*2 McEWEN, Before DEL KELLY, SOLE and JJ. McEWEN, Judge:
The Commonwealth has undertaken appeals these from an order which suppressed the inculpatory statements of appellees John Gilbert and Vincent Gilbert. We have con- solidated appeals these for consideration of the sole issue presented by appeals, both namely, whether the preliminary arraignment of the brothers was held within six hours after arrest, pursuant to the rule established by the Penn- sylvania Supreme Court in Commonwealth v. Davenport, 278, 471 Pa. 370 (1977). A.2d 301 We conclude that the suppression order of must be reversed.
356 is, course,
Our first task to determine whether findings suppression factual court are supported by record, Monarch, 138, 146, Commonwealth v. 74, (1986); Fischer, 507 A.2d 78 Commonwealth v. 348 418, Pa.Super. 420, 613, (1985), 502 A.2d 614 for the law is by findings clear that we are bound such factual suppression court as are supported by record. Com Chamberlain, 108, 111, Pa.Super. monwealth v. 332 480 (1984); Chiesa, A.2d 1211 401, 403, (1984). not, 478 A.2d Pa.Super. We are however, bound the conclusions of law reached hearing may suppression court and we reverse the court when those conclusions are error. Commonwealth v. Brown, 476 A.2d Pa.Super. opinion distinguished
The hearing judge reflects analysis thoughtful his careful the record and study *3 Moreover, prevailing our principles law. conclusion upon following findings relies of the hearing court: completed police Vincent Gilbert his statement to the at a.m., 1:50 while the statement of John Gilbert was com- at 3:03 a.m. pleted arraigned a.m.,
Vincent Gilbert was at 4:12 minutes two after his arraigned brother John had been at 4:10 a.m. differ, however, We with the conclusions of the hearing placed court that John under at Gilbert 10:05 p.m., and that Vincent placed Gilbert was under arrest at 10:10 since p.m., our review of the record leads us to conclude that each of the arrests occurred several minutes and, result, thereafter as a within the crucial hour period prior arraignment, to the focus of the Supreme Court mandate in Davenport, supra. long
It has been the in this law Commonwealth that an arrest will be deemed to have occurred where a police officer acts with the intention to take a person custody into and to subject person his or her will and control. 56, 68, 304, 411 Commonwealth v. Pa. 190 A.2d Bosurgi, (1963), 311 cert. Bosurgi Pennsylvania, denied v. 375 U.S. 910, 204, (1963); 84 11 L.Ed.2d S.Ct. 149 Commonwealth v.
357 Boden, 108, 109, 337 Pa.Super. 504, (1984), 486 A.2d 505 287, (1986); Commonwealth v. aff'd. Rodriquez, Pa.Super. 295, 302, 330 558, (1984); 479 A.2d 562 Commonwealth, Neitz v. Department Transportation, “ Pa.Cmwlth, 1, 4, 961, (1986). 96 506 A.2d ‘Whether an arrest has depends upon occurred impression conveyed detained, person to the upon not the officer’s subjective ” intentions.’ Lagana, Pa.Super. 179, (1986), 514 A.2d quoting Commonwealth McManus, 353 Pa.Super. 509 A.2d The testimony discloses that appellee Gilbert, aware that he had become the object of a search by individ- uals bent on retaliation by reason of an rape accusation of him, against made sought the safety protective custody police, and found such refuge between 10:00 p.m. and 10:05 p.m. when he came upon Officer Brenda accepted Stowe and of her sanctuary patrol car. Offi- cer Gilbert, Stowe and her passenger, Vincent proceed- then ed through neighborhood to locate “the people that were to him going up”, beat and actually “stopped a few people who chasing him”. It was at that time that Officer Stowe proceed a radio call to received to a distur- bance a few blocks where away, she encountered “a disor- crowd, ganized a disturbance”. It was there that she observed being John Gilbert placed by police officers in a patrol crowd, and wagon away from the and where she watched the victim of the rape, “ranting and raving” fashion, Gilbert, identify Vincent passenger her car, rapist. as a Officer Stowe further testified that when *4 her supervisor arrived at 10:17 p.m., she was still “investi- Gilbert, Mr. gating rape and the whole particu- [the victim] lar situation”. It was when supervisor the thereafter relat- ed that the victim had filed a criminal complaint rape, that the and, brothers were to subjected at 10:20 p.m., to transported police the station for interrogation. dispute
No one will that officer assigned to patrol the streets of Philadelphia during nights the hot summer must ever be intensely alert since the officer in will
the next moment likely confront disaster, disturbance or each accompanied by grave personal And, danger. course, once patrol officers delivered appellees to the arraigning in station, officers the police to the street they return, had to promptly knowing their hope —that presence will establish calm—to be a vain one. The record reveals that the turbulence that here beset the patrol officers commenced between 10:00 and 10:05 p.m. on July night and saw:
Vincent Gilbert thwart threats of harm by seeking the protective custody patrol a car.
The police undertake to patrol the area to locate the angry crowd.
John Gilbert taken from the midst of the crowd and placed patrol a wagon.
The victim of the rape, “ranting fashion, and raving” accuse her attackers.
The command officer patrol advise the officers that the victim had filed a formal complaint of the rape.
Thus, we conclude that the appellees arrest of did not occur they when were separately rescued police and placed in police vehicles, nor even at the moment that the victim excitedly them, accused since the tumult reflected by the record would permit not the patrol officers to so quickly conclude that their passengers were felons and subject to Rather, arrest. the arrests took place when the supervising officer at 10:17 p.m. patrol advised the officers that victim had filed a rape complaint, and thereby transformed the status of appellees from that of protected to that of prisoners.
It may not be doubted that these events would con sume minutes, several and that the officers would need a few further minutes to “sort out” the turmoil of all And, course, events. provided clarity report of the police supervisor that the victim had filed a complaint of rape enabled the patrol officers to respond decisively and to transport them from the prisoners. site as Since, there fore, the arrest did not occur prior 10:17, to the arraign- *5 at of Gilbert ments of John at 4:10 a.m. and Gilbert enunciated accomplished 4:12 a.m. within the standard in Davenport, supra. throughout the entire
The of Officer Stowe performance an the of exemplary protected quarry occurrence was —she victim, mob, and she angry responded she to the cries cause was alleged probable arrested the assailants when hand, The of on the other appellees, established. assertions stop- for provided to have required would have a recordings performance, their watch-videotape-replay of contests, games and athletic but refinement suitable and appropriate pursuit prose- for the serious hardly deadly society. of the marauders of our cution officers com- arraignment The conclusion follows that the from the assignment period before the six hour pleted and, therefore, suppressed the order which expired, reversed, case must and the appellees the statements of be remanded for trial.1 for trial. Jurisdiction
Order reversed. Case remanded relinquished. SOLE, J., concurring opinion.
DEL
files a
Davenport
Pennsylvania Supreme
recently modified
1. The
Court
of
made within six hours
when it decreed that statements
an accused
arraignment
suppressed solely
of an arrest will not be
because
within six hours of the time of the arrest. Commonwealth v.
not held
Duncan,
The statements
A.2d
made within five hours of the moment
we here review were both
occurred,
thus,
appellees
order of
when
claim the arrest
and
suppression
Duncan decision as
must be reversed
reason
well.
Davenport
permit
exception, specifically, the
The
rule does
an
"exi-
applicable
gent
exception
becomes
if there was
circumstances”
which
acceptable
officers to
an
reason for the failure
the stationhouse
Logic,
arraign
common sense and a
the accused within
hours.
victim, as well as of the
focus that balances the interests of the
accused,
argument
“exigent
provide
that the
a sound basis for the
exception
every
applicable
study
is
bit as
to a
circumstances”
here,
precise
moment when the countdown commences —as
when the
is the crucial issue—as it is to an examination
time of the arrest
however,
proposition,
This
moment when the countdown ceases.
decision we
be neither addressed nor resolved
view the
need
here reach.
SOLE, Judge, concurring:
DEL
I concur
reached by my colleagues
with
result
but I
*6
believe that
case is
Supreme
this
controlled
our
Court’s
Duncan,
recent
holding
514 Pa.
Duncan modifies the Davenport
Father James MAMALIS LINES, Moving ATLAS VAN INC. McClain Co. LINES, Appeal of VAN ATLAS INC. Superior Pennsylvania. Court
Argued March 1987. Filed June 1987.