Commonwealth v. Nicholson

Opinion by Price, J., This Commonwealth appeal concerns the validity of an order suppressing the testimony of a co-defendant. We have carefully reviewed the record and must conclude that the testimony was properly suppressed. Appellee was charged with assault and battery, aggravated assault and battery, assault with intent to kill, aggravated robbery, and robbery. The facts indicate that on February 14, 1973, Mrs. Cheryl Murphy was brutally assaulted by two men in a parking lot outside of a food market ip Philadelphia. Mrs. Murphy was robbed and stabbed twice, one of the stab wounds penetrating her heart. This vicious attack was witnessed by Charles Parrish and Cynthia McShane, who came to the aid of Mrs. Murphy and took her to a hospital. Although Mrs. Murphy was unable to identify either of her assailants, both Mr. Parrish and Miss McShane gave descriptions of the attackers. Both were described as black, of medium build, fifteen to eighteen years old, — 177 — five feet nine inches and five feet six inches tall. One was wearing a green army field jacket and the other was' wearing a brown car coat and a red cap. Neither witness was able to give a description of the facial features of the assailants, but both agreed that neither wore glasses and that one of them had a mustache. Later that night following the attack, Officer Raymond Lackey of the Philadelphia Police Department made a “head stop” of appellee and co-defendant James Honesty because appellee was wearing clothing which fit the description of that worn by one of the attackers. However, there was no arrest made at this time because appellee and Honesty did not fit the descriptions given by the eyewitnesses and also because they satisfactorily answered the officer’s questions. This stop was recorded on a “75-48” form which was supposed to be submitted to the detective in charge of the case. A short time after the head stop, appellee was formally arrested. There is no question that this arrest was illegal as not being supported by probable cause. Appellee was questioned and he denied any knowledge of the incident. In addition, the eyewitnesses stated that appellee was not one of those involved in the stabbing. Appellee informed the police that he had been with James Honesty for most of the day in question. The police, however, acting on the information obtained from appellee, secured a picture of James Honesty, and Mr. Parrish identified him as being one of those involved in the attack. After Honesty was questioned, he implicated appellee. All statements made by appellee at the time of his arrest were later suppressed as the product of the illegal arrest. At trial, however, the Commonwealth attempted to utilize the testimony of Honesty, who had agreed to testify in exchange for a lighter sentence, and of a police officer who had interrogated Honesty. Appellee objected and the trial judge sustained the objection, holding that this testimony was a direct result of the illegal arrest — 178 — and as such was the “fruit of the poisonous tree.” Following the sustaining of appellee’s objection, the Commonwealth petitioned this court for a Writ of Prohibition against the trial court. Argument was held before Judges Hoffman and Spaeth, and the petition was denied. The Commonwealth then petitioned the Supreme Court for the same relief. An agreement was arrived at whereby the trial court’s ruling would be treated as a suppression order and a mistrial would be declared. The Commonwealth would then be permitted to appeal the suppression on its merits. It is that appeal with which we are now concerned. When dealing with cases which involve “the fruit of the poisonous tree,” the proper question concerning admissibility of such evidence is, “‘...whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint,’ Maguire, Evidence of Guilt, 221 (1959).” Wong Sun v. United States, 371 U.S. 471, 488 (1965). The Commonwealth contends that they would have discovered Honesty’s identity by means wholly independent of the illegal arrest of appellee, thus removing the taint. The Commonwealth argues that Honesty would have come to the attention of the investigating officers as a result of the “75-48” réport filled out by the officer who originally made the head stop of appellee and Honesty, by a general investigation of all persons living in the Whitehall Housing Project (Honesty was a resident of Whitehall), or by the eventual identification of Honesty by Mr. Parrish, one of the eyewitnesses who was familiar with Honesty’s family. Unfortunately, we must conclude that the Commonwealth’s contentions are simply too speculative to support the admissibility of the testimony. The “75-48” report was never produced at the hearing and we can only guess at what a general investigation of all persons — 179 — living in the Whitehall Housing Project might reveal. In addition, we are not convinced that a general investigation of the Whitehall Housing Project would have been undertaken. Finally, the contention that eyewitness-Parrish would have eventually seen and recognized Honesty when Honesty visited his family is too uncertain. We must remember that the description given by Mr. Parrish did not fit Honesty. Although Mr. Parrish did select Honesty’s picture from a group of five, we have no proof that Honesty would have been identified if a confrontation had occurred on the street absent the picture identification. We cannot even be reasonably certain that the confrontation would have occurred. The Commonwealth argues that this case is governed by the decision in Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). In Garvin, police received a telephone tip on the whereabouts of one of two participants of a robbery of a beauty salon. Acting on this tip, the police arrested Garvin who was positively identified by the victims. The initial arrest was declared illegal and Garvin moved to have the identification suppressed as the result of the illegal action. The Supreme Court refused to grant the suppression, holding that the only effect of the illegal arrest was to hasten the inevitable confrontation. The court emphasized that the victims had ample opportunity to observe Garvin at close range and under excellent conditions and there was never any doubt as to identification. The actual identification was not influenced by the illegal arrest, but only made possible by confronting the robber with the victim. “[I]t is clear that the illegality contributed neither to the knowledge of the witnesses nor to the accuracy of their identifications.” 448 Pa. at 266, 293 A.2d at 38. The present case may easily be distinguished from Garvin, supra, on the factual situation alone. The question is not the identification of Honesty but rather the identification of appellee. We must remember that — 180 — were it not for Honesty’s testimony, appellee would not have been arrested because the eyewitnesses had already informed the police that appellee was not involved. We must, instead, apply the rationale of Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1976), a case factually indistinguishable from that presently before us. In Whitaker, police investigating a street gang murder took Tony Whitaker into custody for questioning. It was admitted that this was an illegal arrest. Whitaker denied any involvement in the slaying, but told the officers that John Barton had committed the crime. The police, acting on this information, arrested Barton who in turn implicated Whitaker. Whitaker was again arrested and confessed that he was an active participant in the killing. Whitaker later moved to have all statements made by him, as well as all statements made by Barton, suppressed as being the result of an illegal arrest. Our Supreme Court granted the suppression and stated: “The Commonwealth contends that our decision in Commonwealth v. Garvih, supra, indicates a contrary result. It is argued that because the police knew the identity of Barton before appellant’s unlawful arrest, it cannot be assumed that, absent appellant’s incrimination of Barton, the latter would never have been arrested and so never would have made his confession implicating Whitaker. We cannot agree. In Garvin, the defendant was illegally arrested for robbery and taken to the scene of the robbery, where he was identified by one of the victims. The proof revealed that the victim had had an opportunity to observe her assailant for as long as five minutes under good lighting conditions. There was thus clearly a basis for the identification wholly independent of the unconstitutional arrest. We held that the identification evidence was not the product of the unlawful arrest because the arrest had ‘contributed neither to the knowledge of the witnesses nor to the accuracy of their identification.’ Commonwealth v. — 181 — Garvin, 448 Pa. at 266, 293 A.2d at 38. It was in that context, then, that we said that ‘the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome.... We cannot assume that but for the illegal arrest the appellant would have remained at large indefinitely.’ id. “In the case at bar, as noted above, the Commonwealth concedes that the illegal arrest of appellant did contribute substantially to the arrest of Barton. ... It is possible, of course, that sooner or later the police might have amassed sufficient information from a source independent of the appellant upon which to arrest Barton, but the fact remains that, as far as the record shows, the investigation had not focused on Barton, nor was independent evidence implicating Barton available or likely to be so. See Commonwealth v. Cephas, 447 Pa. 500, 508, 291 A.2d 106, 109 (1972). “The police released Whitaker from custody on November 22 because his initial statement, while inculpatory to a degree, did not provide information sufficient to justify charging him with any involvement in the death of Benjamin Simmons. It is obvious, therefore, that it was the Barton confession which provided both the basis for Whitaker’s second arrest and the impetus for his full confession. This concatenation of events completes the causal chain.” 461 Pa. at 414-415, 336 A.2d at 606-607. We affirm the order of the lower court suppressing the evidence.