstairs sleeping. He heard the front door
open, heard the front door close. He heard
what appeared to be a struggle. And the
whole time he's talking to me and relaying
this, his voice was elevating, lowering,
quivering. And each time he would talk I
would have to ask him to calm down and try
to speak softly and more clear so I could
understand what he was saying.
He then said he heard what appeared to
be a struggle. He came downstairs, observed
blood on the floor of the hallway, went out
into the kitchen and found his brother laying
on the floor. I then asked him did he see
anyone or hear anything. He said no, and all
he kept saying at that point [was] that his
brother was suffering, just suffering, just
suffering and repeatedly saying that.
He started to become physically upset
again where his voice was screaming. He
asked to call his mother. He was worried
about his dad. I reassured him that we
would take care of contacting his parents,
and then he looked at me and said, would
you please call my mother.
. . .
I said I would call his mother. How do I get
in touch with her? He then told me that her
phone number is on the refrigerator door on
a piece of paper.
While the record is unclear, it appears that the
[appellee] left for the hospital in the ambulance at
approximately 3:45 p.m. Chief Childs instructed
Officer Boddington, who had arrived upon the scene,
- 4 -

J. S02037/00
to follow the ambulance and secure the [appellee's]
clothing. After speaking with the [appellee], Chief
Childs and Detective Goodfellow re-entered the
house where Chief Childs indicated to Detective
Goodfellow what evidence he had seen on his initial
protective sweep. Thereafter, Chief Childs requested
the Pennsylvania State Police Crime Scene
Investigation Unit to respond to the scene. He also
obtained the [appellee's] mother's telephone number
from the refrigerator, as the [appellee] had
requested, and placed a call to her from a neighbor's
home. Chief Childs also called the Airport Police
Division of BWI Airport to attempt to locate the
[appellee's] father when his flight arrived from
Chicago.
It is unclear exactly when Mrs. Witman, the
[appellee's] mother, arrived at the household from
her work, however it appears to have been between
fifteen minutes to an hour after the [appellee] was
taken to the hospital. When Mrs. Witman arrived,
Chief Childs approached her at the end of the
driveway. His testimony on direct examination
concerning what happened next was as follows:
A. ...I walked up to her, put my arm around
her. I again told her I was sorry for the loss of
her son. I then started explaining to her what
we were going to do as far as what we needed
to do as far as processing the crime scene to
obtain clues, evidence, to help us do our
investigation.
Q. What did you say to her specifically?
A. I told her we were going to process the
crime scene.
Q. Okay. And when you advised her of that,
what did she respond?
A. Well, she wanted to go down and see her --
she kept saying she wanted to see her baby. I
told her that I couldn't allow her to do that
because I wanted to maintain the integrity of
the scene.
Q. What did she say when you told her you
wanted to maintain the integrity of the crime
scene for processing?
- 5 -

J. S02037/00
A. She told me I better do my job and find
out who did this.
. . .
Q. Why didn't you get a search warrant at
that point after you had these discussions
with the [appellee's] mother?
A. I felt that, you know, after me advising her
what we were going to do to her residence, I
just -- you know, nothing was ever transpired
saying no, we couldn't do this, or yes, we
could do this. I just assumed that, you know,
she knew what I wanted to do and what the
detective team was going to do. I explained
to her that we called in people that were
specialized in processing crime scenes,
photographs, and I just -- we just did it.
Two members of the State Police crime scene
unit arrived at approximately 4:30 and 5:30
respectively. The Chief County Detective from the
Office of the District Attorney reported to the crime
scene as well as the first assistant district attorney
and a deputy district attorney. The state trooper
from the crime scene investigation unit who arrived
at 4:30 began to photograph the outside of the
Witman residence, and the crime scene unit began to
process the scene at 5:30 upon Trooper Woodcock's
arrival. Preliminary processing of the scene had
already begun by the time Chief Childs relayed Mrs.
Witman's words, "you better do your job," to
Detective Goodfellow. At that juncture in the
processing, photographs had been taken, and
Trooper Woodcock had identified some specific areas
of evidence of which he wanted samples or
photographs taken. The preliminary processing of
the crime scene prior to Mrs. Witman's arrival was
largely exterior to the household and the open
attached garage.

During the ambulance ride to the hospital, the
[appellee's] sweatshirt and socks were removed by
EMT Weigle at the [appellee's] request, and were
placed inside a plastic bag. She also wiped the
[appellee's] hands with a towel and placed that towel
in a bag as well. An alcohol swab and a glove used
- 6 -

J. S02037/00
by EMT Weigle were also placed in a bag. These
items were eventually given to Officer Boddington at
the hospital. Officer Boddington requested the EMT
to turn over the items to him.
Detective Clancy of the District Attorney's
Office arrived at the hospital between 5:15 and 5:30
p.m. Beginning at approximately 5:45, Detective
Clancy spoke with the [appellee] for fifteen to twenty
minutes. He introduced himself and told the
[appellee] that he was safe. Detective Clancy began
the conversation by talking about soccer and sports.
According to Detective Clancy, the [appellee]
indicated that he "had been home sick from school
and that he had stayed in his room, or he had been
in bed all day and that he heard some noises and he
thought it was his brother coming home from school.
He had been asleep, and that he came down to
check on the noise and he saw blood at the front
door, and that he found his brother in the laundry
room." Afterward, Detective Clancy spoke briefly
with Mrs. Witman, who had arrived after the
Detective began speaking with the [appellee].
Detective Clancy then spoke with the [appellee]
again while his mother was present.
Mr. Witman arrived at the hospital at
approximately 8:00 p.m. There he was met by
Detective Clancy, and at some point thereafter
Detective Clancy informed Mr. Witman what was
occurring at his home concerning the processing of
the crime scene:
A. I advised him that the police were on the
scene. I was of course sent to the York
Hospital to talk with [appellee] to gather
information, and there were people at the
scene, and it was going to be a long process
because we needed to process the scene and
gather up, you know, evidence, and that it
would be a long process.
Q. And what was his response to those
statements that you made?
A. He told me, "whatever it takes, do." ...
- 7 -

J. S02037/00
Mr. Witman acknowledged that his response to
Officer Clancy was: "Go find Greg's killer." Mr.
Witman specifically denied that Detective Clancy
utilized the term "processing scene" and gather up
evidence. The Court will accept Detective Clancy's
version of the conversation, as well as Mr. Witman's
directive. Both are consistent with one another and
plausible based upon the factual background. We
note the [appellee] represented in his brief in
support of his pretrial motion that his father made
the statement "whatever it takes, do!" as what was
said at the hospital. We further note that
subsequent to the first day, Mr. Witman remained in
contact with Chief Childs directly asking the police to
return to the household to conduct further
investigations within the house. Indeed one of the
later search warrants for the household was initiated
at Mr. Witman's request.
Detective Clancy returned to the crime scene
between 8:30 and 9:00 and relayed Mr. Witman's
remarks to the investigating officers. At
approximately 12:30 the following morning, a
chemical called Luminol (used to enhance the
visibility of blood) was brought from the State Police
Lab to the crime scene. Luminol was used to detect
traces of blood and blood trails that were not visible
with the naked eye. Upon application of the Luminol
it is apparently the contention of the Commonwealth
that various trails were discernable within and
outside the household. The blood trails led to
various locations throughout the house and yard
including a "computer hutch" in the family room, and
to a crop of trees next to a Jacuzzi in the back yard.
A mound of dirt was discovered under the branches
of one of the trees. Excavation of the mound
uncovered a knife and what were eventually
identified as athletic gloves. Up to this point in time,
the evidence collected by the Commonwealth was
seized without a warrant. Thereafter, a warrant was
sought for any additional seizures of evidence.
(Trial Court Opinion, Uhler, P.J., 5/7/99, at 2-10; citations to the
suppression hearing transcript omitted.)
- 8 -

J. S02037/00
¶ 2
Upon review of the evidence, the court denied appellee's motion to
suppress in part, admitting 50 items of evidence, and granted the motion in
part, suppressing 22 items of evidence. In accordance with Pa.R.A.P. 311
Interlocutory Appeals as of Right (d) Commonwealth Appeals in
Criminal Cases, the Commonwealth certifies that suppression of 16 of
these 22 items of evidence terminates or substantially handicaps its
prosecution of appellee.1 The Commonwealth presents the following issues
for our review.
I. Did the trial court err in ordering the suppression
of sixteen items of evidence when the Appellee
lacked a legitimate expectation of privacy in his
residence following his request for police assistance
after the murder of his brother?
II. Did the trial court err in ordering the suppression
of sixteen items of evidence when the Appellee, his
mother, Mrs. Amelia Sue Witman, and his father, Mr.
Ronald Witman, gave their consent to the search and
seizure of all evidentiary items within their home?

1 The Commonwealth challenges the suppression of the following 16 items:
· blood sample from garage floor;
· blood sample from tile just inside garage door to house;
· table cloth from dining room table with blood on it;
· hair from molding on kitchen side of kitchen/laundry room door;
· welcome rug from foyer at front door;
· sample of unknown substance from back gate;
· trash from kitchen trash compactor;
· two knives from dishwasher in kitchen;
· clump of napkins from trash compactor bag;
· latent lift from inside front door (item #33 in Motion to Suppress);
· latent lift from inside front door (item #34 in Motion to Suppress);
· lift from inside of garage/laundry door;
· outside latch from screen door on rear screen porch;
· red "AP Long Lasting Mufflers" exacto type knife from appellee's bedroom;
· appellee's white socks taken from pink plastic bag obtained at the
hospital; and
· appellee's pants and underwear.
- 9 -

J. S02037/00
(Appellant's Brief, at 4.)
¶ 3
We begin by addressing the Commonwealth's argument that in
summoning police to his residence, appellee reduced his expectation of
privacy therein. "[T]o prove a legitimate expectation of privacy in a
structure, a defendant must establish that he has either a possessory
interest or a legitimate presence, or he must establish some factor from
which a reasonable and justified expectation of privacy can be deduced."
Commonwealth v. Gordon, 546 Pa. 65, 74, 683 A.2d 253, 257-258
(1996), citing Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615
(1993).
Implied Consent
¶ 4
Under the facts of the present case, it is clear appellee had a
legitimate expectation of privacy in the house in which he lived at the time
he placed the 911 phone call.2 A review of the transcript of the 911 phone
call reveals appellee sought to obtain medical assistance for his brother.
Although broadcast as a medical matter, the emergent nature of the call
made essential the prompt assistance of emergency personnel, be it
medical, police or fire. Thereafter, appellee opened the garage door of the

2 A minor has the capacity to consent to the search of the family residence
where the requirements for valid consent to search have been satisfied.
See United States v. Broaden, 116 F.3d 1486 (9th Cir. 1997), cert.
denied, 522 U.S. 939, 118 S. Ct. 353, 139 L. Ed. 2d 274 (1997); Lenz v.
Winburn, 51 F.3d 1540 (11th Cir. 1995) and United States v. Clutter,
914 F.2d 775 (6th Cir. 1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413,
113 L. Ed. 2d 466 (1991).
- 10 -

J. S02037/00
house to allow emergency personnel quick access to his brother. Appellee
informed police that he had been upstairs in his bedroom, heard a thud as if
something was being thrown against a wall and went downstairs. Appellee
explained that upon discovering his brother, he called 911.
¶ 5
Having found no case in this Commonwealth sufficiently on point, we
look to the case law of our sister states for discussion of this matter. Our
review leads us to conclude that a sound exception to the warrant
requirement must exist where a defendant has summoned police and set the
tone for the initial investigation.
¶ 6
In Brown v. Texas, 856 S.W.2d 177 (Tex. Crim. App. 1993), the
defendant called police and reported having discovered his wife dead in the
garage. Upon arriving, police searched the detached garage and the home,
based upon the information provided by appellant. The Texas Court of
Criminal Appeals held:
when a crime is reported to the police by an
individual who owns or controls the premises to
which the police are summoned, and that individual
either states or suggests that it was committed by a
third person, he or she implicitly consents to a
search of the premises reasonably related to the
routine investigation of the offense and the
identification of the perpetrator. As long as the
individual is not a suspect in the case or does
nothing to revoke his consent, the police may search
the premises for these purposes, and evidence
obtained thereby is admissible. This implied consent
is valid only for the initial investigation conducted at
the scene and does not carry over to future visits to
the scene.
- 11 -

J. S02037/00
Id. at 182. See also State v. Fleischman, 754 P.2d 340 (Ariz. Ct. App.
1988)(by reporting to police that his wife had been killed in their restaurant,
the defendant, who was not a suspect at the time, implicitly consented to
the search of the restaurant and authorized the subsequent investigation);
State v. Fredette, 411 A.2d 65 (Me. 1979)(defendant consented to the
search of her home where she called police, reported that her husband had
been shot and, through her conduct, cooperated, approved and encouraged
the police in their search); Kelly v. State, 249 N.W.2d 800 (Wis.
1977)(defendant consented to search of premises where she reported to
police that the deceased had been shot and that she had been in another
room of the house at the time of the shooting).
¶ 7
Upon careful review of the facts of the present case, we find in
summoning emergency personnel for help and by communicating to police
the idea that a murderer was at large, appellee implicitly consented to the
police entry into the house.
The Protective Sweep Doctrine
¶ 8
The manner in which the victim sustained his fatal injuries made clear
that a crime had been committed. Moreover, through his statement to
police, appellee clearly communicated to police that there was a murderer at
large, perhaps still in the house. Without knowing whether anyone remained
in the house and based upon the information provided to them by appellee,
police properly recognized the possibility that there may have been victims,
perpetrators or witnesses remaining at the scene. Accordingly, police
- 12 -

J. S02037/00
conducted a protective sweep of the premises for purposes of determining
whether anyone remained inside the house.
¶
9
Under emergent circumstances, protective sweeps are a well-
recognized exception to the warrant requirement. In Commonwealth v.
Crouse, 729 A.2d 588 (Pa. Super. 1999), appeal denied, 1999 Pa. LEXIS
3419 (Pa. November 9, 1999), this Court held that properly conducted
protective sweeps violate neither the Fourth Amendment of the United
States Constitution nor Article I, Section 8 of the Pennsylvania Constitution.
Crouse involved police officers attempting to effectuate an arrest warrant at
the defendant's home. Police, already lawfully inside the home, heard a
woman's scream from the second floor of the home and immediately
proceeded to the second floor "to secure the residence for the safety of the
officers." Id. at 590. Upon review of the definition of a "protective sweep"
as set forth in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108
L.Ed.2d 276 (1990), in conjunction with Pennsylvania case law discussing
similar cursory searches, this Court held that protective sweeps are
permissible pursuant to Article I, Section 8 of the Pennsylvania Constitution.
The kind of sweep envisioned here is for persons. It
cannot be used as a pretext for an evidentiary
search. It cannot be lengthy or unduly disruptive.
It must be swift and target only those areas where a
person could reasonably be expected to hide. Above
all, it must be supported by articulable facts and
inferences giving rise to reasonable suspicion that
the area to be swept harbors an individual posing a
danger to the police.
Crouse, supra at 598.
- 13 -

J. S02037/00
¶ 10 While the facts of this case do not involve execution of an arrest
warrant as in Crouse, they do create exigent circumstances at the greatest
of levels. In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d
486, where the facts involved fireman responding to a furniture store fire,
the United States Supreme Court, in an Opinion authored by Justice Stewart,
held "it would defy reason to suppose that firemen must secure a warrant or
consent before entering a burning structure to put out the blaze." Id., 436
U.S. at 509, 98 S.Ct. at 1950, 56 L.Ed. 2d at 498. "A burning building
clearly presents an exigency of sufficient proportions to render a warrantless
entry `reasonable'". Id. So too in the present case, where there was a
reasonable and appropriate belief victims, perpetrators or witnesses
remained inside, the exigency was sufficient to justify warrantless entry into
the house. Based upon the information supplied by appellee, police had
every reason to believe a third party had been and, more importantly due to
the very short span of time between the murder and the police's arrival,
perhaps, was still inside the house. Police had no reason to disbelieve
appellee and, thus, we find the protective sweep to have been lawful and
entirely appropriate. In conducting its protective sweep, it is well settled
that all evidence observed in plain view is admissible. Id. Appellee's phone
call to 911, in addition to his statement to police, upon their arrival, created
a reasonable suspicion that victims, perpetrators or witnesses remained
inside the house. The trial court fell into error when it treated appellee at
the outset as a perpetrator rather than a victim for purposes of search and
- 14 -

J. S02037/00
seizure when the police had every reason to believe otherwise. In his
Opinion at page 15, the court states:
In effect, the Commonwealth is asking the Court to
ignore the time honored notion that a defendant is
innocent until proven guilty. . . . Therefore, the
[appellee] has a reasonable expectation of privacy in
his home which was not abandoned by his calling for
emergency assistance.
(Slip Op. at 15-16.)
The 911 recording and transcript
¶ 11 The suppression court found the contents of the 911 call to be
irrelevant and, therefore, inadmissible. (See Trial Court Opinion, Uhler, P.J.,
5/7/99, at 12, footnote 1.) The court explained that this evidence played
no part in its consideration of the suppression issues. While this may be
true, upon review of the record, we find no need for the exclusion of the 911
recording and transcript. This evidence forms the very foundation for the
relationship appellee established with police. Appellee maintains no
expectation of privacy with respect to his statements and, furthermore,
careful review of the 911 tape fails to reveal unfair prejudice to the defense.
To the contrary, the statements made by appellee when he called 911
appear to be wholly consistent with all of his subsequent statements to the
police. It may also be necessary during trial, as a truth-determining
process, to test prior consistent or inconsistent statements on behalf of
either the appellee or the Commonwealth. It is the best evidence of what
transpired in the opening minutes of this event and as such may be required
- 15 -

J. S02037/00
as evidence of the occurrence pursuant to Pa.R.E. 1002, Requirement of
Original. At worst, the 911 recording and transcript would be cumulative
and corroborative evidence; however, this evidence, more than any other,
demonstrates what transpired in the opening moments of police involvement
initiated by appellee and goes to appellee's state of mind. In his Opinion,
the trial court acknowledged that police involvement originated with the 911
call and the contents of that call relayed to police are inseparable from their
conduct in reaching the house and their treatment of the appellee. Based
upon the foregoing, we find erroneous the suppression court's exclusion of
the 911 recording and transcript. While the Commonwealth did not object to
the ruling by the trial court on this issue, our ruling may avoid the necessity
of an appeal on admissibility of the tapes or transcripts should the matter
arise at trial.3
¶ 12 Accordingly, based on appellee's call for help and consent to search
the premises, all evidence observed in plain view during the initial protective
sweep is admissible.

3 See Commonwealth v. Rodriguez, 519 Pa. 415, 548 A.2d 1211 (1988)
(Tapes and transcripts of tapes are admissible at trial). Commonwealth v.
DeMarco, 578 A.2d 942 (Pa. Super. 1990) (Answering machine tapes were
improperly suppressed). Commonwealth v. Leveille, 433 A.2d 50 (Pa.
Super. 1981) (Sound recordings are admissible as evidence unless
deficiencies render the recording as a whole untrustworthy).
Commonwealth v. Groff, 514 A.2d 1382 (Pa. Super. 1986), appeal denied,
515 Pa. 619, 531 A.2d 428 (1987) (In a case of first impression, this Court
held that the admission of 911 tapes, which enhanced the screams of the
wife/victim during her killing, was improper as inflammatory; the conviction
was affirmed as the admission constituted harmless error in light of
overwhelming evidence independent of the 911 tapes.)
- 16 -

J. S02037/00
Duration of the permissible warrantless search
¶ 13 The suppression court found that while the evidence observed in plain
view during the protective sweep was admissible, subsequent searches
conducted without a warrant failed to qualify under any exception to the
warrant requirement. We disagree. While murder clues tend to turn cold
quickly and, therefore, prompt investigation is essential, the idea of a
"murder scene exception" was expressly rejected by the United States
Supreme Court in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57
L.Ed.2d 290 (1978). Nevertheless, where police are conducting a valid
search pursuant to a defendant's implied consent, the initial investigation in
its entirety is permissible. As explained in Tyler, supra, an investigation
may require officials "to remain on the scene for an extended period of time
repeatedly entering or re-entering the building . . ." Id., 436 U.S. at 510 n.
6, 98 S.Ct. at 1950 n. 6, 56 L.Ed.2d at 499 n. 6.
¶ 14 The record reveals that appellee presented himself as a victim,
apparently grieving the loss of his brother and traumatized by the heinous
nature of the murder scene. There is no indication police suspected
appellee. The record supports a finding that police were conducting an
investigation pursuant to the valid consent of the resident, i.e. appellee.
Accordingly, we find the period of time during which police canvassed the
area and entered (and re-entered) the home for purposes of their initial
investigation constitutes one continual and initial search.
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Consent extending the warrantless search
¶ 15 The Commonwealth argues appellee's parents individually consented
to the search of their home. In an effort to invalidate their statements, the
defense argues neither parent gave a valid consent. We focus our attention
on the following arguments:
a. The words articulated by mother fail to
communicate consent;
b. The totality of the circumstances surrounding
mother's statement vitiate a finding of consent;
and
c. Father's statement, assuming it constitutes a
valid consent to search, is not retroactive and
does not validate previously conducted searches.
¶ 16 In determining whether valid consent was obtained, we apply the
following standard.
Under both the Fourth Amendment of the United
States Constitution and Article I, Section 8 of the
Pennsylvania Constitution, a search . . . which is
conducted without a warrant, is deemed to be per se
unreasonable. Certain specifically established
exceptions, one of which is a valid consent may,
however, render an otherwise illegal search
permissible. It is the state's burden to prove
consent. This court, as well as the United States
Supreme Court, has long adhered to the principle
that for purposes of the Fourth Amendment, consent
must have been given voluntarily.
Commonwealth v. Cleckley, 558 Pa. 517, 520, 738 A.2d 427, 429 (1999),
citing Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031 (1997),
Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5, 8-9 (1992), Bumper
v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797
(1968), and Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978).
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¶ 17 Moreover, "`voluntariness' is a question of fact to be determined from
the totality of the circumstances and while knowledge of the right to refuse
consent is a factor to consider in determining whether consent to search was
voluntarily and knowingly given, it is not dispositive." Cleckley, supra at
522, 738 A.2d at 430, citing Schneckloth v. Bustamonte, 412 U.S. 218,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
¶ 18 In this case, the mother arrived on the scene after appellee had been
transported to the hospital. Understandably upset, mother expressed her
desire to see her son (the victim). Police properly refused the mother's
request, for the sake of preserving the integrity of the crime scene, as well
as their concern for the mother's emotional and mental stability. The record
reveals that mother was physically and emotionally distraught and stated to
police, "You better do your job." Police testified that they understood this
statement to be a consent to search. Moreover, under the circumstances as
they existed at the time mother made this statement, police had every
reason to believe they were dealing with a grief-stricken brother, and now
mother, receptive to police and with every reason to welcome investigation.
Additionally, the officers testified that they described in detail what was
required in conducting an investigation of this nature and the defense can
not convert the mother's acknowledgment and consent to a mere expression
without significance. This is disingenuous and borders on sophistry. It
would be ludicrous to impose upon police the hindsight knowledge that
appellee would later become their primary suspect, where there was no
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indication of his culpability at the time of mother's statement. Furthermore,
mother was at the house when she made her statement. Without making
light of the excruciating pain mother must have been experiencing, it is clear
mother was aware police were at the house and what their purpose was in
being there. Even under the most restricted of interpretations, the only
logical meaning of mother's statement is a directive to police to conduct
their investigation. How else could the police "do their job" to find the killer
if they were prevented from investigating the crime scene by a thorough
search for evidence. We must reject the courts finding that the mother
failed to consent to the search that followed. Indeed, there is only a
difference in semantics between her consent and that expressed by the
father.
¶ 19 With respect to father's statement, as found by the trial court, we find
the evidence clearly established the conveyance of voluntary and informed
consent to search. The record reveals that father was reasonably calm and
aware of the circumstances. Police communicated to father their need to
"process the crime scene" and father responded by stating, "Whatever it
takes, do."
¶ 20 Based upon the foregoing, we find that the initial valid and permissible
warrantless search continued uninterrupted and that which was observed in
plain view properly was seized. Furthermore, that evidence not in plain view
also properly was seized in accordance with the consent of the appellee and
his parents. Even had the consent of the mother not been valid, consent by
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the father to search the crime scene, which remained secured, would have
led inevitably to the discovery of those items determined by the suppression
court to have been improperly seized pursuant to mother's consent. As a
result, these items would be properly admitted at trial on the basis of the
"inevitable discovery" doctrine. Commonwealth v. Melendez, 544 Pa.
323, 676 A.2d 226 (1996).
¶ 21 Accordingly, all evidence seized inside the house and on the property
as a result of the initial sweep search, mother's consent and father's consent
is admissible at trial. Likewise, the 911 recording and transcript are
admissible for use at trial. We agree with the court's suppression of the six
items seized pursuant to search warrants but for which there was a lack of
probable cause or an inadequate description in the affidavits to the search
warrants.4
¶ 22 Order reversed in part and affirmed in part; case remanded for trial.
¶ 23 Jurisdiction relinquished.

4 These items, numbered 17-22 on page 2 of the Order of May 7, 1999,
follow:
· Shovel, approximately 3 feet in length, wooden handle;
· UHS tape with "Seinfeld Last Episode" written on it;
· White Lanyard with Sports FOBS attached;
· UHS-C tape adapter;
· Telephone records pertaining to dates other than October 2, 1998 unless
further relevance can be established; and
· "America Online" information pertaining to the [appellee's] parents.
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