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decided: March 18, 1975.



Allan M. Tabas, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., John H. Isom, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., filed a dissenting opinion in which Eagen and O'Brien, JJ., join.

Author: Pomeroy

[ 461 Pa. Page 409]


After a trial by jury, Tony Whitaker, the appellant, was found guilty of murder in the second degree in connection with the fatal stabbing of one Benjamin Simmons. Post-trial motions were denied, and appellant was sentenced to imprisonment of not less than seven nor more than twenty years. This appeal centers on the admissibility of two statements which appellant had made to the police and which constituted, substantially, the only evidence presented by the Commonwealth at trial. We conclude that, because of the illegality of appellant's original arrest, the admission of the statements was constitutional error, and therefore reverse.

On August 31, 1972, Simmons was found stabbed to death on South 59th Street in Philadelphia. After several months of fruitless investigation the police learned through questioning members of various street gangs that "Pops" Barton and a person named Tony, two members of the Master Street Moon Gang, had been "involved" in the incident. At approximately noon on November 22, 1972, Tony Whitaker, then seventeen years

[ 461 Pa. Page 410]

    old, was taken into custody by a Detective Ross and another detective and transported to the Police Administration Building for questioning. There he was given Miranda warnings and he signed a written waiver of his constitutional rights. In the course of the ensuing interview, appellant gave an oral statement in which he admitted that on August 31st he had accompanied John "Pops" Barton, whom he knew to be armed with a butcher knife, to the "turf" of a rival gang on South 59th Street. There Whitaker and Barton walked on separate sides of the street. Appellant heard Barton yell "58th Street" (an apparent reference to a member of the 58th Street gang), and turned to see Barton stabbing a man. Whitaker denied having participated in the assault and stated that he had immediately run from the scene. At 10:00 p. m. Whitaker's mother arrived at the station and in her presence the substance of the oral statement was reduced to writing. After signing this statement, appellant was released from custody.

Two days later, on November 24, 1972, acting upon the information provided by Whitaker, the police arrested Barton. Barton made a full confession in which he stated that Whitaker had participated in the attack by beating the victim, Benjamin Simmons, with his fists. Possessed of this additional information, the police went to appellant's home on November 27, 1972 and, with Whitaker's consent, took him to the Police Administration Building for further questioning. There Detective Grose informed Whitaker that Barton had been arrested and had given a statement accusing appellant of striking Simmons several times before Barton had used the knife. Whitaker was then again advised of his constitutional rights and again waived them in writing. He quickly then admitted, first orally and later in writing, that the events had occurred as Barton had described. After signing the written statement, appellant was formally placed under arrest.

[ 461 Pa. Page 411]

A motion was made to suppress Whitaker's two oral and two written statements. At the suppression hearing Detective Ross testified that at the time Whitaker was first apprehended on November 22 the police had no information that he had committed a crime; they had merely "picked up" Whitaker for questioning. The suppression judge found that the detention of appellant on November 22 constituted an arrest, and that the arrest was unlawful as without probable cause. He further held that the two statements made on that day were gained through exploitation of the illegal arrest and were, therefore inadmissible as "fruit of the poisonous tree." A contrary result was reached, however, as to the two statements made on the 27th. The court reasoned that although the taking of Whitaker into custody on that day amounted to an arrest, probable cause for it was supplied by the confession of Barton, and the later statements were, therefore, untainted. It is this latter determination which appellant challenges today.

We note, preliminarily, that the Commonwealth, having prevailed as to the admissibility of the statements made on November 27, had no occasion to challenge the findings of the suppression judge with respect to Whitaker's arrest and statements of November 22. Without belaboring the point, we think the record amply sustains these determinations. The Commonwealth does not dispute that the detention to which Whitaker was subjected on that day -- twelve hours of intermittent interrogation -- constituted an arrest. See Commonwealth v. Bishop, 425 Pa. 175, 181, 228 A.2d 661, 665 (1967). Neither does it argue that the arrest was valid. The police had no information about Tony Whitaker; they had merely learned, months previously, that a person known as "Tony" had been ...

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