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January 30, 1979

Special Agent Charles ANDREWS et al.

The opinion of the court was delivered by: DITTER

This action is brought under the civil rights laws against various individual officers of the Philadelphia Police Department to redress alleged violations of the plaintiff's constitutional rights. *fn1" The defendants have moved for summary judgment on the ground that the issues raised in this suit have been previously litigated and decided unfavorably to plaintiff. For the reasons stated herein, defendants' motion must be denied.


 At approximately 2:10 on the morning of August 8, 1975, plaintiff James Murphy was arrested by several of the defendants on the charge that he had murdered one Joseph Bosley. During the course of his ensuing detention and interrogation, plaintiff claims that the defendants viciously beat and abused him in an effort to obtain a confession. The beating is alleged to have continued throughout the morning, and plaintiff states that defendants refused his repeated pleas for the assistance of counsel. He did in fact make three separate statements to the police, at least two of which are alleged to have been exculpatory. *fn2" As a result of the beatings, plaintiff charges that he received "laceration of the mouth, painful bruises all over his body including great pain in the groin and back area, all of which caused him great pain, both physical and mental." Complaint, P 32.

 Prior to his criminal trial on the murder charge, plaintiff moved to suppress all oral and written statements given by him to the authorities on the ground that they were the result of illegal duress and coercion. After a lengthy hearing, the Honorable Bernard J. Goodheart of the Court of Common Pleas, Philadelphia County, denied the suppression motion, having found that plaintiff's statements were freely and voluntarily made. When the case proceeded to trial on the underlying charge, however, another person confessed to the murder, and plaintiff was acquitted.


 In this action, plaintiff seeks to recover damages for the violations of his civil rights that occurred when defendants allegedly beat him and denied him his right to counsel, all in an effort to elicit incriminating statements. Defendants move for summary judgment on the ground that the issues raised by the instant complaint are substantially the same as those already adjudicated before Judge Goodheart at the suppression hearing. Defendants point out that Judge Goodheart found the statements to have been made voluntarily, a finding which implicitly must embody a conclusion that there was no beating. *fn3" Admittedly, plaintiff took no appeal from the finding. They argue, therefore, that the order denying Murphy's motion to suppress the statements became final, and relitigation of substantially the same questions is barred by the doctrines of res judicata and collateral estoppel.

 At the outset it should be noted that a criminal prosecution necessarily involves a different cause of action and different parties than any subsequent civil suit, even though both proceedings may based on the same underlying incidents. Therefore, the doctrine of res judicata has no applicability in the subsequent civil action. On the other hand, the adjudication of issues in a criminal case can have collateral estoppel ramifications in a later civil suit. 1 B Moore's Federal Practice P 0.418(1), at 2701 (2d ed. 1975). Thus, while the parties to the civil action are barred from relitigating those issues actually determined in the prior criminal prosecution, they are free to raise any issues that were not previously decided. The fact that such issues Could have been adjudicated is of no consequence. Neaderland v. Commissioner of Internal Revenue, 424 F.2d 639, 641-42 (2d Cir.,), cert. denied, 400 U.S. 827, 91 S. Ct. 53, 27 L. Ed. 2d 56 (1970); Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.) cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970).

 In the instant case, plaintiff argues that in denying the motion to suppress, Judge Goodheart did not find that Mr. Murphy had not been beaten. Rather, I am told, he found only that the statements had been given voluntarily. Therefore, although his brief does not expressly so state, plaintiff is really arguing that the question of physical beatings can be litigated in this action since it was not actually raised or decided before.

 There is considerable merit in this position. The enumeration of reasons submitted to the Court of Common Pleas in support of Murphy's motion to suppress alleged that the statements in question were "extracted" from the plaintiff, were "given by him against his will," were the product of "the coercive tactics of the police," and were the result of "overbearing of the defendant's (Murphy's) will. . . ." *fn4" Defendants' Memorandum of Law in support of Defendants' Motion for Summary Judgment, Ex. A. The motion papers did not expressly raise the charge of physical beatings, and the Findings of Fact and Conclusions of Law issued by Judge Goodheart made no reference whatever to the beating allegations. It could well be argued, therefore, that the collateral estoppel doctrine does not bar us from determining whether the beatings took place since that question was not previously raised or decided. However, the parties have not supplied me with a transcript of the suppression hearing. The hearing was rather lengthy, extending over a two-day period, and without a transcript, it cannot be said with certainty that the evidence presented before Judge Goodheart did not include any reference to the beating allegations. See Kauffman v. Moss, supra, 420 F.2d at 1274-75; Basista v. Weir, 340 F.2d 74, 81-82 (3d Cir. 1965).

 Nevertheless, I need not inquire any further into the record of the criminal suppression hearing. Rather, I hold that even if the issue of physical beatings had been expressly raised and decided on the suppression motion, relitigation of the same issue here would not be precluded by the doctrine of collateral estoppel. In United States v. Wallace & Tiernan Co., 336 U.S. 793, 69 S. Ct. 824, 93 L. Ed. 1042 (1949), the Court dealt with a claim of res judicata in a civil anti-trust suit which followed a criminal anti-trust prosecution against the same defendants. *fn5" Pursuant to a subpoena, the defendants had produced certain documents for use in a grand jury investigation. An indictment was subsequently returned, charging defendants with violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. ยงยง 1 and 2. This indictment was dismissed, however, on the ground that women had been excluded from the grand jury panel. 336 U.S. at 797, 69 S. Ct. at 827; see Ballard v. United States, 329 U.S. 187, 67 S. Ct. 261, 91 L. Ed. 181 (1946).

 The res judicata issue arose in relation to three separate orders of the district court. At the same time that it dismissed the indictment, the district court ordered the government to return the documents which defendants had previously produced. Secondly, the government was ordered to return photostatic copies of the same documents. Thereafter, the prosecutors filed an information charging the same offense as that charged in the previous indictment. At this point, on the motion of the defendants, the district court held a hearing, after which it entered a third order " "precluding and restraining the United States from using in any way or for any purpose any knowledge, information or evidence obtained from . . .' " the documents in question. 336 U.S. at 801, 69 S. Ct. at 828.

  In the subsequent civil suit, after all criminal proceedings had been concluded, the government once again sought production of the same documents by means of a subpoena duces tecum. The district court quashed the subpoena, relying primarily on the Fourth Amendment. *fn6" On the government's appeal to the Supreme Court, however, the question of res judicata was also advanced, and the Court's discussion of this point is most instructive for our purposes.

 Defendants in the case now before me rely heavily on the fact that plaintiff, Murphy, failed to take an appeal from Judge Goodheart's denial of the suppression motion. This, it is said, renders the order a final judgment entitled to full collateral estoppel ramifications. A similar argument was made and rejected by the Supreme Court in Wallace & Tiernan. There, it will be remembered, the district court had ordered the return of the defendants' documents at the same time that it ordered dismissal of the anti-trust indictment. The government took no appeal from that order. The defendants in the civil suit argued that by its failure to appeal, the government lost its right to challenge the return order, and it was thereby barred from any future use of the documents under the doctrine of res judicata. The Supreme Court pointed out, however, that the government had every reason to believe dismissal of the indictment to have been proper. *fn7" In turn, the dismissal of the indictment created a situation where the defendants were unquestionably entitled to return of their documents. "Consequently, an appeal from the return order alone, even if such an appeal could have been taken, would have availed the Government nothing." 336 U.S. at 800, 69 S. Ct. at 828. Thus, the Court refused to apply the res judicata doctrine as a bar to use of the evidence.

 In the present case, although Murphy did not prevail on his motion to suppress, he was acquitted of the underlying murder charge. He therefore had nothing whatever to gain by appealing Judge Goodheart's refusal to suppress evidence. *fn8" In these circumstances, it would be grossly unfair to hold that his failure to appeal bars him from raising any issues litigated at the ...

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