*1 rеcord because prior criminal appellant had a instruction, him. The photographs of existence I now which am therefore, problem did not cure concerned. 177, Allen, 448 Pa. v.
In Commonwealth
decision:
in a unanimous
Supreme Court stated
reasonably
jury could
that a
is determined
“Once
prior criminal
reference
photographic
from the
conclude
has
prejudicial error
activity
part
of the defendant
on
of the
the circumstances
Under
beеn committed.”
case, which
in the instant
photographic
reference
likely
go
passing
certainly
reference
was not a
naturally
witness
unnoticed,
jury
infer that
would
mugshots,
thus
police photographs, or
had been shown
inexorably
leading
to the conclusion
them
engaged in criminal
conduct.
previously
nothing
the record which
points
Commonwealth
against
inference. See
to militate
could serve
Hence,
Turner,
(1973).
v.
I would therefore reverse trial, a new and remand for on Indictment No. solely improper reference to on basis photographic identification. J., concurring opinion. joins in this
Spaeth, Ruckinger, Appellant. *3 J., P. Watkins, September Before Submitted 1975. Voort, Price, Cercone, Van der Hoffman, Jacobs, Spaeth, JJ. and Defender, Woodcock, appellant. Jr., for Public
John Attorney, Haberstroh, District Assistant William J. Attorney, Com- Davis, District Amos C. and monwealth, appellee. J.,
Opinion by Hoffman, March 1976: Appellant contends the from evidence derived gained during information arrest was the and, therefore, “fruit” of his detention should have been inadmissible his trial. 20, 1974, companion appellant a
On March and slowly through driving appellant’s were automobile a in Haven, Altoоna. Detective commercial área Lock Sergeant Force Police Eichenlaub of Lock Haven began follow it appellant’s noticed automobile sight parallel on a When Officer Eichenlaub lost street. car, appellant had where he drove to street unoccupied. traveling appellant’s been and found vehicle occupants of the He then a search for commenced car, noticed the a from the the officer car. About block walking appellant normal manner. down street a fully himself appellant, He who identified stopped During questioning, questions. all answered received a radio call Officer Eichenlaub apprehended in the had individual with firearm been time, not know vicinity. At did Officer Eichenlaub the individual with the firearm automobile, individual or whether appellant. committed crime concert custody Nevertheless, appellant taken into placed under arrest. appellant Police was taken to Lock Haven interrogation
headquarters, where underwent for one he officer, presence hours. In the of an and one-half permitted place call to was then During call, appellant his father to his father. told *4 things.”1 “get of his The of stuff” or to “take care rid conversation, as a and officer overheard appellant’s dispute some over exact words. The 1. There was appellant that the officer who оverheard conversation testified hand, father, “get Appellant’s on other stated rid of the stuff.” my things.” his “take son had said care testified result, police dispatched appellant’s unit was father’s residence, home. As unit arrived at appellant’s driving away. police stopped father was The highway, consent, his car on the and with his searched guns the automobile. The search revealed several which subsequently proved to be stolen.
Appellant charged receiving burglary goods. September 16, stolen On appellant filed a evidence, suppress motion to which was denied appellant’s 29, 1975, lower January court. At trial on granted appellant’s lower court charge demurrer to the burglary guilty but receiving he was found stolen goods. Appellant’s motions, post-trial oral im- mediately trial, after Appellant were denied. years imprisonment; sentenced to three to ten appeal followed.
Because
post-trial
oral
motions were
Blair,
made after the effective date of Commonwealth v.
460 Pa.
(1975),
Rule days (7) “Within seven after a finding guilt, right the defendant shall have the to file written motions for a judgment new trial arrest of —” 1123(b) hand, Rule on provides: the other “If the agrees record, defendant post-verdict on the motions may orally be made at the conclusion the trial ....”
525 Blair, supra, (Emphasis supplied). In Commonwealth v. apparently practice in some the Court condemned judicial making post-trial a districts of oral motions at appellant’s than the conclusion trial. time other Since post-trial made motions were at the conclusion of trial 1123(b), are with Rule the issues raised accordance properly before us. found, now
The lower and the court Commonwealth admits, illegal. appellant’s lower that the arrest held, however, telephone that the court conversation sufficiently an free as to аct of will so break nexus guns. illegal between the arrest and the seizure of the Whitaker, 407, 413, In Commonwealth v. 461 Pa. Supreme Court noted that A. 2d “virtually poisonous all ‘fruit of the tree’ cases of the only considered, there which this Court has have existed alleged chain, i.e., the initial two links in the causal challenged illegality physical and the or verbal evidence case, however, resulting In the there present therefrom.” illegal arrest, appellant’s initial are three links: arrest, on under statement while property stolen recovered as a direct result faced, therefore, We situation statement. are sought which the to introduced is derived evidence be illegal This gained during the from information link, however, applicable does not alter third importance con- “what is of critical standards: purposes is that and direct there exists real stitutional arrest between unlawful causal connection derived evidence [and therefrom].” Whitaker, аlso, supra at 336 A. 2d 606. See 3d 385. A.L.R. embodying the “fruits of
The seminal case States, poisonous tree” Sun v. United doctrine There, an- Court 371 U.S. determining applied in principles nounced the be should procured whether evidence after an arrest is ‘fruit need not that all evidence be excluded: “We hold simply it would have because poisonous tree’ of the police. of the light for the actions but come to ‘whether, case is Rather, apt question in such a the more illegality, primary granting establishment objection is has been which instant evidence illegality or instead exploitation of that come at *6 purged of the sufficiently distinguishable to be means ” Whitaker, v. primary taint.’ See also Commonwealth Richards, 455, A. 2d v. 458 Pa. 327 supra; Commonwealth 381, 2d 486 Appeal, 303 A. (1974); Betrand 451 Pa. 63 Garvin, 258, 2d Pa. 293 A. (1973); v. 448 Commonwealth 500, Cephas, Pa. 291 447 v. (1972); Commonwealth 33 175, Bishop, Pa. v. 425 (1972); Commonwealth A.2d 106 that the it is determined A. 2d 661 Once 228 illegality, by exploiting the was obtained evidence Supreme exclusionary appliеs.2 Court has often rule Our may purged of the challenged be evidence stated proves that it only primary taint if the Commonwealth if intervening will or act of free results from an illegality has and the connection between arrest See, e.g., dissipate the taint. so attenuated as to become Richards, Appeal, supra; Betrand v. Commonwealth supra. Ohio, Supreme Mapp Court in v. 367 U.S. 2. The United States exclusionary 643, extensively (1961) the rationale of the 666 discussed “ — compel purpose rule ‘is to deter rule: [T]he only effectively guaranty respect available in the for the constitutional
—way
by removing
disregard it.’ Elkins v. United
the incentive to
217,
States,
page
supra,
page
Further
at
527
applied most
While
“free will” rationale has been
arrest,
during
illegal
see
an
often to confessions obtained
669,
Jackson,
A.2d 189
e.g.,
v.
459 Pa.
331
Commonwealth
Bishop,
supra;
v.
(1975);
Appeal,
Betrand
Commonwealth
supra;
equally
applicable
it is
to other statements
States,
during
illegal
an
v. United
arrest. See
Sun
490,
supra.
Appeal, supra
A. 2d at
In Betrand
at
Court,
Craig
ex
quoting
rel.
Commonwealth
denied,
1965),
Maroney,
(3d
cert.
v.
348 F. 2d
Cir.
significant
factors in
U.S.
noted
two
illegal
determining
an
relationship
between
causal
“(a)
proximity of an
subsequent
arrest and
confession:
illegal
procurement of the
initial
to the
custodial act
confession;
cir
(b)
of other
intervention
provide
which
subsequent to
arrest
cumstances
illegality that
initial
a cause so unrelated to
reasonably
may
to have
acquired
be said
evidence
by,
directly
from,
thereby
tainted
been
derived
Jackson, supra
Cf.,
v.
arrest.”
n.6,
n.6. In Commonwealth
4. Illinois, U.S. In case of Brown the recent (1975), the States Crim.L.Rep. United noting that adopted Bishop After the standards. Court in “intimate are and Fifth Amendments the Fourth person compels a to either in that a violation of relation” will, the against Court held yield the evidence protect Wong to was Sun rule used “To the extent freedoms: Fourth Amendment voluntary Toy’s question statement whether ‘was considered, only judge whether to it was primary taint purge sufficiently act of free will Thus, if the statement even invasion.’ .... of unlawful voluntary the Fifth under to be case were found In Amendment, issue remains. the Fourth Amendment chain, arrest and order for the causal between broken, thereto, subsequent to be the statements merely statement meet Wong requries Sun but that standard voluntariness the Fifth Amеndment ‘sufficiently primary purge will to an act of free it be mandates at 486. Sun thus taint.’ 371 U.S. admissibility light of the consideration a statement’s Amend- policies of the Fourth distinct and interests Illinois, Court supra ment.” Brown v. at 3148-3149. determining suggested relevant then several factors purged: whether Miranda the taint given, proximity warnings temporal have been intervening statement, presence arrest and the circumstances, purpose particularly, flagrancy of the misconduct. official misconduct,
By offiсial emphasizing the nature will point taint at which the the Court held that *8 enough, lapse could time in of itself were of time, individual, indiscriminately and then an wait a set arrest voluntary interrogate would be confession him certain admissible.
dissipate directly dependent is on the nature of the taint misconduct) (official concurring itself.5 The opinion of Mr. Justice depth discusses in the nature of Powell, relationship. Justice Powell notes that the notion of “dissipation attempt point of tаint” is an to define at which consequences illegal police “detrimental action become so attenuated that the deterrent effect of longer justifies rule no its cost” on the legitimate demands of law enforcement. Brown v. Illinois, supra According at 3151. to Justice Powell, flagrant violation, more the constitutional the more stringent proof “If, the burden of for attenuation: example, the factors relied on deter- mining lacking to make the arrest were so indiсia probable cause as to render official belief in its existence entirely unreasonable, clearly or if evidence suggested that the arrest was pretext as effectuated objectives collateral I require ... thus some would demonstrably effective break the chain of events leading from the arrest the statement... before the taint Illinois, can be deemed removed.” Brown v. id. In such purposes exclusionary rule, cases the dual judicial integrity, deterrence and are best served excluding the evidence. case,
In the instant inconceivable arresting officer probable believed he had cause to following Officer Eichenlaub parallel automobile for some time on a After he street. sight it, lost he went to the street on which the traveling automobile was and found the automobile parked unoccupied. began search, At he the time all the Officer knew was that there had been two occupants Appellant walking of the automobile. been pace at a normal when he stopped, and he Pre-Arraignment Procedure, 5. See A.L.I. Model Code Art. seq. Commentary thereon, at 46 et seq. (Proposed et Draft, 1975). Official *9 530 fully. received
cooperated Eichenlaub As soon as Officer stopped individual had been a radio call that another firearm, placed nearby appellant was under with a knowledge that point At this the no officer the any way connected was the individual committed appellant or whether crime arresting have pair. or should Thus the officer knew the probable cause and known that the arrest was without Berrios, Pa. Commonwealth v. unconstitutional. See Hicks, (1970); A. 2d 342 these cir- Pa. A. 2d 276 Under cumstances, purposes two the rule’s judicial integrity require the exclusion deterrence and the Commonwealth the fruits such misconduct unless in the chain. demonstrates an effective break appellant While asserts that the Commonwealth vоluntarily freely in front of the statement made it, incidently appellant’s conduct who overheard officer During during argument.6 interrogation refutes that steadfastly to confess interrogation, appellant refused burglary. is to the While it true call, “voluntarily” telephone he did freely “voluntarily” Further- its contents. disclose very more, short appellant’s telephone placed call was hours) (one his initial time and one-half after Commonwealth, therefore, has failed to arrest. The “sufficiently an act demonstrate the statement Thus, the purge primary free will taint.” so as to is statement inadmissible. guns must be
We must now consider whether Sun, as Court excluded well. In has with a similar The Court determined faced situation. incidently 6. While the Commonwealth asserts that the officer conversation, likely telephone it that the overheard is more officer only repeat purposely listened to it. The officer was not able telephone conversation, repeаt but was able to also appellant placed number that his collect call to. Toy’s concerning possession statement Yee’s narcotics was as the inadmissible fruit of arrest. The then had Court to consider required exclusion of the statement the exclusion of the apartment. narcotics found in Yee’s The Court held that “clear that the narcotics were .‘come at ” illegality’ exploitation of that inadmissible. hence The same is It is that the true the instant case: clear *10 guns by exploitation were come at
Judgment of is and case remanded sentence reversed for new trial.
Dissenting
Opinion
by Price,
J.:
States,
(1963),
Wong
In
Mr. Justice Mr. Justice Powell, Rehnquist, concurring opinion sets forth the extremes of the rule of exclusion and then makes observation: “Between range defy these extremes lies a wide of situations that ready categorization, attempt and I will not to embellish opinion on the factors set forth in the Court’s other than emphasize inquiry always that the Sun should purpose be conducted with the deterrent of the Fourth sharply Amendment rule See focus. Pre-Arraignment Procedure, A.L.I. Model Code of Art. 150, p. seq. Commentary thereon, et p. seq. 375 et (Prop. 1975). And, inevitably Off. Draft in view of the fact-specific inquiry, placе nature of the must we primary ‘learning, good sense, fairness, reliance on the courage’ judges who must make the determination States, in the first instance. Nardone v. United 308 U.S. ante, See at 604 n.10.” 422 U.S. 612. reviewing In appears this case it to me that facts presented place and discussed the lower court it in range “defy ready categoriza- wide of situations that tion” discussed Mr. Justice Powell it is here that *11 my majority assessment differs from that of the and hence this dissent. be, is,
There can argument аnd no advanced concerning this It arrest. was clearly, unlawful was and properly, and held However, to be so the lower court. it should be noted that all per arrests are not se flagrant police abuses of judge initiative. The lower court observed and found that issue, is, the information at that content father, call to publicly was conveyed open public and hearing. The officer overhearing the engage information any did not in undercover or underhanded оverhearing conduct in nothing conversation. There was about the method employed, such as electronic eavesdropping, to hear this appellant conversation. The objection. made no The through information came to the officer normal observa- hearing. majority tion and *12 cities, larger other does not bustle and hustle at that came, morning. operation hour of the of this car so, rightfully eye alert Lock under watchful of an stopping, policeman. Haven Further erratic action city of the vacating in this area the car parking search further and to check prompted this officer upon He came occupants of the car. area for Im- fully with the officer.1 cooperated appellant who thereafter, information mediately received the officer who man in the area a second about firearm, knowing that there apprehended with a appellant in aрpellant, placed car with others in the been custody. view, not, my type police conduct
This is flagrantly as a abusive characterized that can be rights does and thus of Fourth Amendment violation purpose of the into use the call deterrent “negligent” “willful” nor police action was not rule. The high areas of our apply In crime I would those terms. as less approved police action that has larger have cities we face. To condemn facts than those we now supportive town a low area of smaller conduct crime relatively area presence in commercial deserted where graver city in the minds can raise even doubts of the society’s charged protection does violence those concept Wong Brown. spirit and Sun and attenuating telephone Appellant’s call was sufficient therefore, would, dissipate I the taint and occurrence to judgment of sentence. affirm thе J., P.J., join in this and Van Voort, Watkins, der dissenting opinion. fully throughout period cooperated 1. Indeed stoutly wrongdoing, Although this attitude he denied interrogation, throughout his the hour or so of maintained openness call. in the reflected Appellant. Horsman, The notes that is more likely that purposely the officer listened to the rejects argument conversation and the officer incidentally illegal arrest, overheard it. Albeit appellant custody was in present; and the was offiсer therefore, purposely incidentally the officer or not, me, help placing overheard does in the of this case posture. in clearer I impressed am much more finding the lower court’s the officer’s conduct truly not intrusive and that the came to him information through hearing. Also, normal observation the lower voluntarily court found that information was revealed. It seems also that there are elements to the arrest that, illegal, itself extenuating while still offer cir- justify сumstances that the conclusion that this case is in category of cases where there was some indicia of probable cause and that the arrest was not effectuated as pretext First, purposes. collateral the Lock Haven County in certainly Clinton seeking were appellant burglaries County, for the Mason in Blair they it is doubtful that were even aware of the crime on which now stands convicted at the time It is therefore clear to me that the arrest was not subterfuge seeking an official to the of evidence as to this argument, course, crime. The double-edged, and the may that, other specific side well be probable absent cause, proverbial fishing the arrest expedi- must be the tion. The answer to that lies consideration situation, accurately majority, detailed surround- ing the arrest. time area of was 12:50 a.m. a commercial traveling Appellant Lock Haven. an automobile speed. is a a slow rate of While Lock Haven fine area, community, Philadelphia its downtown unlike