Commonwealth v. Richards

kind regardless fee agreements all contingent or case. claim contingent in all present for abuse is The potential It is not and client. a lawyer fee between agreements compensation, workmen’s peculiar personal injury, unreason- 202(f) suits. Rule or land condemnation named cases other discriminates between ably as is unconstitu- such, and, fee contingent agreements, provision the offensive I believe, however, tional. The can from the Rule. be stricken is severable fee contingent agree- that all then require Rule would that appellant’s concur I therefore be filed. ments warranted the court’s with rule comply failure to failure to comply. for such guilt finding for reconsideration the discipline. I remand would Appellant. v. Richards, 24, 1973. Before September Argued C. J., Jones, O’Brien, Roberts, Man- Eagen, Nix Pomeroy, DERINO, JJ.

John H. Gorbett, Jr., Assistant Public Defender, with him J. John Assistant Public Dean, Defender, E. Boss, Public for George Defender, appellant.

John G. Alford, Assistant District Attorney, with him Peter Foster and Robert L. Eberlmrdt, Assistant District and Robert Attorneys, W. Duggan, District At- for torney, Commonwealth, appellee.

Opinion by Mr. Nix, October 1974: Justice On the night June 28, 1971, later intruder, identified as entered appellant, the bedroom of Marla Jean 11 years then of Nase, age, awakened her and her that he advised intended to kidnap her for ran- som. The appellant’s face below the nose was covered a mask him with but victim was able to describe as a of thin white male, build, approximately 5' 10" in showing signs hair that was blondish height with a wearing he was of the incident, At the time balding. dark with jacket dark blue Barracuda dark black or his throat of at the knife placed The intruder pants. where nearby yard her and forced victim young attempted and her hands blindfolded bound her, he the screams by interrupted was her. The assailant rape daughter’s her mother when she discovered of Marla’s from her room. absence neighborhood, of the of a canvass police

As a result fitting an information that individual received they located a hotel resided a room general description of Marla. from the residence one block approximately proceeded on July 1st, police At A.M. 9:25 subsequently ques- and he was room the appellant assault burglary, with the crimes of tioned and charged and kid- assault indecent intent to ravish, with the napping. con- trial before a jury,

After a and the dismissal following all counts victed on a term to serve motions was sentenced post-trial The appeal of 7 to 15 years. imprisonment 1/2 in a curiam affirmance. per resulted Court Superior and reverse. allocatur now We granted raised or not the ap- The is whether first The arrested. Commonwealth illegally pellant voluntarily accompanied the appellant contends their for headquarters investiga- officers to police not arrested after and was fact until purposes tory victim. We how- believe, had been identified he recitation of facts such following dispute ever, In Bosurgi, a conclusion. we defined an (1963), any arrest as A.2d an intention to indicates take individual

act him subjects to the actual con- custody into person making arrest. Accept- will trol to the most favorable Commonwealth, the evidence ing police appellant in the the room of the at arrived explaining they in- 9 :25 where after were A.M., vestigating they burglary appellant a to ac- asked company police headquarters questioning. them to for police appellant, at the a While the station, diabetic, hospital accompanied ill became taken to was the by stay an officer who had been instructed with to hospital him. The entire in time he the the was police officials remained with him. the medical When completed, appellant ministrations re- had been police company to turned the station in of still the police alleged He officers. was then to have waived rights lineup of at of his counsel the time and was person identified as the who committed these acts. During appellant police the time the inwas station prior lineup per- to the he refused to make statement taining attempted separate to the incident and on two attorneys occasions to reach two without success. merely WTienwe consider the fact gave police participate name his to the and would not any concerning in further discussions either the crime or other involved matters, fact he became ill required during stay medical attention, that hospital accompanied by police he all times it is officials, most difficult to conclude that he re- police with the from mained A.M. 9:25 until 3:15 P.M. (the lineup) voluntarily. time The evidence support offered Commonwealth to their view voluntary primarily of a detention was addressed police state mind of the officers involved. How- Boswgi under the ever, test the rea- impression conveyed person subjected sonable unwillingness cooperate to the Here, seizure. his any way investigation, attempt with the his to seek physical assistance and his counsel, distress as a result of a diabetic force us to condition, conclude that police period approxi- he remained with the for a he no other 03ily six hours because believed mately available. And as equally important, alternative was the circumstances his warranted surrounding custody on a conclusion his part. such his when went Unquestionably police, they had him the focus of hotel room that morning, their Their for there was the purpose being inquiry. the he the general description given by fact fit him Miranda the questioning, they gave victim. Before police and the time warnings throughout him. were to be with constantly assigned officials he the he was a was focus suspect; clearly Clearly, and we believe as his investigation equally apparent the been In United freedom of movement had restrained. rel. Hollman v. F. States ex Rundle, Supp. had a descrip victim (E.D. 1971) robbery given Pa., of the man had tion the who committed the police to the course of that During investigation police act. and him the accused took to stopped station, him of his and him. The rights photographed warned the accused’s submission to argued prosecution therefore was there photographing voluntary probable no need to establish cause to their support In him. to this claim the response to seize court right there cause for the probable “Was responded: original as a petitioner suspect? Although one apprehension that petitioner officer testified was not under police he at the photographed police arrest when station, reveals of the clearly contrary. Petition testimony custody in actual of the as a police, suspect er was he was not to free leave until after robbery, This detention would consti photographed. he was ‘probable cause’ requiring on the part an arrest tute A officers.” review of the record arresting forces of the there was no credible testimony to conclude us of the court finding below that support submitted this voluntarily investigation. A rea- had sonable interpretation of tbe findings most favorable to the Commonwealth demands the conclusion that Edwin Richards was arrested when the police went to his hotel room that morning.

The Commonwealth also attempts ne- avoid the cessity of demonstrating probable cause by urging it was an merely investigatory detention. In Terry Ohio, 392 U.S. 1 (1968), Supreme Court of the United States recognized right of the law enforce- ment officials to conduct limited searches and seizures under carefully-defined circumstances without need to establish probable cause. The Terry court, however, limited this right to those on-the-street en- counters where the necessity for immediate action is obvious and the danger to person im- officer minent. This record is barren of the articulable facts required by the court Terry permit type intrusion upon personal security of an individual in absence of a showing of probable cause. In ap- proving investigatory stop absence of probable cause the Supreme Court was most careful to confine it to situations where the intrusion was in limited nature and the of the exigencies moment im- required action, mediate brief stop of a in- suspicious “[a] in order dividual, to determine his or main- identity to tain status quo momentarily while obtaining more may information be most reasonable in of light the facts known to the officer at the time.” Adams v. U.S. 407 146 Williams, 143, Here (1972).1 there was 1 argue “But to apply the Fourth Amendment does not to investigatory stage fundamentally is pur to misconceive the poses Investigatory of the Fourth Amendment seizures would subject persons unlimited members of innocent to the harassment ignominy involuntary incident to Nothing detention. is more the Fourth than that Amendment prevent clear was meant upon personal security intrusions wholesale citizenry, of our intrusions be termed these ‘arrests’ ‘investigatory whether or deten- limited for action nor this the no need immediate by Terry and Adams decisions. intrusion envisoned whether This court has nor need now, decide, we not, concept Pennsylvania an of will embrace the we investigatory of the and if so the nature detention, during necessary suspect panoply rights protect a of sub facts of the case such an intrusion. Under the clearly limited this be an extension of the Judice would probable requirement exception discussed to the cause Supreme Court date. probable argues that Commonwealth Further, With this con- cause for did fact exist. arrest given agree. The identification clusion we also cannot police by general in nature and to the the victim was segment applied large the com- to a of have would munity. description a blondish A male with white approxi- thinning height, skinny”, “real hair, medium mately years age, have that conclusive fails to necessarily quality draw would attention which particular faced We are not here with individual. description coupled circum- situation where a with satisfy require- together combine to stances that probable instant cause. The ment shortly apprehended the scene after at or near not wearing clothing but rather described, the incident days pos- Further the fact that he did later. several clothing type described cannot be consid- sess purpose since this that fact was not known for ered only thing arrest. Thus, time upon rely can its to furnish effort description general probable and the fact is a cause only explicit Terry Ohio, last Term in tions.’ We 904, 889, (1968), S. Ct. 1868 when we 20 L.Ed2d U.S. Fourth Amendment rejected that does not come ‘the notions upon police play conduct if the all a limitation officers as into something called a “technical arrest” or stop “full-blown short ”’ Mississippi, 721, (1969). 394 U.S. Davis v. 726-7 search.” 464

that the individual lived in In the general vicinity. Commonwealth v. 432 Holton, Pa. 247 A.2d 11, 14-15, 228, 229-30 we stated: “An arrest (1968) without a war rant must be on probable based must i.e., there cause, be facts available to the officers at moment of arrest which ‘would warrant a man of reasonable cau in tion the belief that the individual arrested has committed an offense. Carroll United 267 v. States, U.S. Ct. 45 S. 132, 162, McCray v. (1925); Illinois, 386 U.S. Ct. 87 S. is 300, Mere (1967). suspicion not and the burden enough upon is the Commonwealth to show with reasonable facts to specificity sufficient establish that cause existed. Beck probable v. Ohio, U.S. S. Ct. 223 (1964).”

Having concluded arrest was we illegal now turn to the as to whether or not question the evi- during dence obtained that illegal the line- seizure, e.g., up articles of identification, clothing that were seized and the oral incriminating statement are be to the product excluded as of the being exploitation of In illegality. Garvin, 293 A.2d 33 (1972) relying upon the United in Sun v. States decision U. Wong 371 U.S. 471 S., that an we noted arrest does (1963) illegal not neces- taint all in sarily evidence follows it time. “Sig- Supreme Court made it clear nificantly, bar arrest does not all illegal evidence subsequent it ‘We that arrest when concluded: need not hold “fruit of poisonous that all is tree” evidence simply it not have come light because would but for the the police. actions illegal Bather, more apt case is such “whether, granting establish- ment primary of the evidence illegality, in- which been has come objection at by stant exploita- or instead by of that means illegality tion sufficiently ’ ” be purged distinguishable primary taint.” Court recently This our Id. at 265. opinion

465 Betrand Appeal, 451 Pa. 303 A.2d 486 381, dis- (1973) cussed at great the factors to be considered length determining whether the evidence obtained following from illegal arrest was removed sufficiently taint of the into illegality permit its introduction evidence against accused.

“The seminal on Wong case this issue is Sun v. United 371 83 Ct. States, U.S. S. 417 471, 488, 407, (1963), where the Supreme Court announced the relevant test ‘. . . estab is: granting “whether, lishment of the primary the evidence to illegality, which instant is objection made has been come exploitation of that instead by or means illegality sufficiently distinguishable to be purged pri ’ mary (Citation taint.” omitted.) See Commonwealth v. Pa. Cephas, 447 291 A.2d 106 Com 500, (1972); monwealth v. 445 Pa. 282 A.2d Rowe, 319 454, (1971).

The Supreme Court also noted that the challenged evidence bemay purged of the taint if primary only (1) ‘ it results from “an act intervening independent ’ free will,” supra at 83 S. Ct. at Wong Sun, or 486, 416, if the connection (2) between the arrest and the evi- dence has ‘“become so attenuated as to (confession) ’ dissipate the taint.” Id. at 83 Ct. S. at 419 491, (citation omitted).

In Commonwealth rel. ex 348 Craig Maroney, F.2d (3d Cir. cert. 384 U.S. 1965), denied, 86 S. Ct. Third Circuit noted (1966), two specific factors major significance determining an relationship between arrest and illegal subse confession: quent of an

‘(a) proximity initial illegal custodial act to procurement confession; the intervention of other

‘(b) circumstances sub- an arrest illegal which sequent provide cause so initial illegality unrelated acquired not may reasonably be said to have evidence been di- il- by, tained thereby derived rectly from, arrest.’ legal v. Bishop, Court,

This U.S. 875, denied, 228 A.2d cert. 175, 183, 661, 666, Wong explained 88 S. Ct. subsequently 168 (1967), between Sun test the connection way: ‘[I]f or vague so arrest and the is to be confession shown “sufficiently “as the taint” or dissipate tenuous despite admissible, act free the confession will,” an of act “sufficiently the of the arrest. illegality By confession free we mean that not was the only will,” coer element of any but also free of truly voluntary, of arrest. The burden due the unlawful civeness to (Foot of is the Commonwealth.’ proof, course, upon note omitted.) illeg-

It be that once the primary should also noted the bur- the arrest —is ality established, illegal —here the den on the to establish is Commonwealth dis- sufficiently has been come at means ‘by confession rather taint’ to be tinguishable purged primary See United than ‘by exploitation illegality.’ of Ct. 1926, v. 388 87 S. States U.S. Wade, 218, 239-40, supra 183, 1939 v. (1967); Bishop, Commonwealth 228 A.2d at 666.” Id. at 388-390. deci- are involved the

Because different factors be ex- sion of pieces sought the three of evidence first Turning cluded we will discuss each separately. jacket) Barracuda (the to the item of blue clothing room allegedly2 pursuant taken from hotel appellant’s has objection to a it is clear warrant, search was not raised objection properly been waived. This Rule of Criminal Proce- Pennsylvania pursuant suppression prior for the of evidence allowing dure 323 an made at trial objection nor was when the to trial 2 dispute or not as to whether a search warrant was There obtained. in fact

467 article was offered into evidence.3 Com clothing monwealth v. 449 A.2d (1972) Pa. 296 741 Agie, 187, and Commonwealth v. 441 Pa. 255, 260, Henderson, 272 A.2d 185 182, (1971). next iden

Focusing upon lineup tification, we that even agree with Commonwealth if that identification was tainted by illegality the arrest4 in-court identification of the appellant by victim free of that taint. We are satisfied by Commonwealth on this record has proven clear and iden evidence that the in-court convincing tification was of United States independent origin. v. v. Wade, California, U.S. Gilbert (1967); 388 U.S. 263 v. (1967) Commonwealth ; Hancock, Pa. A.2d 588 (1974); The 266 A.2d 738 testi Whiting, (1970). mony established that from the vic bedroom which tim was removed dresser lighted by lamp on the three to four feet from The Marla’s bed.

held a to the knife throat of Marla while he stood beside the bed for a period estimated victim be five minutes. The given identification first police to the corresponded appel appearance lant. From the time she was taken from the bedroom until she was blindfolded the she had addi yard, tional period of time to her assailant at close view range. Combining these factors are that we satisfied the in-court identification sufficiently was removed from taint that infected the iden- any may lineup have

3 through appellant, There is some indication the record that may counsel, objection his have raised an to the search because produce warrant, however, Commonwealth’s failure to the the no suppress request illegal made to this evidence because of the arrest. 4 Garvin, v. But see Commonwealth A.2d argued (1972). ai>pellant lineup The also was tainted unnecessarily suggestive was conducted in an because it manner.

tifieation to permit its admission. Commonwealth Hancock, supra Commonwealth v. Burton, Pa. 307 A.2d 277 Since are (1973). reversing we the judgment of sentence a trial new granting we need not decide whether the reference to out- of-court identification was harmless error. See Com monwealth v. Commonwealth v. Bur Hancock, supra; ton, supra. During retrial of the matter this problem can be obviated reference to the by avoiding lineup identification.

With reference to the oral incriminatory remarks, allegedly during illegal detention after it is clear lineup, were the they products of exploitation of the and should been illegality have suppressed. The in its brief and argu- Commonwealth, has made ment, no nor attempt, could they upon meet their record, burden of showing that con- fession had come about by means distin- sufficiently guishable to be In purged taint. re primary Betrand, supra. For this reason judgment of sen- tence must be reversed and a trial new awarded. we turn appellant’s contention

Lastly, evidence was insufficient support verdict of guilt on the indictment charging The kidnapping. Act June P. L. 24, 1939, 18 P.S. 872, §723, provides: §4723 “Whoever or carries or takes, away decoys or entices or away, any secretes with intent person, extort or other money any valuable for the thing restoration or return such . . .” person, (Emphasis added). The appellant argues that the Commonwealth’s evi- dence of the requisite state of mind was contradicted its testimony. own contend They that appellant’s announced intention to kidnap, initially upon arousing his victim, negated by subsequent acts he her took for the yard obvious purpose of making upon sexual advances and fled hearing mother’s accept screams. We do not appellant’s underlying premise that nec- intent to assault one’s victim is essarily incompatible with an intent to also hold as a hostage for the for her purpose of a ransom seeking return. The jury could find from very properly testimony Marla from her bed appellant forced by motivated her and intention to sexually abuse also to demand intent money for her the latter return, being abandoned screams when heard the of the mother and feared This properly detection. was a question to be decided the trier of fact. by

Judgment of sentence and a trial reversed new awarded.

Mr. Chief Justice Jones dissents. Eagen

Mr. Justice dissents. Dissenting Opinion Pomeroy: Mr. Justice I have serious as the soundness of the conclusion reached by the Court that Richards’ arrest for want cause. Common illegal See probable wealth v. Pa. Gilmore, (1972); 288 A.2d 757 Commonwealth v. 190 A.2d 68-69, Bosurgi, 304 (1963).1 that such cause was Accepting, however, lacking, Richards’ inculpatory voluntarily statements, Miranda and a following waiver warnings ample opportunity bar, In the ease at victim had assailant, gave description her observe detailed of him to police. Moreover, points brief, as the out in its determining probable “[a]n additional factor cause in the in living stant case is the fact that the accused in the was discovered neighborhood place. where the crime took this not While would significant well-planned burglary be a factor or a crime of a ‘professional’ nature, significance it is of obvious in a sex offense investigating recognized significance crime. The . . . officers this they investigation persons living when centered their on vicinity Appellee immediate the crime.” Brief for I 15-16. point accordingly well-taken, sig think attach little fact nificance to the arrest was not made until three days reported. on after assault Ms. Nase ex be in my view, not, should Miranda rights, his the arrest police unless the from evidence cluded ex cause that such for the belief fair basis “without Pre Code of Model Institute, American Law isted.” Draft No. (Tent. §150.2(2) Arraignment Procedure, Pa. 381, 392, Betrand Appeal, see 6, 1974); of this opinion (concurring (1973) A.2d I cannot the case at bar, Under the facts writer). a fair basis for acted without police conclude for arrest. reasonable cause had they their belief that I therefore dissent. v. L. Appellant, E. Wilson Co.

Commonwealth, January Submitted 1974. Before C. Jones, J., Pomeroy Roberts, Manderino, O’Brien, Eagen, JJ.

Case Details

Case Name: Commonwealth v. Richards

Court Name: Supreme Court of Pennsylvania

Date Published: Oct 16, 1974

Citation: 327 A.2d 63

Docket Number: Appeal, 137

Court Abbreviation: Pa.