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decided: May 22, 1974.


Appeal from order of Superior Court, Oct. T., 1971, No. 1628, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, No. 134, in case of Commonwealth of Pennsylvania v. Leroy Richman.


Kenneth Mirsky, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, with him James J. Wilson and James T. Ranney, Assistant District Attorneys, 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 Nix. Mr. Justice O'Brien, Mr. Justice Roberts and Mr. Justice Manderino join in this opinion. Concurring Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this concurring opinion. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this concurring opinion. Concurring Opinion by Mr. Justice Pomeroy.

Author: Nix

[ 458 Pa. Page 169]

Appellant Leroy Richman was tried by a judge sitting without a jury and found guilty on charges of burglary and rape. After post-trial motions were denied, he was sentenced to from two to five years. On appeal, the Superior Court affirmed, per curiam. We granted allocatur limited to the issue whether there was a constitutional right to counsel at a pre-indictment lineup, and if so, whether that right was intelligently waived in this case.

Appellant was arrested at 9:30 A.M. on May 6th and taken to the 9th District Central Detective Division. He signed a written waiver of counsel, and at about 2:00 P.M. he was placed in a six-man lineup where the complaining witness identified him as her assailant. At trial, the complaining witness testified that on May 1, 1970, the appellant entered her apartment and forced her to submit to intercourse by threatening her with a knife. An in-court identification was made without reference to the lineup during the prosecution's case-in-chief.

Appellant now contends that he had a right to counsel at the lineup, that he did not waive that right, and that the in-court identification was tainted by the uncounseled lineup.

[ 458 Pa. Page 170]

The United States Supreme Court first recognized a suspect's right to counsel at a pretrial lineup in United Page 170} States v. Wade, 388 U.S. 218 (1967). The policy behind the prophylactic exclusion of uncounseled lineups was explained as follows: "Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid [of counsel] . . . as at the trial itself.' Powell v. Alabama, 287 U.S. 45, 57 (1932)." (Footnote omitted). 388 U.S. 236-7. While Wade's indictment preceded his lineup, the indictment also preceded the arrest, and the Court's opinion did not specify precisely when the right to counsel attaches.

Five years later, a plurality of the Supreme Court of the United States in Kirby v. Illinois, 406 U.S. 682 (1972) declined to apply Wade to lineups occurring "before the commencement of any prosecution whatever." 406 U.S. at 690.*fn1 The decision in Kirby does not suggest that the rationale which spawned Wade is in applicable to such lineups. Rather, Kirby was concerned with striking "the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime." 406 U.S. at 691.

In attempting to reach this balance, the plurality noted: "The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For

[ 458 Pa. Page 171]

    it is only then that the Government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." (Footnote omitted) 406 U.S. at 689-690. Therefore, they held that the Sixth Amendment right to counsel applies only to lineups conducted "at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information or arraignment." 406 U.S. at 689.

Kirby does not establish an all inclusive rule; rather, the line to be drawn depends upon the procedure employed by each state. We are therefore faced with the issue of whether this lineup preceded the "initiation of adversary judicial proceedings" as defined in Pennsylvania. While the plurality in Kirby attaches some significance to the indictment, they specifically mention several benchmarks: "formal charges, preliminary hearing, indictment, information, or arraignment." 406 U.S. at 689. We are convinced that it would be artificial to attach conclusionary significance to the indictment in Pennsylvania.*fn2 Rather, we hold that Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), appropriately draws the line for determining the initiation of judicial proceedings in Pennsylvania at the arrest.

As we noted in Whiting, the policy behind the Wade rule applies with equal force to all confrontations conducted after arrest. Kirby only instructs us to limit

[ 458 Pa. Page 172]

    that rule where the limitation would benefit the interest of society in the prompt and purposeful investigation of an unsolved crime. In light of Pennsylvania's procedure, we find no countervailing benefit where the lineup occurs after arrest.

In reaching that conclusion, we note that the approval by a magistrate of a written complaint is at least as significant as the indictment in determining the commencement of adversary proceedings and the strength of the government's commitment to prosecute. See, United States ex rel. Robinson v. Zelker, 468 F.2d 159, 163 (2d Cir. 1972):

"Here the arrest warrant itself commanded that appellant be brought forthwith before the Criminal Court 'to answer the said charge, and to be dealt with according to law.' These were formal criminal proceedings, for the warrant had been signed by a judge based on an 'information upon oath' that appellant did commit the crimes of assault, robbery and possession of a dangerous weapon. This being true, Wade required counsel at the show-up". In Pennsylvania, magisterial approval of a complaint occurs either at the issuance of an arrest warrant, or, for warrantless arrests, at the preliminary arraignment. See, Pa. R. Crim. P. 130.*fn3 The reasoning of Robinson would clearly apply to both situations.

The case at bar, however, concerns a lineup conducted after a warrantless arrest and before the preliminary arraignment. Having determined that Wade protection must be provided subsequent to an arrest on a warrant, we must decide whether to distinguish arrests conducted without a warrant. We decline to do so for two reasons.

First, a warrantless arrest is justified only in the face of compelling exigent ...

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