No. 1762 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment Nos. 652-656, May Session, 1973.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Leonard Sosnov, Assistant Defender, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, concurs in the result. Spaeth, J., files a concurring and dissenting opinion. Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 351]
On May 14, 1976, appellant, Martin Diggs, was convicted by a jury of burglary and six counts of aggravated robbery. Post-trial motions were argued and denied and sentence imposed. On this direct appeal, appellant raises several assignments of error in rulings of the trial court. Because we find his contentions without merit we will affirm.
[ 260 Pa. Super. Page 352]
Testimony at the suppression hearing and at trial revealed the following scenario. On April 5, 1973 at 7:40 A.M., appellant walked into the Baldwin Dairies, at Foulkrod and Duffield Streets in Philadelphia, requesting employment. An employee, Arthur Rawes, replied there were no positions open at that time, and appellant left the premises, passing by one Atwood Purcell who observed the foregoing events. Five or ten minutes later, three armed men entered the dairy and ordered all inside to lie on the floor. Present were Rawes, Purcell, Greenard Stanley, and members of the Baldwin family, George, John, and Wayne. John was ordered to open the safe while Wayne was told to find the key to the men's room. After taking money from the safe and from several of the individual victims, the robbers forced all present into the men's room. The door was shut and the robbers fled. Minutes later, the victims cautiously existed the men's room, whereupon George Baldwin called the police.
Detective Daniel Brooker of the Philadelphia Police Dept. was among those responding to the call and, upon arriving, wrote down descriptions of all perpetrators. Later that day, the victims were shown photographs by Brooker, and Rawes picked the photo of one James Price as being one of the robbers. Appellant's photo was not included in this array.
Appellant was arrested on April 12, 1973 on suspicion of the robbery and was interviewed by Brooker at the Northeast Police Division. As appellant had a prior arrest record, Brooker ordered a photo of him from the crime lab to be shown to the victims. That photo, however, was delayed in arriving from the crime lab, and so Brooker himself photographed appellant and ture for future arrays. On April 13 and 14, George Baldwin and Atwood Purcell, respectively, picked appellant's photo out of an array shown them by Brooker. Baldwin and Purcell also identified appellant at the Preliminary Hearing and at trial. None of tl. None of the other victims could identify appellant.
[ 260 Pa. Super. Page 353]
Appellant's first contention is that the identification testimony should have been suppressed.*fn1 Both in proceedings below and in this Court, the Commonwealth has conceded that appellant's arrest was not supported by probable cause. (N.T. 103, Appellee brief at p. 7). But the Commonwealth has consistently argued that the identifications were not tainted by this initial illegality because they had a basis independent of the improper arrest. In determining what consequences flow from initial illegalities, we must always return to the guiding principles of Wong Sun v. U. S., 371 U.S. 471, 487-8, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963):
"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 ...