Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, dated December 30, 1975, at Nos. 1940, 1941 June Term, 1975.
Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellant.
Larry A. Colston, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Hoffman, J., files a dissenting opinion in which Cercone, J., joins.
[ 248 Pa. Super. Page 125]
Appellee, John B. Waters, was convicted of rape*fn1 and burglary.*fn2 The lower court granted appellee's post-verdict motion for a new trial, holding that his arrest and subsequent confession were tainted by an illegal search, and, therefore, the confession should have been suppressed.*fn3 The Commonwealth has appealed from this order.
At approximately 5:30 a.m. on May 25, 1975, the prosecutrix was awakened, blindfolded and raped by the appellee, who had broken into her apartment. Although she was unable to see her assailant's face, she informed the police
[ 248 Pa. Super. Page 126]
that he was black, about five feet one inch in height and in his early twenties. While interviewing Geraldine Hopkins, a tenant in the same apartment building, Detective Lubiejewski was informed that, at approximately the same time as the alleged rape, a Negro male, who lived in apartment A-6 and identified himself as "John," unsuccessfully requested admittance to her apartment. Detective Lubiejewski also learned from his supervisor that an anonymous caller had stated that "John, the man that did the rape, is now in apartment A-6."
Detective Lubiejewski and two associates approached apartment A-6 and knocked on the door. Although no one answered, the detectives heard "muffled sounds" from within the apartment. They knocked a second time and announced their identity. When no one answered, they forced the door and entered. The muffled sounds were emanating from a radio in the kitchen; however, the premises were unoccupied.
The detectives found two letters addressed to Wanda Conyers, apartment A-5, on a table next to the door.*fn4 Detective Lubiejewski looked through a telephone directory, which he found on a table, and discovered the name and address of appellee's mother. The detectives telephoned Mrs. Waters and learned that appellee was sleeping at her home. Appellee was arrested at approximately 10:30 a.m. and taken to West Detective Division where he waived his Miranda rights and gave an inculpatory statement.
The Commonwealth argues that even assuming the illegality of the search, appellee's statement was admissible under the Supreme Court's decision in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Initially, we note that the basic question is "whether, granting establishment of the primary illegality, the evidence to
[ 248 Pa. Super. Page 127]
which [the] 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, supra at 488, 83 S.Ct. at 417. Moreover, "[m]ere 'but-for' causation is not sufficient to establish the causative relationship necessary to taint . . . post-illegal arrest verbal evidence." Commonwealth v. Bishop, 425 Pa. 175, 182 n.5, 228 A.2d 661, 665 n.5 (1967); see also Wong Sun v. United States, supra; Commonwealth v. Richard, 233 Pa. Super. ...