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COMMONWEALTH v. BROWN (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
BROWN, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1969, Nos. 1121 and 1123, in case of Commonwealth of Pennsylvania v. Theodore Brown.

COUNSEL

Joseph Michael Smith, with him F. Emmett Fitzpatrick, Jr., and Fitzpatrick & Smith, for appellant.

James J. Wilson, Assistant District Attorney, with him James T. Ranney, and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Pomeroy joined in this decision. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Eagen, Mr. Justice Pomeroy, Mr. Justice Nix and Mr. Justice Manderino concur in the result.

Author: O'brien

[ 451 Pa. Page 397]

On May 19, 1969, Robert Carter was shot and killed inside the Opus I Bar at North 27th Street, Philadelphia. The facts surrounding the killing indicated to the police that it was probably a "gang" slaying, involving two gangs in the neighborhood -- the 28th and Oxford Gang and the 28th and Montgomery Gang. Appellant, a member of the 28th and Oxford Gang, was awakened from his sleep and taken to the police station at some time between 3:30 and 4:00 in the morning. Apparently appellant was one of several people picked up in connection with the killing, presumably because of his membership in a gang which was thought to be involved. There was no probable cause for the arrest. In fact, in the words of the officer involved, there was no arrest. Appellant was merely "picked up for investigation."

At the suppression hearing, the officer testified as follows: "Q. Where did you arrest him, Officer? A. I did not actually arrest him. Upon information received from the Homicide Division, I went to his home to see if he was home. If he was home, I was to send him

[ 451 Pa. Page 398]

    down to the Homicide Division so that they could talk to him. He was merely picked up by myself as the result of a memorandum from the Homicide Investigation. He was to be picked up for investigation. Q. You did not arrest him? A. No, sir. Q. You did not have a warrant? A. No, sir."

Within one hour after his arrival at the police station, after being given the proper Miranda warnings, the appellant orally confessed to the crime and stated that he had given the gun he used in the killing to Samuel Winns, a fellow gang member. As a result of this information Winns was picked up and a search warrant was obtained for Winn's residence. A search of this residence led to the discovery of the murder weapon.

Questioning of appellant continued intermittently from the 4:00 arrest until 9:45 a.m., when the taking of a formal typewritten statement commenced. This statement was signed by appellant at 11:10 a.m.

On January 6, 1971, after a previous trial had ended with a deadlocked jury, appellant was tried by a jury and on January 21, 1971, they returned a verdict of guilty of second-degree murder. After denial of his post-trial motions and entry of the judgment of sentence of ten to twenty years' imprisonment, appellant filed this appeal.

Appellant first alleges that his previous trial, which resulted in a hung jury, barred his final trial due to the constitutional provisions against double jeopardy. The previous trial began on October 14, 1970. The jury retired to deliberate on October 20, 1970, and deliberated through October 23, 1970, at which time the jury announced that it could not agree on a verdict. The trial judge, observing the deadlock and that two jurors ...


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