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decided: March 29, 1976.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1973, Nos. 1143 and 1144, in case of Commonwealth of Pennsylvania v. Corbin Nicholson.


Carolyn Engel Temin and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.

Elaine DeMasse and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Hoffman, J. Cercone and Van der Voort, JJ., join in this dissenting opinion.

Author: Price

[ 239 Pa. Super. Page 176]

This Commonwealth appeal concerns the validity of an order suppressing the testimony of a co-defendant. We have carefully reviewed the record and must conclude that the testimony was properly suppressed.

Appellee was charged with assault and battery, aggravated assault and battery, assault with intent to kill, aggravated robbery, and robbery. The facts indicate that on February 14, 1973, Mrs. Cheryl Murphy was brutally assaulted by two men in a parking lot outside of a food market in Philadelphia. Mrs. Murphy was robbed and stabbed twice, one of the stab wounds penetrating her heart. This vicious attack was witnessed by Charles Parrish and Cynthia McShane, who came to the aid of Mrs. Murphy and took her to a hospital.

Although Mrs. Murphy was unable to identify either of her assailants, both Mr. Parrish and Miss McShane gave descriptions of the attackers. Both were described as black, of medium build, fifteen to eighteen years old,

[ 239 Pa. Super. Page 177]

    five feet nine inches and five feet six inches tall. One was wearing a green army field jacket and the other was wearing a brown car coat and a red cap. Neither witness was able to give a description of the facial features of the assailants, but both agreed that neither wore glasses and that one of them had a mustache.

Later that night following the attack, Officer Raymond Lackey of the Philadelphia Police Department made a "head stop" of appellee and co-defendant James Honesty because appellee was wearing clothing which fit the description of that worn by one of the attackers. However, there was no arrest made at this time because appellee and Honesty did not fit the descriptions given by the eyewitnesses and also because they satisfactorily answered the officer's questions. This stop was recorded on a "75-48" form which was supposed to be submitted to the detective in charge of the case.

A short time after the head stop, appellee was formally arrested. There is no question that this arrest was illegal as not being supported by probable cause. Appellee was questioned and he denied any knowledge of the incident. In addition, the eyewitnesses stated that appellee was not one of those involved in the stabbing. Appellee informed the police that he had been with James Honesty for most of the day in question.

The police, however, acting on the information obtained from appellee, secured a picture of James Honesty, and Mr. Parrish identified him as being one of those involved in the attack. After Honesty was questioned, he implicated appellee.

All statements made by appellee at the time of his arrest were later suppressed as the product of the illegal arrest. At trial, however, the Commonwealth attempted to utilize the testimony of Honesty, who had agreed to testify in exchange for a lighter sentence, and of a police officer who had interrogated Honesty. Appellee objected and the trial judge sustained the objection, holding that this testimony was a direct result of the illegal arrest

[ 239 Pa. Super. Page 178]

    and as such was the "fruit of the poisonous tree."

Following the sustaining of appellee's objection, the Commonwealth petitioned this court for a Writ of Prohibition against the trial court. Argument was held before Judges Hoffman and Spaeth, and the petition was denied. The Commonwealth then petitioned the Supreme Court for the same relief. An agreement was arrived at whereby the trial court's ruling would be treated as a suppression order and a mistrial would be declared. The Commonwealth would then be permitted to appeal the suppression on its merits. It is that appeal with which we are now concerned.

When dealing with cases which involve "the fruit of the poisonous tree," the proper question concerning admissibility of such evidence is, "'. . . whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint,' Maguire, Evidence of Guilt, 221 (1959)." Wong Sun v. United States, 371 U.S. 471, 488 (1965). The Commonwealth contends that they would have discovered Honesty's identity by means wholly independent of the illegal arrest of appellee, thus removing the taint. The Commonwealth argues that Honesty would have come to the attention of the investigating officers as a result of the "75-48" report filled out by the officer who originally made the head stop of appellee and Honesty, by a general ...

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