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COMMONWEALTH PENNSYLVANIA v. MILTON G. HOWE (02/18/77)

SUPERIOR COURT OF PENNSYLVANIA


decided: February 18, 1977.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MILTON G. HOWE

Appeal from the Adjudication and Order dated May 13, 1976, of the Court of Common Pleas of Berks County, Criminal Division, at No. 76028501. No. 1814 October Term, 1976.

COUNSEL

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellant.

Charles A. Haddad, Reading, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 246 Pa. Super. Page 9]

On May 13, 1976, the lower court issued an order against the Commonwealth suppressing a statement given by appellee to the police. The Commonwealth has appealed, as is its right. Commonwealth v. Deren, 233 Pa. Super. 373, 337 A.2d 600 (1975).

At 1:30 a.m. on February 26, 1976, Patrolman Byron C. Burns of the Spring Township Police Department responded

[ 246 Pa. Super. Page 10]

    to a call from a citizen by proceeding to the Weller's Tavern parking lot in Reading, Pennsylvania. There, he met the complainant, Durrell Chappell. After a discussion with Chappell, Burns began an investigation of the parking lot and eventually discovered the appellee sitting inside one of the parked automobiles. Appellee was busily attempting to install a tape deck into the dashboard of the car.

Patrolman Burns observed in plain view, several other consumer electronic devices inside the car. Some of these items were identified by Mr. Chappell as belonging to him. Burns read appellee his rights from a card and appellee indicated his understanding of them. Appellee was then placed under arrest. At this time, Burns noticed that appellee's breath smelled of alcohol. His speech was slurred and he had to be helped to the patrol car.

Appellee's car was impounded and towed to the stationhouse. There, Burns prepared an affidavit for a search warrant and a warrant was issued. Appellee was told that his car was going to be searched and he then, for the first time, volunteered to give a statement. Before the search was conducted, Donald W. Schlegel, chief of the Spring Township Police, took appellee's statement in which appellee confessed to the theft in the Weller's Tavern parking lot and also to other previous thefts, one of which is the subject of the present prosecution.*fn1

The lower court suppressed the statement for the purposes of this prosecution, relying on three grounds. First, the court held that Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969), requires that a defendant be informed of the nature of the crimes which are being investigated. At the time that appellee gave the statement,

[ 246 Pa. Super. Page 11]

    he was not informed that the Beef and Beer theft was being investigated. The statement was taken in relation solely to the Weller's Tavern theft. Therefore, according to the lower court, the statement must be suppressed.

The lower court's second ground, though inartfully expressed, seems to be that the statement is "fruit of the poisonous tree." The search warrant issued for the impounded automobile was subsequently determined to be invalid. Since the items could not have been identified without a search, appellee would not have implicated himself in the present crime if he had not believed that the car would be validly searched. In fact, the statement was not signed by appellee until after the search had been made.

Finally, the lower court held that appellee's intoxication may have precluded a voluntary statement. According to the lower court's opinion, its decision was not based on any one of the above three grounds, but on the totality of the circumstances taking into account those three factors.

I

In Commonwealth v. Collins, supra, the defendant was convicted of murder. On appeal, he contended that the trial court had erred in failing to suppress his oral statement because, prior to giving the statement, he had not been informed of the crime which was being investigated. A plurality of the Supreme Court justices agreed. The Commonwealth contends that Collins has been substantially weakened by Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), and Collins v. Brierly, 492 F.2d 735 (3d Cir. 1974). In the latter case, the Third Circuit Court of Appeals specifically disagreed that a defendant must be informed of the nature of the charges in order to make a valid waiver of his rights.

[ 246 Pa. Super. Page 12]

    at 175, 320 A.2d at 355. Therefore, it is no longer accurate to state that a defendant must be informed of the nature of the crimes leading to the investigation in order to make a valid waiver of his rights. Clearly, all that must appear is that the defendant was aware of the nature of the charges.

Obviously, the present case can be distinguished from Collins and its progeny. In those cases, the allegation was that the defendant was not informed of the nature of the charges leading to the investigation. A confession given totally without a point of reference was the evil to be prevented. See Commonwealth v. Jacobs, supra. In this case, while perfectly aware of the crime for which he was being investigated, appellee made statements about another. Appellee knew the general nature of the transaction which was being investigated, and, therefore, the purpose of the rule, as interpreted in Richman, has not been violated.

Furthermore, there are practical reasons for refusing to broaden the Collins rule to encompass the present situation. It would be impossible for the police to comply with the rule as interpreted by appellee. In this case, the police were not even aware of the other crimes. Therefore, they could not have informed appellee of the nature of them at the time that his statement was taken.

II

The court's second ground is no more solid. It is true that appellee's statement was given with the prospect of a legal search in mind. However, at the time that the police told appellee of their intent to search, a legal search could have been made. The search was invalidated due to technical deficiencies in the warrant. To hold that appellee's prior statement is tainted because induced by the prospect of a legal search which was not legally executed is to lose all sight of the purposes behind the exclusionary rule.

[ 246 Pa. Super. Page 14]

In order to determine whether evidence must be excluded due to illegal police activities, it must be determined "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." Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).

What we must determine, then, is whether the evidence in this case was obtained by exploitation of the illegal search. The word "exploitation" is important, for it implies a causal connection between the illegality and the evidence in question. Indeed, one of the major exceptions to the exclusionary rule occurs when it can be said that the connection between the illegal police conduct and the challenged evidence has "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939).

Therefore, we must analyze the connection in this case between the illegal search and appellee's prior statement. Appellee contends that the illegal search was one of the factors inducing him to make a statement. This characterization is not entirely accurate, however, for no search had been made when appellee confessed. Appellee was not confronted with illegally seized evidence, nor was he confronted with the fact that the police had searched his automobile. Thus, it was the prospect of a search, or appellee's anticipation of a legal search, which led him to confess.

At the time of appellee's confession, the police had done nothing illegal. It was not illegal to tell appellee that a search was to be made because the police could legally have executed such a search and the police intended legally to execute such a search. Only after appellee had given his statement did any police illegality occur.

[ 246 Pa. Super. Page 15]

Therefore, no illegality was exploited to obtain appellant's confession.*fn2

III

The lower court's final ground of decision was that appellee may have been under the influence of intoxicating liquor. Both Patrolman Burns and Chief Schlegel testified that appellee was lucid at the time he gave the statement. The detail and clarity of the answers in the statement seem to reflect sobriety. On the other hand, Burns testified that appellee's speech was slurred and his mobility impaired at the time of the arrest, and the statement was given only one and one-half hours later.

The lower court judge did not specifically find that appellee's intoxication rendered him incapable of knowingly and intelligently waiving his rights. He found instead that intoxication was one of the totality of circumstances leading him to conclude that the Commonwealth had not met its burden of proving that the statement was voluntary.

Of course, we cannot substitute our view of the facts for that of the lower court, and, if the lower court had found upon sufficient evidence that the degree of intoxication was independently enough to make appellant's statement involuntary, we would affirm. However, the lower court did not do so. It regarded intoxication as one of three factors in its decision, and, as the preceding discussion demonstrates, two of those three

[ 246 Pa. Super. Page 16]

    factors were erroneous. Thus, whether the suppression order was proper depends on whether appellee's intoxication, alone, was sufficient to prevent appellee from voluntarily giving a statement. This is a question of fact to be decided by the suppression court. Therefore, this case must be remanded for such a determination.

The order of the lower court is vacated and the case is remanded for consideration in light of this opinion.


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