Appeal from order of Superior Court, April T., 1972, No. 314, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1971, No. 5573, in case of Commonwealth of Pennsylvania v. Edwin Carl Richards.
John H. Corbett, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
John G. Alford, Assistant District Attorney, with him Peter Foster and Robert L. Eberhardt, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Chief Justice Jones dissents. Mr. Justice Eagen dissents. Dissenting Opinion by Mr. Justice Pomeroy.
On the night of June 28, 1971, an intruder, later identified as appellant, entered the bedroom of Marla Jean Nase, then 11 years of age, awakened her and advised her that he intended to kidnap her for ransom. The appellant's face below the nose was covered with a mask but the victim was able to describe him as a white male, of thin build, approximately 5' 10" in
height with blondish hair that was showing signs of balding. At the time of the incident, he was wearing a dark black or dark blue Barracuda jacket with dark pants. The intruder placed a knife at the throat of his young victim and forced her to a nearby yard where he blindfolded her, bound her hands and attempted to rape her. The assailant was interrupted by the screams of Marla's mother when she discovered her daughter's absence from her room.
As a result of a police canvass of the neighborhood, they received information that an individual fitting the general description resided in a room in a hotel located approximately one block from the residence of Marla. At 9:25 A.M. on July 1st, the police proceeded to the room of the appellant and he was subsequently questioned and charged with the crimes of burglary, assault with the intent to ravish, indecent assault and kidnapping.
After a trial before a jury, the appellant was convicted on all counts and following the dismissal of post-trial motions was sentenced to serve a term of imprisonment of 7 1/2 to 15 years. The appeal to the Superior Court resulted in a per curiam affirmance. We granted allocatur and now reverse.
The first question raised is whether or not the appellant was illegally arrested. The Commonwealth contends that the appellant voluntarily accompanied the police officers to their headquarters for investigatory purposes and was in fact not arrested until after he had been identified by the victim. We believe, however, that the following recitation of facts dispute such a conclusion. In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), we defined an arrest as any act that indicates an intention to take an individual into custody and that subjects him to the actual control and will of the person making the arrest. Accepting the evidence most favorable to the Commonwealth,
the police arrived in the room of the appellant at 9:25 A.M., where after explaining that they were investigating a burglary they asked appellant to accompany them to police headquarters for questioning. While at the police station, the appellant, a diabetic, became ill and was taken to the hospital accompanied by an officer who had been instructed to stay with him. The entire time that he was in the hospital the police officials remained with him. When the medical ministrations had been completed, appellant was returned to the police station still in the company of the police officers. He was then alleged to have waived his rights of counsel at the time of a lineup and was identified as the person who committed these acts. During the time ...