Lead Opinion
The Commonwealth appeals an order entered on June 16, 1987, wherein appellee, William “Country” Melson, was granted a new trial following a jury’s finding that he was guilty of first degree murder. The trial court issued the order for Melson’s new trial based upon post-trial motions which alleged that prior counsel was ineffective in failing to move to suppress identification testimony obtained through
The facts found by the trial court are as follows. Melson was arrested on August 24, 1984, by Bucks County detectives and charged with conspiracy, robbery and murder in connection with the death of Robert Malarchik. The arrest followed Melson’s appearance at the Bucks County Courthouse pursuant to a subpoena. The subpoena had been issued to compel Melson to appear and testify at the sentencing hearing of Eugene Banks, who had already been convicted of Malarchik’s murder. The police had suspected that Melson was a co-conspirator, but did not have sufficient evidence to arrest him. They subpoenaed him for Banks’ sentencing, hoping to gain additional evidence upon which to base such an arrest. The prosecutor did not expect to have Melson testify at Banks’ sentencing.
Melson was aware that he was a prime suspect since he had been interviewed four days prior to the sentencing hearing. He had refused to answer questions without first consulting an attorney and had attempted to obtain advice from Banks’ counsel before he appeared at the courthouse for the sentencing. He was not successful in reaching Banks’ attorney. Melson went to the courthouse, but decided to leave shortly after he arrived. Detectives advised him that he could not leave. No one at the courthouse questioned Melson about his willingness to testify or discussed the substance of any proposed testimony.
After the sentencing proceeding began, two detectives ordered Melson into the courtroom. They escorted Melson into the courtroom with a detective on each side. At least one of the detectives held him by the arm. He was seated prominently in the front of the courtroom. One of the detectives was publicly known to have been involved in the investigation of the Malarchik murder. Shortly after Mel-son appeared in the courtroom, the deputy assistant district attorney gestured toward Banks, and Banks nodded his head. At that point, Melson was advised that he was being
Banks’ sentencing was then delayed since he decided to testify on behalf of the Commonwealth against Melson. Banks named Melson as a co-conspirator and participant in Malarchik’s murder. Banks’ plea agreement provided that his sentences would run concurrently, that he would remain in Bucks County prison rather than a state correctional institution until sentencing, and that a favorable letter would be written to the parole board by the district attorney’s office.
The events surrounding the murder are as follows. Banks had been a partner with Malarchik in a swingers sex club known as “The Woodlands” in Bucks County, Pennsylvania. Banks suspected that Malarchik was under-reporting the number of patrons and, thus, retaining more than his share of the profits. Banks asked his then-girlfriend, Frances Markowitz, to count the automobiles in the parking lot on several weekend nights. The count of automobiles confirmed Banks’ suspicions. Banks originally intended only to rough-up Malarchik. He contacted Melson and another unnamed co-conspirator to assist him, and agreed to provide them with methamphetamine, as he had in the past, in return for their help.
Melson and Banks met in the club parking lot on the night of July 10, 1982. Fran Markowitz was with Banks and saw Melson briefly. She remembered that he drove a white Lincoln Continental and that he visited the club briefly in order to identify Malarchik.
Later, the conspirators agreed to poison Malarchik by using cyanide in the hope that his death would appear to have been caused by a heart attack. Banks provided his accomplices with cyanide, a syringe, handcuffs and an unregistered gun. Malarchik resisted, the syringe with the cyanide was broken, and Malarchik instead was shot, strangled, and finally drowned by immersion in a tub. Fran Markowitz assisted Banks in disposing of Malarchik’s body.
At issue is trial counsel’s failure to seek suppression of Markowitz’s in-court identification and testimony. The burden of establishing ineffective assistance of counsel rests on the defendant, as counsel is presumed to be effective. Commonwealth v. McNeil,
Upon careful review of the record, the parties’ briefs and the trial court opinion, we find that the trial court properly
Initially, we will discuss the invalid use of the subpoena which compelled Melson’s attendance at Banks’ sentencing. It was not intended to produce his testimony at the sentencing, but was designed to induce either Melson or Banks to cooperate with the Commonwealth after they observed each other. The prosecutor admitted as much. Thus, the Commonwealth’s primary goal was to use a confrontation to gain evidence in a criminal investigation. Furthermore, at the time, Melson was a prime suspect in the investigation. He had been interviewed four days earlier and had refused to testify at the sentencing without first consulting his attorney. He had not yet consulted the attorney when he was compelled to appear at the courthouse and subsequently was led into the courtroom by detectives. The dominant purpose of the subpoena was to engineer a confrontation between Commonwealth witnesses and suspects in order to gain either additional evidence or the identification of a co-conspirator, in this case, Melson. The subpoena achieved this purpose.
This invalid use of the subpoena eventually resulted in Markowitz’s identification of Melson as a co-conspirator. Further, her identification would not have occurred without this engineered confrontation since she previously had been unable to identify him through a photographic array which contained his picture. Since her identification was the fruit of the impermissible use of the subpoena and since she had no independent basis to identify Melson, her courtroom identification should have been suppressed. Trial counsel had no reasonable basis in failing to seek suppression of the identification.
We also agree that Melson was placed under arrest prior to his entry into the courtroom. Accordingly, he had the right to counsel at that time and before he was brought into the courtroom for the purpose of identification by Banks or Markowitz. When Melson indicated that he intended to leave, two detectives prevented him from doing so and then escorted him to the sentencing courtroom. We view this action as placing Melson in custody prior to the identification, and we disagree with the Commonwealth’s characterization of this as an investigatory non-custodial stop similar to a traffic stop. See Commonwealth v. Leninsky,
In view of all the circumstances, we conclude that Melson was in custody from the time he appeared at the courthouse. He was not free to leave. An arrest has been defined as any act by which an arresting person indicates an intent to take an individual into custody and subject him to control of the arresting person. Commonwealth v.
At judicial criminal proceedings following arrest, a defendant has the right to the presence and advice of counsel. See Moore v. Illinois,
Finally, we agree with the trial court’s conclusion that the identification by Markowitz was the result of impermissibly suggestive proceedings. She saw Melson being led into the courtroom by detectives involved with the murder investigation, and placed in a prominent front seat. In addition, Melson was the only black male in the courtroom, and she knew that the co-conspirators were black. Even though Fran Markowitz identified Melson on her own and merely was encouraged, not required, to attend or told to look for a co-conspirator in the courtroom, the manner in which he was brought into the courtroom was impermissibly suggestive.
An in-court identification following a suggestive pretrial identification is only admissible if the Commonwealth can show by clear and convincing evidence that the identification has an independent origin to purge the pri
We can see no reasonable basis for trial counsel’s failure to seek suppression of this identification testimony, since the identification was uncounselled and impermissibly suggestive. We also note that “[t]he failure to file a suppression motion may be evidence of ineffective assistance of counsel.” Commonwealth v. Ransome,
Accordingly, we affirm the order granting appellee a new trial.
Notes
. We note initially that we agree with the trial court that although appellee raised numerous issues of ineffectiveness of trial counsel, only the issues discussed in the text merit detailed consideration. (Trial court opinion, at 2.) His other claims are frivolous.
Dissenting Opinion
dissenting:
I respectfully dissent. I agree with neither the majority’s statements of the relevant facts, nor its statement and application of the controlling law. I find that William Melson was properly convicted of murder, and that the majority err in reversing his conviction.
FACTS AND PROCEDURAL HISTORY
Eugene Banks and Robert Malarchik entered into an illicit partnership to run a “swingers sex club” known as “The Woodlands” in Bucks County, Pennsylvania. Sometime after operations commenced, Banks became concerned that he was not receiving his fair share of the profits. Banks suspected that Malarchik was under-reporting the number of patrons on weekends and so he asked his then girlfriend, Fran Shenkin Markowitz, to go to the club and count the cars in the parking lot on several weekend nights. Mrs. Markowitz’ reports confirmed Banks’ suspicions and fueled his anger.
After first considering “sendpng] someone over to rough him up, beat him up, break an arm or leg, whatever,”
Appellee and the unnamed co-conspirator left. Because little money was found at the club, Banks agreed to compensate them for their services by making methamphetamine for them. Banks stayed at the scene and attempted to remove all evidence of the murder at the club and then moved Malarchik’s body to a factory building he owned. That night Banks showed the body to Mrs. Markowitz and had her help him place the body in a 50 gallon steel drum and clean up the pool of blood which the body had left on the floor. Banks dipped the gun used to shoot Malariehik into corrosive acid and then placed it in the steel drum with Malarchik’s body. Banks then transported the sealed drum to a friend’s residence from whence it was to be taken later for burial.
Banks was arrested several days later, after Malarchik’s decomposing body was discovered in the steel drum. Mrs. Markowitz was granted immunity and testified against Banks. Throughout the trial process, Banks contended that he had only gone to the club to confront Malarchik and that “Country” and another man who went with him had killed Malarchik without direction from him. However, Banks resolutely refused to identify his co-conspirators. Following a jury trial, Banks was convicted of first degree murder and various related offenses.
Through independent sources the police began to suspect that appellee was Banks’ co-conspirator who had previously been described only as “Country.” Appellee’s nickname was Country and he had access to the type of car known to have been driven by the co-conspirator (a white Lincoln Continental). When questioned by police, appellee acknowledged that he knew Banks but declined to speak further until he consulted an attorney. Appellee did not expressly deny knowledge of or participation in the murder. The
When Banks saw appellee at his sentencing hearing, he decided to cooperate with the prosecutors against appellee in the hope that his cooperation might result in leniency at his sentencing. Mrs. Markowitz, who had also been subpoenaed to testify at Banks’ sentencing, later reported to the police that appellee, whom she had seen in the courtroom at Banks’ sentencing, was the same man whom she saw Banks meet on July 10, 1982, and whom Banks had identified to her as his co-conspirator “Country.” Mrs. Markowitz identified appellee as such at appellee’s trial.
A jury found appellee guilty of first degree murder and related offenses. After his conviction, new counsel was appointed to represent appellee. In supplemental post-verdict motions, new counsel raised several allegations of ineffective assistance of trial counsel, prosecutorial misconduct and trial error. An evidentiary hearing on those claims was held on May 15, 1986. On January 16, 1987, the trial court filed an opinion which concluded that trial counsel had been ineffective for failing to file a pre-trial motion to suppress all identification testimony from Mrs. Markowitz. The Commonwealth appeals.
I. STANDARD OF REVIEW
The burden of establishing ineffective assistance of counsel rests upon the defendant, as counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil,
Upon careful review of the record, the briefs of the parties and the opinion of the trial court, I find that the trial court, and the majority herein, erred in concluding that appellee met his burden.
In reviewing a decision of a trial court on a suppression motion we are bound by findings of fact which are supported by the record, but not by the trial court’s conclusions of law. See Commonwealth v. Carelli, supra, 377 Pa.Su
II. ALLEGED SUGGESTIVENESS OF THE IDENTIFICATION
The trial court specifically found that: the confrontation between Mrs. Markowitz and appellee was not contrived; Mrs. Markowitz was asked to be present at Eugene Banks’ sentencing in order to present rebuttal testimony in case Banks lied in his testimony at sentencing; and, Mrs. Markowitz was not told that appellee or any suspect would be in the courtroom. (Trial Ct. Op. at 8). The trial court, nonetheless, found that an impermissibly suggestive encounter occurred because appellee was escorted into the courtroom by physical force, he was the only black man in the courtroom at the time, and he was seated between two detectives known to be associated with the Banks investigation.
Initially, I note that the trial court’s findings of fact are only partially supported by the record. The trial court’s finding that appellee was brought into the courtroom by “physical force” is misleading, if not simply unsupported. The only evidence of record regarding the manner in which appellee entered the courtroom was appellee’s testimony that, “... there was one detective on each side. One had— he didn’t have a full grip on my arm, but he let me know which way to go. He had hold of my arm, yes.” (N.T. 5/15/86 at 16). (Emphasis added). Thus, the “physical force” was slight at most. Similarly, the only evidence as to whether appellee was the only black man in the courtroom was as follows:
Q. And did you happen to observe whether there were any other black people in the courtroom when you came into the courtroom ?
A. To the best of my knowledge I was the only black person in that particular courtroom.
More important than the above qualifications and objections to the trial court’s general findings of fact, however, is the fact that none of the arguably suggestive factors listed by the trial court has in any way been linked to Mrs. Markowitz’s identification of appellee. Appellee declined to subpoena Mrs. Markowitz to testify at the evidentiary hearing; instead, appellee relied upon the transcript of her trial testimony and the copy of the report of her call to the police after Banks’ sentencing hearing. (N.T. 5/15/86 at 71, 107-08). Neither Mrs. Markowitz’s trial testimony, nor the police report support a finding that her identification of appellee was the product of undue suggestion.
Indeed, the record strongly supports a contrary conclusion. The trial court specifically accepted the Commonwealth’s explanation that Mrs. Markowitz was not subpoenaed for the purpose of identifying appellee and that nothing was done to focus her attention on appellee. (Trial Ct. Op. at 8; see also N.T. 5/15/86 at 78; N.T. 1/14/85 at 67-70, 78-82). Neither her trial testimony nor the police report indicate the least awareness of the arguably suggestive factors indicated; rather, she specifically testified on cross-examination at appellee’s trial:
*156 Q. Really, as a matter of fact, [you] had no reason to even pay any attention to him, did you?
A. When, in the courtroom? No, I didn’t.
Q. At the Woodlands.
A. I saw him get out of the car. Excuse me, sir. When an incident such as that happens things really tend— certain parts really tend to be embedded in your memory.
Q. Absolutely.
(N.T. 1/14/85 at 82) (emphasis added); see also (N.T. 1/14/85 at 69). Her report to the police indicated that appellee had been seated in front of Mrs. Markowitz in the courtroom but had looked back at her several times. (Police Report 8/27/84). This is the only indication in the record of any factor calling appellee’s presence in the courtroom to Mrs. Markowitz’s attention. There is no indication in the record that Mrs. Markowitz saw appellee enter or leave the courtroom, that she noticed whether or not other blacks were present in the courtroom, or that the detectives had also turned around so that she could see the faces of the detectives seated in front of her so as to be able to identify them as being connected with the Banks case, if indeed they were known to her as being part of that investigation.
I find that the record does not support findings or conclusions that Mrs. Markowitz’s identification of appellee was the product of undue suggestion. Rather, the record indicates that an unplanned confrontation resulted in a spontaneous identification. Cf. Commonwealth v. Butler,
The trial court held, alternatively, that Mrs. Markowitz’s identification of appellee must be suppressed because the confrontation violated appellee’s Sixth Amendment right to representation of counsel at post-arrest identification procedures. I find that appellee was not under arrest or subjected to a custodial detention; alternatively, I find that the right to counsel is not violated by the absence of counsel at a post-arrest, unplanned encounter which results in a spontaneous identification.
A.
The events preceding Mrs. Markowitz’s encounter with appellee may be summarized as follows. Appellee was issued a subpoena which directed him to appear for the purpose of giving testimony at Banks’ sentencing hearing. Although appellee arrived and checked in at the courthouse, he was later stopped by a police detective when (by appellee’s own admission) he was in the process of leaving the courthouse with the purpose of violating the subpoena. (N.T. 5/15/86 at 45-46; see also N.T. 5/15/86 at 14). The detective informed appellee that if he was subpoenaed, he was not free to leave the courthouse. At that point, appellee did not feel (subjectively) free to leave. (N.T. 5/15/86 at 16). When the time for Banks’ hearing arrived and appellee was not present in the appropriate courtroom, the assistant district attorney directed the detectives to find appellee and bring him to the courtroom. (N.T. 5/15/86 at 94-95). The detectives found appellee in the law library, and informed him that it was time for him to come upstairs to Banks’ sentencing hearing. (N.T. 5/15/86 at 15-17). The detectives then escorted appellee to the courtroom with the minimal force indicated (i.e. a partial grip on appellee’s arm), directed him to a seat, and sat beside him. (N.T. 5/15/86 at 16-17). I do not find that these facts demonstrate a custodial detention or a formal arrest.
Encounters with police may be classified as mere encoun
A “mere encounter” is one which does not involve a seizure of the person. A seizure of a person sufficient to trigger the protections of the Fourth Amendment occurs “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” Michigan v. Chesternut,
The' trial court’s finding that appellee was not free to leave from the time the detectives came to the library to the time appellee was formally arrested is supported by the record. I agree that a reasonable person would not feel free to leave if he were told by a police detective that he could not leave the courthouse, was later escorted to a courtroom by police detectives, and was then seated between two police detectives. Hence, Fourth Amendment and Article I, Section 8 protections apply.
The mere fact that an individual is subjected to a stop and a period of detention during which the individual is subject to the control of the police and is not free to leave does not render a detention necessarily “custodial.” “While a suspect may certainly walk away from a mere encounter with a police officer, every traffic stop and every Terry stop involves a stop and a period of time during which the suspect is not free to go but is subject to the control of the police officer detaining him.” Commonwealth v. Ellis, supra,
Though Terry, Berkemer and Bruder involved brief detentions, it is important to recall that:
*160 In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the [suspect]. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second guessing.
Commonwealth v. White, supra,
Indeed, police detentions become “custodial” only when under the totality of circumstances the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest. See Commonwealth v. Gonzalez,
Among the factors which should be considered in determining whether a detention is custodial are: the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of the detention (restraints utilized); the show, threat or use of force; and the investigative methods used to confirm or dispel suspicions. Commonwealth v. Ellis, supra,
The supposed, yet uncommunicated, subjective intent of the detectives to restrain appellee beyond merely ensuring his compliance with the subpoena is not relevant to a determination of whether a reasonable person subjected to the same treatment as appellee could reasonably have concluded that he was being taken into custody or being placed under arrest. See Commonwealth v. Ellis, supra,
There was a reasonable basis for the detention, i.e, appellee had indicated an intent to leave the courthouse in order to attempt to illegally evade the subpoena, and was not in the appropriate courtroom when the time for the hearing arrived. The detention occurred in a courthouse and primarily in open court. Though appellee was transported (presumably against Ms will), the distance was minimal (from the law library to the courtroom) and was for the purpose of ensuring appellee’s appearance before the court in compliance with the subpoena. The method of detention involved minimal force, is. a partial grip on appellee’s arm and sitting beside the appellee. No excessive restraints were used. No interrogation of appellee took place during the detention. Finally, the duration of the detention was circumscribed by its legitimate purpose; probable cause for the further detention arose before the legitimate time period for compliance with the subpoena expired.
I find that a wide chasm separates the use of minimal force to ensure that a wandering witness complied with a subpoena and the incommunicado detentions and “third degree” interrogations which powered the constitutional decisions which appellee attempts to invoke here. Cf. Berkemer v. McCarty, supra,
Based upon the foregoing, I find that the trial court erred in concluding that appellee was “under arrest” or “in custody” at the time he was escorted from the law library to the courtroom where Banks’ sentencing was to occur. Because appellee was not under arrest or in custody, his Sixth Amendment suppression claim must fail. Furthermore, as appellee has failed to establish the merit of his suppression claim in this respect, counsel may not be deemed ineffective. Commonwealth v. Carelli, su6pra; Kitrell v. Dakota, supra.
B.
Alternately, I find that even assuming appellee was under arrest or in custody, no violation of appellee’s Sixth Amendment rights occurred. While a suspect is entitled to the presence of counsel at any post-arrest identification procedures (see generally Commonwealth v. Minnis,
IV. VALIDITY OF THE SUBPOENA
The trial court also concluded that the identification evidence must be suppressed as the tainted fruit of a “sham” subpoena. The trial court reasoned as follows:
Based on the testimony adduced at the evidentiary hearing, we are satisfied that the process used to compel defendant’s appearance at Banks’ sentencing was not a true subpoena. In United States v. Caputo,
The government properly may use a host of ploys in furtherance of an undercover investigation, but issuance of a spurious order of Court obviously exceeds the bounds of propriety. It reflects upon the integrity of the judicial process; when the government issues a sham subpoena, and it becomes known that it is a sham, it may appear that the Court has improperly participated in the government’s investigation. Such an appearance could impair the public’s confidence in the Court’s role as an impartial adjudicator. Id. at 1492 (footnotes omitted).
Here, the prosecutor’s conduct in issuing the ‘subpoena’ was improper and amounted to prosecutorial misconduct.
(Trial Ct.Op. at 15-17). (Emphasis in original). I cannot agree.
The trial court’s reliance upon United States v. Caputo, supra, is misplaced. First, Caputo is materially distinguishable on its facts. The “sham” subpoena in Caputo was a sham in that it was issued to the pseudonymous identity of an undercover FBI agent rather than his true identity, in order to preserve his cover. No such “sham” exists in this case. Moreover, the excerpt from the Caputo decision relied upon by the trial court was expressly disapproved by the Third Circuit of Appeals when Caputo was reversed (sub. nom.) in United States v. Martino,
B.
Appellee contended in the trial court that the prosecutor had used the subpoena for the sole purpose of parading appellee before a potential witness, i.e. Mrs. Markowitz. Appellee argued in support of this contention that the pretextual nature of the subpoena was demonstrated by the fact that the prosecutor had no reasonable expectation that appellee would agree to testify at Banks’ sentencing, and that even if he testified as desired, such testimony would have been merely cumulative of testimony available from other more cooperative witnesses. The trial court, however, found that the prosecution had not contrived appellee’s encounter with Mrs. Markowitz, thus, specifically rejecting that claim. (Trial Ct.Op. at 8).
C.
Though the trial court found the subpoena to be a sham, this decision was not based upon a finding that the sole or even dominant purpose of the subpoena was “improper.” Rather, the trial court’s characterization of the subpoena as a sham was based upon the fact that the prosecutor’s purpose for having a subpoena issued to appellee was not solely to secure appellee’s testimony at Banks’ sentencing. (Trial Ct.Op. at 16). The trial court ruled, essentially, that the mere presence of an ulterior motive or a collateral
Federal courts have consistently held that prosecutorial misconduct is established when it is established that the sole or dominant purpose for the issuance of a subpoena is improper. See Payden v. United States,
There is scant caselaw in Pennsylvania regarding the application of the sole or dominant purpose test to claims of prosecutorial abuse of the subpoena process. In In re Miller, — Pa.Cmwlth. —,
The issue before the Court in the above two cases, which by agreement of the parties were consolidated for hearing and disposition, is whether the Pennsylvania Crime Commission (Commission) has abused its proper investigating authority by here using its subpoena power to supply information to the District Attorney of Delaware County to implement the prosecution of respondents. The able attorneys for respondents do not question the relevance of the information sought but they base their case on what they consider to be a showing that the direct purpose is to develop for the District Attorney a criminal case against respondents.
We do not believe the respondents have established their cases. The Commission’s one witness testified as to the proper purpose and denied any association with the District Attorney in regard to supplying evidence to prosecute respondents. The respondents’ witnesses, including a former director of the Commission and a former Assist*168 ant District Attorney of Delaware County, both testified that there had been no communications between the District Attorney’s Office and the Commission regarding developing evidence to prosecute respondents.
Respondents would have us draw an inference from the fact that upwards of 20 subpoenas have been enforced by this Court on the request of the Crime Commission all of which dealt with the relationship the subpoenaed witnesses had with Frank Miller — that the sole or primary purpose was to develop a criminal case against Frank Miller. Especially in view of the direct and positive evidence to the contrary in respondents’ own case, no such inference can be drawn.
Recently, in Commonwealth v. Lang, 517 Pa. 390,
We find no merit in Lang’s assertions that federal case-law requires us to hold that the procedures which we approve today are in fact unconstitutional [....] Furthermore, statements in United States v. Moss,756 F.2d 329 , 332 (4th Cir.1985) and In Re Grand Jury Proceedings (Appeal of Johanson),632 F.2d 1033 , 1040 (3d Cir., 1980), which forbid the continuance of grand jury investigations for the sole or dominant purpose of obtaining evidence against a defendant once he is indicted, we regard as limited to the federal schema and as inappropriate to Pennsylvania.
The question of whether the sole or dominant purpose test is to be adopted as the gauge for reviewing claims of prosecutorial abuse of the subpoena process in this Commonwealth thus remains a question of first impression. Upon review of the federal authorities, I find that correctly applied, the sole or dominant purpose test is an appropriate gauge for determining whether corrective action is required to sanction and deter prosecutorial abuses of the subpoena process. I note, however, that there is an important difference between the lawful anticipation of a legitimate collateral benefit and an abuse of the subpoena process solely or dominantly for improper purposes.
When the sole or dominant purpose of a subpoena is to harass generally or to encroach upon an individual's constitutional rights, prosecutorial misconduct is established. See e.g. United States v. Westinghouse,
In this case, there was a legitimate purpose to subpoena appellee. The nature and circumstances of the offense were valid concerns at Banks’ sentencing hearing; hence, the Commonwealth was entitled to subpoena witnesses to
The prosecutor in this case candidly admitted that he anticipated and desired a collateral benefit to be derived from the subpoena issued to appellee, i.e. that the impact on Banks or appellee of their discovery that the prosecutor had drawn the connection between them might cause either or both to decide to cooperate with the prosecution in the hope of gaining leniency at sentencing. Contrary to the majority’s assertion, the prosecutor did not admit or even suggest that he would not have called appellee to testify if Banks had not decided to cooperate. Rather, the prosecutor repeatedly stated that appellee’s prior statements made the prosecutor hopeful that “when zero hour arrived” appellee would choose to cooperate. (See N.T. 5/15/86 at 76-78, 84-85, 89-90). The most that could accurately be said in this respect was that the prosecutor conceded hopeful optimism that one of the two of them would decide to cooperate, and that if Banks cooperated then appellee’s testimony
I find nothing improper per se about confronting a suspect with potentially inculpatory facts or evidence. To the contrary, the decision of when and how to confront a suspect with such facts or evidence is appropriately a matter of police and prosecutorial discretion and tactics. Moreover, so long as a legitimate basis exists to subpoena the suspect as a witness in a proceeding related to the crime of which he is suspected, I find nothing improper about the use of such a court proceeding to heighten the dramatic and psychological effect of such a confrontation. I perceive this to be a legitimate exercise of sound tactics, rather than an abuse of the subpoena process. I note that unconstitutional coercion (e.g. “the third degree”) is highly unlikely to occur in such a setting. Finally, I note that as long as a legitimate purpose for issuing a subpoena exists, I would find that the intensity of a prosecutor’s desire for a legitimate collateral benefit cannot render the subpoena invalid as an abuse of process. It is only when the sole or dominant purpose is improper that an abuse of the subpoena process is established.
D.
Assuming, arguendo, that the use of the subpoena to compel appellee’s attendance at Banks’ sentencing hearing was improper, it doés not follow that Mrs. Markowitz’s fortuitous, wholly unplanned, and unanticipated identification of appellee must or should be suppressed.
The exclusionary rule generally prohibits the use of physical or testimonial evidence derived as the direct and proximate result of unconstitutional conduct. See Murray v.
Whether and to what extent there may be a state exclusionary rule in Pennsylvania arising from the Pennsylvania Constitution is uncertain in Pennsylvania. See Commonwealth v. Montgomery,
a prophylactic exclusionary rule is applied only in extreme eases where all other attempts to secure compliance have proven unsuccessful. See generally Mapp v. Ohio,367 U.S. 643 , 651-52,81 S.Ct 1684 [1689]6 L.Ed.2d 1081 (1961). In this area there has been no showing of widespread flagrant disregard to justify formulation of such a rule at this time.
The same may be said here. All that appears from this record is that a single isolated occurrence of an arguable abuse of the subpoena process by a prosecutor resulted in a wholly fortuitous and unanticipated identification of appellee. Even if I were to assume that the subpoena process had been abused, setting appellee free would not appear to be necessary to prevent use of the subpoena process for such purposes in the future. The cost of applying an exclusionary rule here would greatly exceed any benefit to be anticipated.
Moreover, the evidence challenged here is an eyewitness identification of the appellee. Our Supreme Court has held that an illegal arrest of a defendant which merely provided the means for a confrontation more promptly than might otherwise have occurred did not require suppression of the resulting identification. See Commonwealth v. Garvin,
E.
Based upon the foregoing, I conclude that the trial court and the majority herein err in characterizing the subpoena as a sham, and in concluding that the identification evidence of Mrs. Markowitz was subject to suppression as the tainted fruit of a sham subpoena. As appellee failed to establish the underlying merit of his suppression claim in this respect, counsel cannot be deemed ineffective. Commonwealth v. Carelli, supra; Kitrell v. Dakota, supra.
V. REASONABLE BASIS FOR NOT SEEKING SUPPRESSION
Assuming, arguendo, that the underlying merit of the suppression claim had been established, I would find that an objectively reasonable basis for not seeking the suppression of Mrs. Markowitz’s identification evidence appears in the record. Succinctly, Mrs. Markowitz’s identification evidence was subject to effective impeachment and in fact arguably promoted the defense theory that Banks had made up the story regarding the co-conspirators to shift the responsibility for the actual killing away from himself.
Defense counsel made effective use of this line of reasoning by impeaching the identification evidence of Mrs. Markowitz at trial. (N.T. 1/14/85 at 70-107). Moreover, by presenting evidence that Mrs. Markowitz had little opportunity to view appellee at the July 14, 1982 meeting in the club parking lot, and by developing evidence regarding the means and motive for Banks and Mrs. Markowitz to fabricate her identification evidence, counsel was able to cast doubt upon Mrs. Markowitz’s credibility in general. (N.T. 1/15/85 at 50-56 (closing argument)). A thorough Kloiber
Had the identification evidence been suppressed, the cross-examination of Mrs. Markowitz might not have been as effective. Counsel could not have raised the issue of the incredibility of Mrs. Markowitz’s identification evidence to impeach her without opening the door for the prosecutor to address the entire matter on re-direct, thereby nullifying any suppression order. Moreover, the trial court could not have issued its thorough Kloiber charge if the identification evidence had been suppressed. Her other testimony {which was also quite damaging) might then have been afforded greater weight. Thus, a reasonable tactical basis existed for not pursuing suppression of the identification evidence.
Prior counsel, however, testified at the PCHA hearing that he could not recall why he did not file a suppression motion with respect to Mrs. Markowitz’s testimony. He added, however, that he considered her testimony readily impeachable, and that he was primarily concerned with the damaging effect of the testimony anticipated from appellee’s erstwhile friend, Willis “Hodgie” Yarborough. (N.T. 5/15/86 at 162-69). The mere fact that counsel could not recall his subjective motivation for a particular course of conduct, however, did not require a finding of ineffectiveness.
The ultimate question to be addressed in every ineffectiveness claim is whether counsel’s conduct denied the defendant a fair trial. If competent counsel could have pursued the challenged course of conduct for reasons designed to effectuate defendant’s interests, the defendant cannot be
In the instant case, the challenged conduct, i.e. failing to pursue the suppression motion, could reasonably have been adopted by competent counsel as a matter of sound trial tactics. I emphasize, however, that in the instant case the mere existence of a reasonable basis for not pursuing the suppression motion, i.e. the desire to use the evidence to impeach the witness, would not have established the objective reasonableness of prior counsel’s conduct had counsel not pursued the impeachment of the witness with that evidence at trial. Counsel did so in this case (N.T. 1/14/85 at 70-107); and so, appellee’s ineffectiveness claim must fail.
CONCLUSION
Based upon the foregoing, I dissent. Appellee’s underlying suppression claim is without merit; moreover, an objectively reasonable basis for not pursuing a suppression motion is apparent. Hence, the ineffectiveness claim should have failed, the order of the trial court should have been reversed, and the case should have been remanded for sentencing.
. (See N.T. 1/10/85 at 15, testimony of Eugene Banks).
. I note that I agree with the trial court that although appellee raised numerous allegations of ineffectiveness, only the issues addressed by the trial court and discussed infra, merit detailed consideration in this opinion. (Trial Ct.Op. at 2). Appellee’s other claims were in fact wholly frivolous.
. Such encounters with police are also commonly referred to as Terry Stops, traffic stops, investigatory detentions, and intermediate detentions.
. See also Pennsylvania v. Bruder, 488 U.S. —,
. Accord United States v. Montoya De Hernandez,
. Examples of "totality of the circumstances” reviews may be found in Commonwealth v. Gonzalez, supra; Commonwealth v. Ellis, supra,
. See also United States v. Scott,
. As appellee had not indicated an express intent to invoke the Fifth Amendment, neither the rule nor reasoning of Commonwealth v. Bellachio, 296 Pa.Super. 468,