*1 appoint represent appellant fil- tions to in the counsel petition ing any post-conviction fur- an amended proceedings ther thereon.
It is ordered. so
POMEROY, J., in the concurs result. Pennsylvania, Appellant,
COMMONWEALTH McDADE. John Pennsylvania. Supreme Court Argued 7, 1974. Oct. July 7,
Decided *2 Hickton, Eberhardt, Atty., John Robert Dist. J. L. Pittsburgh, M. Paulick, Attys., John Louis R. Asst. Dist. Tighe, appellant. Atty., for First Asst. Dist. Swem, appel- Dean, Steрhen Pittsburgh,
John P. J. lee. POMEROY, ROBERTS, O’BRIEN, EAGEN,
Before MANDERINO, NIX and JJ. OF THE COURT
OPINION POMEROY, Justice. an order of appealed from has incriminating state suppressing certain
the trial court McDade, appellee, in connection made John ments court, Joey The trial of one with the homicide Wells.1 suppress,2 is hearing appellee’s motion to after a oral made suppressing sued a blanket ordеr all statements of his not been advised defendant because had *3 Arizona, rights by Miranda v. constitutional as mandated prior (1966), 436, 1602, 694 384 16 L.Ed.2d U.S. 86 S.Ct. concerning by police the Wells to initial the interview during slaying; suppressing and all evidence obtained arraignment period the arrest and between defendant’s the was evidence for the additional reason that 118 product unnecessary delay in of Rule of an violation chal suppression of the the 1. It is clear from the record prosecu handicap in its lenged evidence will the Commonwealth the Commonwealth tion of has the It for that reason that the case. is suppression appeal order. Common right to from .the 282, 535, 1, (1975); 1 Wormsley, A.2d n. Pa. n. 337 wеalth v. 461 Bosurgi, (1963). 304 411 Pa. Commonwealth v. A.2d suppress did not com- motion to to be noted that the oral 2. It is Pa.R.Cr.P., Rule ply requirements 304 and the of Rule Turra, Appendix (Supp.1974-75). 19 P.S. Cf. permitted apparently (1971). The court 442 Pa. sup- motion to proceed of an oral on the basis the defendant to press the defendant aware of the fact that because the court was counsel, previous counsel had represented by and that new misplaced it before prepared had become a written motion which could be filed. prosecutor mo- suppression hearing, objected to the At the the objec- untimely, ground neither that tion on the that it was objection but procedures employed below any tion nor other to the pursued appeal. has been Pennsylvania of the Procedure, Rules of Criminal Appendix, P.S. and hence inadmissible under Common Futch, 389, 290 wealth v. 447 Pa. complains only
The Commonwealth incriminating two (1) declarations: a state- ment made friends; to defendant two women and (2) a statement made defеndant a fellow-in- mate while he charge. was incarcerated on an unrelated For the stated, reasons hereinafter that the we conclude except order suppressed was correct as it insofar statement made to the will therefore fellow-inmate. We appropriate affirm with an modification. surrounding
A giving review of the facts of these necessary. body of statements is On June year Joey old lying was discovered in in Wells a creek Township, Allegheny County. Fawn The deceased’s hands were wired behind his there indica- back and were During tions that he been had shot three the sub- times. sequent investigation it John learned that may Joey person McDade have bеen the seen last to have concerning Wells alive. McDade was first interviewed July 13, Wells homicide on time he At that crime; suspected being was not No involved warnings given him, inculpatory Miranda were day statements were made. next the defendant Borough transferred from the station at Allegheny Tarentum County commence Jail *4 serving summary a two-wеek on sentence a conviction for day an unrelated offense. the he taken On was same by county Bureau, detectives to he the where Detective custody approximately in remained for detectives eight and one-half hours.3 detectives, During by
3. this time McDade was the interviewed Bureau, polygraph had lunch in the Deteсtive was administered a test, ap- was supper. and a taken to restaurant It does pear any incriminating during pe- that statements were made this riod. again days later, McDade in- July Three was terrogated. By time had become the focus of the this he preceded by investigation, questioning the and the warnings giving, apparently time, con- for the first of rights, cerning in constitutional which waived his were writing. midnight day, the de- From until of that noon Mill- intermittently, first at questioned fendant the. police discovery of station,4 the the vale then at of scene Township again nearby Munici- body, at the Fawn Wells’ pal Building he to talk for about an where was allowed sister, finally at the Alle- hour with his and and mother gheny During period, County this Detective Bureau. incriminating to the McDade made statements various police, culminating seven-page in a written confession obtained after the Detective Bureau. his return to taking A.M., began of this formal statement at 12:26 July 18, again 1973, prior the to which defendant again rights, he advised of his constitutional which he that waived. He then was told one of the officers slaying. was under arrest for the Wells July At was taken about noon McDade Kensington, request, police, at his to the New own n Pennsylvania pur- friends for home of two women discussing pose them. The defend- of the homicide with in a room permitted with the women ant was to converse one police. After this conversation out of earshot police that wished of the women then told the McDade police change story, that he was afraid but you angry lie with him he told a would “be because gun.” regard Upon being assured to re- angry, requested McDade would not be woman her story her peat had told not advised proceeded He was This he do. friend. Building the Bor- place Municipal took at the This interview Millvale, Pittsburgh, numerous order to avoid ough of near County Allegheny Detective present at newsmen who were Bureau, normally are held. where such interviews *5 rights reciting his this ver- constitutional before altered story. sion his proceeded
The detectives and defendant then Pennsylvania, Saxonburg, wherе McDade indicated had story gun slay- in his altered that the used had might ing found, but, weapon A it be found. later, gun turned out it was not the in the used Wells Upon returning Allegheny County murder. Detec- early July sup- 19, 1972, tive Bureau on McDade made a plementary changes in written statement reflect his earlier narrative.
Notwithstanding inculpatory statements, these various formally charge did not then with the McDade they they Wells murder because lacked believed suffi- corroborating prosecution. cient evidence for a successful July having Accordingly, 28, 1972, on after served fortnight’s summary offense, sentence on the unrelated Allegheny County McDade was released from the Jail go later, allowed to free. Three on Novem- months 1, 1972, ber serving while jail time in un- still another on offense, again related the defendant made an incriminat- ing concerning Joey slaying, Wells this one to a The statement fellow-inmate. was communicated police by by the inmate letter. beginning
As hearing noted at the opinion, of this judge suppressed all by statements made the defendant ground on the properly he had not been advised of rights his constitutional interrogation at the outset of his July 13, court believed permeated the taint thus created “so it defendant’s status was not [subsequent] rights warning.” removed In Commonwealth v. Moody, 429 Pa. 239 (1968), pointed we out that confession aft- “[a] secured person er the adequately involvеd has been advised of his rights constitutional is not ipso rendered inadmissible because an earlier inculpatory confession or admis- facto sion was made in the warning absence of a of these *6 States, (8th F.2d 355 Cir.
rights, v. United 375 Evans (E.D. F.Supp. 1967); Hickey, v. 247 621 United States Pa.1965).” A.2d at also at 239 412. See 429 Pa. Frazier, 443 Pa. 279 Commonwealth v. However, that in order evi- (1971). we said have incriminаting to be ad- subsequent a statement dence of state- the last missible, it “first that must be established origi- exploitation of the the ment or was not confession suf- circumstances under nal and was obtained illegality original taint.” distinguishing purge of the to it ficiently 53, 59, 239 A.2d Banks, Pa. v. 429 Commonwealth States, Wong 371 United (1968). Sun v. also See (1963). L.Ed.2d 471, 83 U.S. S.Ct. sup to contest the chosen has
The Commоnwealth statement which McDade written pression formal of the 18, 1972, pre morning July which early of gave the in the nine hours statement to the by approximately ceded accept premise aas thus must the decision women. We court that the formal statement was give failure of the initial to the Miran vitiated Although warnings July 13. we do not that da havе us, it before apparently particular statement of a se inculpatory As it riously nature. such formed an addi the chain of causality leading link in ini tional from appellant .inform rights to failure of his to tial Miranda admissions to his eventual Common friends. See Whitaker, Pa. 407, wealth urges to that the statements voluntarily the women were in a non-custodial set made ting persons to police. unconnected with fac Such tors, truly if way present, long go to would a course dissipate any previous illegality. taint of Under facts of agree this case, however, we cannot these factors apparently damaging were established. The na ture of McDade’s to under formal statemеnt standably compulsion upon him “come created clean” a by giving disposition the correct details about weapon. light in Realistically, murder of the sur- viewed rounding circumstances, women, re- statement peated in police, was the nature of a mere amend- previous appellant, ment to the invalid which fear, aрparently through out in- to transmit an chose termediary directly. rather than The detectives were purpose requesting aware McDade’s in to see them, two women was discuss the homicide and with place police permission that conversation took while they Although in episode oc- waited next room. this police statiоn, curred outside of a all McDade at police custody times under observation even *7 during the conversation. We conclude that thus proving Commonwealth not did sustain its burden of that the purged statement to the women was of the taint prior illegal of the statement; hence the new statement properly suppressed. was Betrand, 381, In rе 451 Pa. (1973). presented regard
A different situation is in incriminating given by later statement the defendant to his fellow-inmate 1, on November This took place three custody months after his release from police without any of intervention sort. A statement ob tained under such circumstances cannot be said to be still by affected either the initial failure of the to ad rights vise the of defendant his Miranda or the subse quently obtained tainted statements. Westover v. Cf. States, 1602, 436, 496, United 384 U.S. 86 16 S.Ct. L.Ed. 694, (1966); 2d Bayer, 736 United States v. 331 U.S. 532, 1394, concluding 67 S.Ct. In 91 L.Ed. contrary, tjiat suppression think judge we erred. deal, finding finally,
We must with below product that the November statement was the of an un necessary delay of between the time the defendant’s ar arraignment. rest and a The court found as fact approximately that the defendant was at arrested in an told July he was when on
12:80 A.M. pre arrest. under terrogating that he was detective April until arraignment come about liminary did on these facts Based than nine months later. more exclusionary an rule light concluded, in of the court all Futch, supra, v. in nounced Commonwealth including the arraignment, evidence before obtained suppressed fellow-inmate, must be made to delay. product as the of view, misperceived arrest was
In our the court which of purposes one for the critical of Rule Rules application Procedure, and hence also for the Criminal The arrеst the court found Futch. negated place July re- or have taken 1972 was police, with the dis- scinded when the after consultation office, forego prosecution of attorney’s trict decided to the defendant at that time due to the absence corro- borating rea- evidence, noted It was for that above. appellee arraigned other- son that neither nor processed administratively in connection wise upon slaying, the conclu- but Wells instead released summary At that sion sentence on the conviction. custody point longer and he remained liberty unrelated offense. at until his arrest on another *8 during that that It on offense was incarceratiоn made the fellow-inmate. McDade statement was to slaying April 23, not until rearrested for the Wells 1973 preliminarily arraigned. day For and on that same that purposes, the critical time was Rule 118 Futch and arraignment that Be- on date. between his arrest and made cause the statement to the fellow-inmate was suppressing it during period, there bаsis ground unnecessary on the delay. to is modified
The order of the court so operation appellee the statement of exclude from its modi- As so to his fellow-inmate on November 1, fied, the order is affirmed.
423 NIX, J., dissenting opinion. filed a JONES, J., participate C. did not in the consideration or of this case. decision
NIX, (dissenting). Justice agree sup-
1 majority opinion revеrsing pression appellee’s inmate. statement to his fellow However, improper suppress I believe it was also to appellee’s the statements to friends. made women two majority giv- concludes that because statements en to the women “in were of amendment nature [s] previous . . there . [the] [inadmissible] was a ‘real and direct causal between the connection’ majority two.” Moreover the that the statement finds women was tainted because initial statement appellee “compulsion” felt a to “come clean.” my
In totally view the to the women were statements voluntary independent illegality and the initial exclusionary impropеr rule curb conduct should applied not be to these statements. it important
First
is
to note that
is not a
this
case
where the friends to whom the statements were made
acting
compare
were
police,
behalf of the
Escobedo v.
Illinois,
478,
1758,
378 U.S.
84
12
S.Ct.
L.Ed.2d 977
(1964);
201,
States,
Massiah v. United
377
84 S.Ct.
U.S.
1199,
(1964).
appel
Furthermore the es- has failеd to appellee’s tablish a direct ini- causal connection between the women. tial statements to and his heavily appellee felt com- majority the fact that relies pelled to intermediaries in order to the women as use initial regarding in his misstatements “come clean” ap- contrary the record reflects that statement. theOn pellee speak of the to not because wished to these women he wished to obtain statement, earlier rather because but at that guidance concerning predicament advice and to tell the is that he wished time. There no evidence voluntarily clean”) initi- (i. at truth “come the time e. or that he with the wоmen ated the conversation only police speak It was to to the women. coerced told that the were after occurred this conversation mis- certain to and to correct that he wished be candid prior in his statement to them. statements Greene, A.2d In Commonwealth v. Pa. in majority opinion (1974) the writer appeal stant wrote: aft made appellant’s'second
“. statement was . . hours, differ lapse one in a er a of one and half time officer; fac physical setting, ent a different recognized significant in cleans tors which we have at ing any an earlier statement.” taint from Id. Mitchell, Pa. citing 461, 285 were
Here the evidence reveals statements friеnds; voluntarily at the home of two made only friends who were statements made these were of, agents employed by police; the state- nor and that inadmissi- were made at least nine hours after the ments police. is evi- ble statements to the Moreover there any police the state- dence that there coercion before ap- made; is there that when ments were nor evidence pellee was moti- made the statements to these women he police. In- vated to do so initial statement and be the desire to correct former misstatements deed suggests meeting candid after further these friends *10 speaking solely his motive in with them was to obtain advice and counsel.
Under applying these I facts find an basis ex- clusionary designed illegal rule to deter conduct. Accordingly portion majority I dissent from that opinion upholds which of the statements to the two women. COSTIGAN, Register
Robert W. Philadelphia of Wills of County Orphans’ and Clerk of the Court Division of the Philadelphia Court of Common County, Appel- Pleas of lant,
PHILADELPHIA FINANCE DEPARTMENT EMPLOYEES STATE, LOCAL AMERICAN FEDERATION OF EMPLOYEES, AND
COUNTY MUNICIPAL AFL-CIO Costa, Charles John Santore and Trustees ad Litem. Supreme Pennsylvania. Court of
Argued Nov. 1974.
Decided June