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decided: October 8, 1976.



Gerald P. Ginley, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion. Eagen, J., concurred in the result. Jones, C. J., dissents.

Author: Manderino

[ 468 Pa. Page 550]


Appellant, Richard M. Brooks, was tried before a judge and jury and, after four days of trial, was found guilty of murder in the first degree, aggravated assault, possession of an instrument of crime, and criminal conspiracy. Post-verdict motions were denied on January 31, 1975, and sentence of life imprisonment was imposed for the murder conviction. Maximum sentences, to be served concurrently, were imposed for the other offenses. The murder conviction was appealed directly to this Court; the other convictions, which were appealed to the Superior Court, were transferred here.

Prior to trial, a hearing was held on appellant's motion to suppress certain statements and physical evidence.

[ 468 Pa. Page 551]

This motion to suppress was denied and the statements and evidence were introduced at appellant's trial. Appellant now argues, as he did below, that the statements should not have been allowed into evidence at trial because they were obtained as the result of an illegal arrest, and therefore violated rights guaranteed by the Fourth Amendment to the United States Constitution, and by Art. 1, Sec. 8, of the Constitution of this Commonwealth. See United States v. Wong Sun, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Because we agree that these statements were impermissably admitted into evidence against him at trial, we need not now consider the other allegations of error raised by appellant here.

The evidence presented by the prosecution at the pretrial suppression hearing indicated that Detective O'Brien was the police officer assigned to investigate the homicide for which appellant was arrested. While at the scene of the crime, Detective O'Brien received information from witnesses to the shooting, and other young people in the area, that the "Cedar Street gang" was responsible, and that this gang had been involved in several similar incidents in the past few weeks. Detective O'Brien then began to patrol the area looking for suspects, and ". . . tried to cultivate more information." (N.T.Supp. 5). At approximately 11:30 p. m., December 10, 1973, approximately three hours after the shooting, Detective O'Brien received information from police headquarters that an anonymous phone caller had stated that "Brooks from Baltimore Avenue was one of the persons responsible for this shooting." Detective O'Brien also received information that several persons responsible for the shooting were in a bar located at Rogers Street and Baltimore Avenue. The source of this information does not appear on the record. At approximately 12:45 a. m., December 11, 1973, while patrolling near the intersection of Rogers Street and Christian

[ 468 Pa. Page 552]

Street (near the location of the bar named by the anonymous caller) in an effort to locate members of the Cedar Street gang and obtain information Detective O'Brien stopped appellant who was walking on the street to ask him some questions. The detective's intent in questioning appellant was to ascertain the validity of the anonymous telephone tip, and to ascertain the identity of "Brooks from Baltimore Avenue." At this time the detective did not know appellant's identity. In fact, he knew nothing about appellant but suspected that the person walking along the street might be a Cedar Street gang member. Detective O'Brien asked appellant his name and was told "Richard Brooks." The detective then asked appellant where he lived, and upon hearing that appellant lived on Baltimore Avenue, placed appellant under arrest. Appellant was then taken to the police administration building, arriving there at approximately 1:20 a. m., December 11, 1973. He was given standard Miranda warnings, and indicated his desire to give a statement. At that time he admitted driving a car similar to the one used in the shooting, but denied any complicity in the act. This interview ended at 2:05 a. m. During the course of this interview appellant also indicated he would consent to a polygraph examination. Appellant was eventually taken to the polygraph examination room and was seen by the polygraph examiner at approximately 2:55 a. m. The polygraph examiner spoke with appellant concerning the facts surrounding the polygraph examination from 3:05 a. m., until 3:50 a. m. At 3:50 a. m., prior to the giving of the actual polygraph examination, appellant admitted to the polygraph examiner that he had been involved in the shooting, and gave certain details as to the events of the preceding evening. Subsequently, appellant also gave detectives the key to his apartment where a .22 caliber rifle was found and confiscated. This statement, and the rifle along with testimony from the medical examiner that decedent died as

[ 468 Pa. Page 553]

    a result of a gunshot wound of the chest, and that a .22 caliber bullet with markings similar to test bullets fired from appellant's rifle had been removed from the deceased's body, was introduced into evidence at appellant's trial.

Based on the above facts, the prosecution argues that Detective O'Brien had probable cause to arrest appellant. With this conclusion we cannot agree. Probable cause is essential to the legality of an arrest. Commonwealth v. Culmer, 463 Pa. 187, 344 A.2d 487 (1975); In re Betrand, 451 Pa. 381, 303 A.2d 486 (1973). Probable cause exists if the facts and circumstances within the knowledge of the arresting officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). Stated another way,

"[t]he crucial test is whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator."

Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119, 123 (1974).

See also Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975).

It has also been held that hearsay information is sometimes sufficient to establish probable cause. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). When probable cause for a warrantless arrest is based on such hearsay information, however, the arresting officer must have two kinds of additional information before probable cause will be deemed to have been established. As we stated in Betrand, supra,

[ 468 Pa. Page 554451]

Pa. at 386, 303 A.2d at 488, when the hearsay information is supplied by an anonymous informer,

". . . in order to assure that the tip is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect participated in the [crime] . . . [and] in order to reduce the possibility that a tip meeting the first standard is merely a well constructed fabrication, the officer must have some reasonable basis for concluding that the source of the tip was reliable."

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972); cf. Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972).

Applying this Aguilar-Spinelli standard to the facts asserted by the prosecution to show probable cause in the instant case, it becomes abundantly clear that appellant's arrest was based on information insufficient to establish probable cause. At the time he arrested appellant, Detective O'Brien had available the following: (1) information from area residents that the "Cedar Street gang" was responsible for the murder, and that the "Cedar Street gang" had been involved in other violent incidents in the recent past; (2) information (from an unknown source) that the perpetrators of the homicide could be found in a bar located at Rogers Street and Baltimore Avenue; (3) information from an unknown informant that "Brooks from Baltimore Avenue" was one of the participants in the homicide; ...

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