Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1965, No. 896, in case of Commonwealth of Pennsylvania v. Robert Rowe.
David Richman, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Robert A. Rosin, with him James J. Boyle, for appellee.
Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri. Mr. Justice Jones took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Eagen.
Appellee, Rowe, was charged with the robbery murder of two candy store proprietors in December of 1964. Following the denial of various motions to suppress, appellee was tried before a judge and jury in Philadelphia, found guilty of murder in the first degree and sentenced to a term of life in prison. Post-trial motions were filed and the court en banc granted appellee's motion for a new trial ruling that the murder weapon, a revolver, should not have been admitted into evidence because the search warrant under which it had been obtained was constitutionally infirm. Our court affirmed the order of the court en banc. Commonwealth v. Rowe, 433 Pa. 14, 249 A.2d 911 (1969).
In the course of its opinion before the former appeal, the court en banc found that it would be necessary to hold a pretrial hearing to determine whether or not the appellee's confession was "free from any elements of coerciveness due to unlawful seizure of the murder weapon." Pursuant to that en banc opinion, after the remand by this Court, a suppression hearing was held wherein appellee moved to suppress his oral and written confessions on the ground that he was coerced into making them by being confronted with the illegally seized murder weapon. The court below ordered the written confession suppressed, but denied the application to suppress the oral confession. It is from this order that the Commonwealth has now appealed.*fn1
The essence of the Commonwealth's argument is that the court below reached its conclusion that the appellee's
confession was tainted by the illegal seizure of the gun by misapprehending the "fruits of the poisonous tree" doctrine. See Nardone v. United States, 308 U.S. 338 (1939); Wong Sun v. United States, 371 U.S. 471 (1963). The Commonwealth asserts that Wong Sun requires that the confession be excluded only if obtained as a direct result of the utilization of illegally obtained evidence and that the record here fails to establish that the confronting of the appellee with the murder weapon had any coercive effect. Actually, the Commonwealth argues that the appellee was motivated to confess in this case by being informed that the brother of his co-conspirator had told the police that appellee had admitted committing the murders. Further, it is contended that appellee knew that the police had the weapon prior to his arrest, but did not flee because he was aware that the gun could not connect him with the murders.
The court below interpreted the authorities in this area as proscribing the use of illegally seized evidence in any manner. See Wong Sun v. United States, supra; Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). The lower court then concluded: "By showing defendant the gun, which was illegally seized, during the course of the statement and before it was signed, the police officers used the gun in obtaining the statement. We cannot say what motivated the defendant but only the knowledge that the police had the gun may have motivated him. There is no doubt that it was used to help motivate him. Therefore, the signed 'formal' statement is the fruit of the illegal search and is suppressed." (Emphasis by the court below).
The facts here are not in dispute. Appellee was arrested at approximately 1:30 A.M. on December 24, 1964 and transported to ...