COMMONWEALTH оf Pennsylvania, Appellant, v. Victor DeFELICE, Jr.
Superior Court of Pennsylvania
June 29, 1977
375 A.2d 360
Argued Dec. 8, 1975.
VAN der VOORT, J., did not participate in the consideration and decision of this case.
David E. Auerbach, Media, submitted a brief for appellee.
Before WATKINS, P. J., and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge:
The Commonwealth has appealed the suppression by the lower court of appellee‘s out-of-court identifications and arrest.1 Because the lower court did not suppress the appellee‘s confession, the fruits of the robbery or the complaining
During the morning of October 9, 1974, a lone gunman robbed a pharmacy in Haverford Township, Delaware County. At approximately 10:00 a. m., two Haverford Township police reported to the scene and secured a detailed description of the suspect. The police followed the suspect‘s reported route of escape and determined that he had entered a house at 100 Marthart Avenue. As the police talked to people standing outside the house, appellee came out аnd requested medical assistance for a cut hand.
The police noticed that appellee fit the description of the robber except for the fact that the suspect was supposed to have a beard while appellee had obviously recently shaved. The officers left appellee‘s residence and reported their findings to the Haverford Township Detective Bureau. Detective McNasby instructed the two officers to return to appellee‘s residence to bring appellee to the station for further questioning. McNasby also instructеd the officers to try to get a positive identification of the appellee on their way back to the station.
The officers returned to appellee‘s residence a little before noon, knocked on the door, and requested to speak to appellee. When appellee came to the door, the officers told him they were investigating a robbery and requested that he agree to an identification by the eyewitnesses. The officers handcuffed appellee and drove to the pharmacy. As they alighted from the car, the pharmacy clerk immediately identified appellee as the robber. The police placed appellee under “formal” arrest, warned him of his right to remain silent, and drove him to the police station. At the police station, the police arranged a face-to-face confrontation between appellee and three other eyewitnesses. The police warned appellee of his Miranda rights again and then secured his signature on a consent form allowing them to search his apartment. The officers returned to appellee‘s residence and searched his room, but found no proceeds of
Upon their return, the officers warned appellee of his right to remain silent; and appеllee agreed to submit to questioning without an attorney present. At approximately 3:20 p. m., appellee gave a statement to the police in which he admitted that he committed the robbery.
Appellee filed a motion to suppress all of the physical evidence secured as the result of his allegedly unlawful arrest because it was secured without a warrant and by coercion. Appellee also sought to suppress the eyewitness identifications because they were secured in the absence of counsel and by means of impermissibly suggestive procedures. Finally, appellee contended that his confession was involuntary because he made it while going through withdrawal under promises of medical assistance if he cooperated. After a hearing on April 22, 1975, the lower court suppressed appellee‘s identification and “the arrest.” The lower court did not clearly indicate that it would suppress the fruits of the search and seizure.2 It did not hold a taint hearing to determine whether the appellant could still be identified in court by the eyewitnesses.3 Fur-
It is a fundamental axiom of appellate court jurisdiction that an appeal will lie only from a definitive order, decree or judgment which finally terminates the action. Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Middleberg v. Middleberg, 427 Pa. 114, 233 A.2d 889 (1967); Commonwealth v. Guardiani, 226 Pa.Super. 435, 310 A.2d 422 (1973). Except for certain statutory exceptions,5 not relevant to the instant case, this Court‘s jurisdiction is confined to appeals from final order of the courts of common pleas. The Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, art. III, § 302, 17 P.S. § 211.302 (Supp.1976). See Commonwealth v. Rucco, 229 Pa.Super. 247, 249-50, 324 A.2d 388, 389 (1974). It is also well settled that the parties may not stipulate to appellate jurisdiсtion in disregard of statutory procedures. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965). And that jurisdiction may not be conferred through the approval of such agreements by the court. Commonwealth v. Yorktowne Paper Mills, Inc., supra; Fenerty Disbarment Case, 356 Pa. 614, 52 A.2d 576, cert. denied, 332 U.S. 773, 68 S.Ct. 89, 92 L.Ed. 358 (1947).
The Appellate Court Jurisdiction Act has expanded the jurisdiction of the appellate courts of this Common-
When the Commonwealth appeals from a suppression order which does not either terminate the case or substantially handicap the prosecution, we must quash the appeal. In Commonwealth v. Smith, supra, the lower court suppressed several out-of-court statements made by an accused who was charged with indecent assault and assault and battery with intent to ravish. The Commonwealth sought to establish the admissibility of the accused‘s apology to the victim in order to corroborate her identification testimony. We found that the Commonwealth‘s case was virtually intact, despite the suppression order, and we quashed the appeal.
In Commonwealth v. Kloch, 221 Pa.Super. 324, 292 A.2d 479 (1972), the appellee was charged with driving an automobile while under the influence of intoxicating liquor.
The instant case is clearly controlled by Commonwealth v. Smith, supra, and Commonwealth v. Kloch.6 At trial, the Commonwealth can still introduce appellee‘s confession, possible in-court identifications by two eyewitnesses, and the fruits of the robbery. None of these items is
Appeal quashed and case remanded for further proceedings.
PRICE, J., files a dissenting opinion in which JACOBS, J., joins.
VAN der VOORT, J., files a dissenting opinion in which JACOBS, J., joins.
PRICE, Judge, dissenting:
I agree with Judge Van der Voort‘s dissenting opinion and join it. However, a further comment seems warranted.
In Commonwealth v. Deren, 233 Pa.Super. 373, 337 A.2d 600 (1975), the majority of this court examined in great detail the problems presented in this area. Although the majority attempts to distinguish the Deren case (p. 524), in my opinion they have not successfully done so, and hence substantially have again handicapped the Commonwealth‘s right to secure meaningful review of a lower court‘s suppression order. In so doing the majority engages in surprising guesswork and speculation that does damage to a system of criminal justice that must remain viable to protect not only individual rights of defendants, but also the public interest of the Commonwealth.
In the instant prosecution it shоuld be obvious that the identification issue is the very heart of the Commonwealth‘s case, yet the majority concludes that “The lower court‘s
In any event it was for this very problem that this court, at least in Deren, concluded that we must be willing to accept the Commonwealth‘s stated position that it will be substantially prejudiced by the suppression order. As we said in Deren:
“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 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.Super. 295, 235 A.2d 462 (1967), the Commonwealth appealed a suppression order and Judge Jacobs, writing for the majority, stated: ‘[s]ince 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.Super. 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.” 233 Pa.Super. at 377-78, 337 A.2d at 602.
I strongly dissent from the majority‘s quashing of this appeal and on the merits of the questions presented would reverse and remand for trial.
JACOBS, J., joins in this dissenting opinion.
VAN der VOORT, Judge, dissenting:
A majority of our Court has decided to quash the Commonwealth‘s appeal of an order suppressing evidence. The rationale of the majority is that the suppression of an on-the-scene identification made by a victim within two hours of a robbery will not substantially handicap the Commonwealth‘s prosecution of the case, in light of the remaining evidence. I respectfully dissent.
In Commonwealth v. Rose, 211 Pa.Super. 295, 296, 235 A.2d 462, 463 (1967), our Court stated: “Since аppellee has not filed a motion to quash, we will assume that the suppression order will substantially handicap the Commonwealth and hear the appeal.” (Emphasis added). In Commonwealth v. Deren, 233 Pa.Super. 373, 377-78, 337 A.2d 600, 602 (1975), our Court reiterated this position: “[W]hen 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 supрression was proper.” In the case before us, no motion to quash the appeal was filed. By quashing this appeal without even giving the Commonwealth an opportunity to show how it may be substantially handicapped by the suppression order, we are doing the Commonwealth a disservice. We have led the Commonwealth to believe that we will automatically entertain appeals from orders suppressing
Turning to the merits оf this case, I would find that the lower court erred in granting the suppression motion. The facts of the case are as follows:
At approximately 10:00 the morning of October 9, 1974, the Havertown Pharmacy was robbed. The robber was described for the police as a bushy-haired white male with a mustache and about a week‘s beard growth, approximately twenty-two years old, approximately one hundred forty pounds, wearing a blue plaid shirt and blue jeans. Police officers following the robber‘s escape route came upon a blue plaid shirt near a fence, and eventuаlly ascertained that a person matching the robber‘s description had entered a house located at 100 Marthart Street. The police knocked on the door of this house, but received no answer. They left, but returned at approximately 11:30 A.M., at which time they came across a number of people smoking marijuana in a car parked in front of the house. While the police were in the process of arresting these people, appellee Victor DeFelice came out of the house and asked the police for first aid assistancе for cuts which he had received in the palms of both hands. The police noticed that appellee matched the description of the drugstore robber, with the exception of the shirt and the beard. They also noticed that appellee had fresh cuts on his face, as if he had just shaved. The police again left, called a detective at the police station for advice, and were told to return to 100 Marthart Street and ask appellee if he would accompany them to the drugstore. The police returned to the house, explained the situаtion to appellee, and asked if he would accompany them. Appellee agreed to go, provided it didn‘t take too long, since he had “nothing to hide.” At the drugstore, a female clerk positively identified appellee as the robber; appellee was informed of his rights and was formally arrested. On the way to the police station, a stop was made near the fence where the blue shirt had earlier been discovered, and appellee‘s shoe
At the police station, appellee was sitting in the Youth Aid Office near the Detective Bureau, when the owner of the drugstore walked past, spotted appellee, and identified him as the robber. Appellee was again informed of his rights, was questioned about the robbery, and was then taken back to the house at 100 Marthart Street. At the house (in which three persons in addition to appellee resided), the police found various articles connected with the robbery: ten bottles of narcotics, a large plastic bag of pills, а bottle of pills with a Havertown Pharmacy label, and a .38 revolver loaded with hollow-point bullets. None of these articles were found in appellee‘s room. The search was conducted with the consent of appellee and the other occupants of the house. Subsequent to this search, appellee was again questioned at the police station, and signed a five-page incriminating statement. Appellee was formally arraigned between 5:30 and 6:00 that evening, charged with robbery, theft by unlawful taking or disposition, theft by receiving stolen property, possession of a firearm without a license, and with narcotics violations. Appellee filed a petition on April 8, 1975 to suppress all evidence obtained in connection with the allegedly-illegal confrontations and arrest, which petition was granted by the lower court (“to the extent that the identification and arrest are suppressed“) by Order dated April 22, 1975. Appeal was taken to our court by the Commonwealth from this Order suppressing these portions of the evidence.
Although the lower court found that appellee had been informed of the crime and the possible сharges and had voluntarily accompanied the police to the drugstore, the court ruled that the police acted improperly in taking appellee to the drugstore rather than to the police station for a line-up. The court accordingly suppressed the identification and the subsequent arrest. I believe that the police were justified in this case in taking appellee to the scene of the robbery, and that the lower court erred in granting the petition to suppress.
In Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1974), our Supreme Court dealt with the issue of an allegedly suggestive and prejudicial confrontation, in an essentially similar fact situation. In Turner, a robbery suspect was apprehended and was taken by the police in a patrol car to be confronted by the victim. The confrontation occurred within fifteen minutes of the crime. The suspect was identified and was subsequently convicted of the crime, and on appeal argued that the identification had been overly suggestive and a denial of his due process rights. While recognizing that Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) required the suppression of identification testimony if the pre-trial confrontation was so infected by suggestiveness as to give rise to irreparable likelihood of misidentification, the court in Turner stated that a prompt on-the-scene confrontation did not, “absent some special elements of unfairness,” violate due process. In so finding,
Although the time between commission of the crime and the identification of the perpetrator was greater in the case before us (just under two hours) than in either Ray (fifty minutes) or Turner (fifteen minutes), I believe that the identification of appellee was made while the police were still in the early stage of their investigative work, and was made quickly enough after the crime to outweigh any suggestiveness in the viewing. Neither appellee‘s Wade nor Stovall rights were violated by the actions of the police in this case.
Accepting the finding of the lower court that appellee voluntarily accompanied the police to the drugstore, and having found that appellee‘s Wade and Stovall due process rights were not violated by the confrontation at the drugstore, it is necessary to address the question of whether appellee was illegally arrested. Whether or not an arrest is constitutionally valid depends upon whether at the moment the arrest is made the arresting police officers have probable cause to make the arrest-whether at the time of the arrest the facts and circumstances within the knowledge of the arresting officers, and of which they have reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in believing that the suspect has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Murray, 437 Pa. 326, 329, 263 A.2d 886 (1970); Commonwealth v. Tookes, 236 Pa.Super. 386, 388, 344 A.2d 576 (1975). In the case before us, a suspect who voluntarily accompanied police officers to the scene of a robbery was identified as the robber by one of the victims. After this identification, the police were in possession of information which would lead reasonable persons to conclude that appellee had committed a robbery-probable cause then existed for an arrest. See
I dissent from the majority‘s disposition. The Order of the lower court dated April 22, 1975 should be reversed, and the case should be remanded with a procedendo.
JACOBS, J., joins in this dissenting opinion.