Nos. 487 and 492 January Term 1975, Appeals from Judgments of Sentence of Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 1075 and 1078 October Sessions 1973
Charles Lowenthal, 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., Gaele McLaughlin Barthold, Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts, J., filed a concurring opinion in which Manderino, J., joins. Nix, J., filed a dissenting opinion, in which Pomeroy, J., joins. Packel, former J., did not participate in the decision of this case.
These appeals are from the judgments of sentence imposed upon appellant, Rhett Bogan, following his conviction by a jury of robbery and murder of the second degree.
The charges against Bogan arose out of the fatal shooting of James Greenberg during the commission of a robbery inside his West Philadelphia grocery store-delicatessen on September 6, 1973.
Bogan advances four assignments of error as grounds for a new trial. The four asserted errors relate to the admission into evidence of his confession and the in-court identification testimony of two eyewitnesses to the murder.
For the reasons stated herein, we decide that the admission into evidence of the in-court identification of one eyewitness constituted error requiring reversal and a new trial. Since a new trial is mandated, in the interest of advancing the efficient administration of justice, we shall also consider the other three assignments of error which will undoubtedly be pertinent to the new trial. Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272 (1977).
First, Bogan contends that a statement given by him to police and introduced into evidence at trial was the product of an illegal arrest and should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975).*fn1
Bogan was initially arrested for purse snatching at 4:15 p. m. on September 21, 1973. He confessed to that charge on the same day at 5:15 p. m. at the Central Detective Division of the Philadelphia Police Department. The defense concedes that there was probable cause for the purse-snatching arrest and that Bogan's confession to that charge was made after an intelligent waiver of his constitutional rights.
Bogan was detained at Central Detective Division overnight and occupied a room with one Emmett Vinson, who was also in custody. The next morning Detective Pascali observed Vinson and Bogan, who were the sole occupants of the room, engaged in conversation. Shortly thereafter, at approximately 10:00 a. m. on September 22, 1973, Vinson informed Detective Pascali that Bogan had told him he shot a storekeeper in a West Philadelphia grocery store holdup about two weeks earlier when the man grabbed his jacket to
prevent his escape. Detective Pascali contacted the homicide division and was instructed by Sergeant Green to transport Bogan to homicide headquarters. Bogan arrived at homicide headquarters at 12:15 p. m. on September 22, 1973. Bogan contends that the transfer to homicide constituted a second arrest -- this one for murder and robbery -- which was not supported by probable cause.
Assuming without deciding that this did constitute a second arrest for which probable cause was required,*fn2 and that probable cause to arrest for the murder and robbery was lacking, thereby rendering this "arrest" illegal,*fn3 we conclude that Bogan's statement nonetheless need not have been suppressed on this ground. In Wong Sun, supra, 371 U.S. at 487-88, 83 S.Ct. at 417, the Supreme Court stated:
"We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case 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.'" [Citation omitted.]
The Court in Wong Sun noted that challenged evidence may be purged of the primary taint only if (1) it results from "'an intervening independent act of a free will,'" Wong Sun, supra 371 U.S. at 486, 83 S.Ct. at 416, or (2) if the connection between the arrest and the evidence has "'become so attenuated as to dissipate the taint.'" Id., 371 U.S. at 491, 83 S.Ct. at 419 [citation omitted].
Thus, under Wong Sun, all confessions made by an illegally arrested person are not per se inadmissible as trial evidence. United States v. Ceccolini, 435 U.S. 1054, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Brown v. United States, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (1977); Commonwealth v. Wright, 460 Pa. 247, 332 A.2d 809 (1975); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967), cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159. This, however, can be determined only on the facts of each case.
The United States Supreme Court in Brown v. United States, supra, noted several factors to be considered in scrutinizing an individual case: (1) whether Miranda warnings were given; (2) the "temporal proximity of the arrest and the confession"; (3) "the presence of intervening circumstances"; and, (4) "the purpose and flagrancy of the official misconduct". The voluntariness of the statement is, of course, a threshold requirement, Brown v. United States, supra 422 U.S. at 604, 95 S.Ct. at 2264, and the confession must also be "free of any element of coerciveness due to the unlawful arrest". Commonwealth v. Bishop, supra at 666. The burden of ...