Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, Nos. 514, 515, and 516, in case of Commonwealth of Pennsylvania v. Harold Daniels.
Stanley M. Schwartz, with him Richard B. Schwartz, and Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for appellant.
John H. Isom, Assistant District Attorney, with him David Richman, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J. Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones and Mr. Justice Eagen dissent on the basis of this court's decision in Commonwealth v. Bishop,
Appellant, Harold Daniels, was convicted by a jury, of murder in the first degree, aggravated robbery and conspiracy. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.
Appellant was "picked up" by the Philadelphia police on February 11, 1970, at approximately 7:00 p.m., for questioning concerning a homicide committed in Philadelphia. Appellant and his girl friend, Diane Jones, who were then in the process of cooking dinner, immediately stopped what they were doing and went with the police to headquarters for questioning. Appellant was advised of his rights and interrogated until 8:00 p.m., when the first interrogation sessions ended. Appellant was then given two polygraph tests. He was then returned to the interrogation room and questioning began anew at 12:05 a.m. Appellant's interrogation finally concluded in the early hours of February 12, 1970, when he gave his incriminating statement.
Appellant contends that his confession should have been suppressed because it was the product of an illegal arrest, one made without probable cause. At the suppression hearing, the Commonwealth took the position that appellant was not under arrest when he accompanied the police to headquarters for questioning. The Commonwealth also contended that, if appellant was under arrest, it was a legal arrest because it was based on probable cause. According to the opinion of the suppression court, appellant was not under arrest but, assuming he were under arrest, the arrest was supported by probable cause. In addition, the suppression court determined that, in any case, the confession was
not the product of the arrest and, therefore, was admissible even if that arrest were illegal. The Commonwealth, in its brief, relied upon this last contention.
We shall discuss each of the Commonwealth's alternative positions seriatum.
(1) Appellant was not under arrest at the time of his confession. In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), we defined the term "arrest" as follows: "An arrest may be accomplished by an act that indicates an intention to take [a person] into custody and that subjects him to actual control and will of the person making the arrest." Page 68.
On the facts of this case, we are convinced that appellant was under arrest. Although the police testified that they had simply "requested" that he accompany them for questioning, the facts indicate that appellant was not free to refuse to comply with their request. For one thing, although appellant was preparing dinner when the police came to the door, the officers admitted that he was not given time to complete preparation and that, in fact, he had no dinner. To us, this indicates that appellant was subject to the will of the officers. For another, the police admitted that once appellant had "failed" the polygraph test, he immediately became a suspect. It strains credibility to believe that, even then, he remained ...