No. 283 January Term, 1976, Appeal from the Judgment of Sentence of January 12, 1976, of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at No. 2085 March Term, 1971
Lee Mandell, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Robert Fogelnest, Asst. Dist. Atty., Glen Gitomer, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., took no part in the decision of this case. Manderino, J., files a concurring opinion. Roberts, J., concurs in the result.
Appellant, Julius Wideman, was convicted by a jury of murder of the second degree. Post-verdict motions were denied and sentence imposed and this direct appeal followed.
The facts are as follows. James Allen was beaten and shot on February 28, 1971 at 1:15 a. m.; he was pronounced dead on arrival at St. Joseph's Hospital, Philadelphia. Among the victim's personal effects was a Pennsylvania automobile owner's registration card in the name of appellant. Wideman was contacted by police and voluntarily went to police headquarters, with his wife, at approximately 5:00 a. m. on February 28. The police found blood on appellant's dark colored Buick Electra 225, a car similar to the one driven by the victim's assailant. Appellant was warned of his constitutional rights and subsequently gave an oral and a written confession.
Appellant was initially tried in July, 1971, for the above homicide and both confessions were introduced into evidence at that trial. On appeal, this court reversed the judgment of sentence and granted appellant a new trial on the basis of
the failure of the police to adequately warn appellant of his Miranda rights prior to his oral statement. This court further suppressed appellant's subsequent written confession as being the fruit of the poisonous tree. Commonwealth v. Wideman, 460 Pa. 699, 334 A.2d 594 (1975). This appeal arises from the judgment of sentence imposed at the retrial.
Appellant argues that the trial court erred in admitting into evidence a gun which allegedly had been used in the slaying. Police found the gun in a sewer at the corner of Bouvier and Berks Streets in Philadelphia after appellant gave police this information in his confessions, which this court later ruled inadmissible. Appellant now argues that the gun was the fruit of the illegal confession, and, therefore, is inadmissible. We agree with appellant and reverse the judgment of sentence.*fn1
This court, in Commonwealth v. Whitaker, 461 Pa. 407, 412-13, 336 A.2d 603, 606 (1975), in discussing the fruit of the ...