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COMMONWEALTH PENNSYLVANIA v. LOUIS J. ALLESSIE (06/27/79)

decided: June 27, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
LOUIS J. ALLESSIE, APPELLANT



No. 17 SPECIAL TRANSFER DOCKET, Appeal from the Judgment of Sentence of Judge Lindley R. McClelland, dated and entered July 14, 1978, at No. 589 of 1977, in the Court of Common Pleas of Erie County, Pennsylvania, Criminal Division.

COUNSEL

Michael E. Dunlavey, North East, for appellant.

Robert H. Chase, Assistant District Attorney, Erie, for Commonwealth, appellee.

Van der Voort, Larsen and Lavelle, JJ.*fn*

Author: Lavelle

[ 267 Pa. Super. Page 337]

At about 10:00 a. m. on February 2, 1977, the body of William Berry was found in the front seat of his 1974 Opel Manta automobile, which was parked in an alley in the City of Erie. On February 3, 1977, Nora Hornaman, the last person known to have seen decedent alive, telephoned the police and told them that she suspected Louis Allessie, the appellant, although, she said, she had no grounds for her suspicions. Other than her phone call, the police had no indication that he was involved in the crime.

At 6:38 p. m. February 4, 1977 appellant, who was then driving his motor vehicle, was stopped by two detectives at the intersection of 21st and Greengarden Streets, by the tactic of blocking the roadway with their vehicle. Allessie was asked to get out of his vehicle, his constitutional rights were read to him and a pat-down search of his clothing was conducted. The detectives refused to permit him to operate his own vehicle to the police station; instead, they placed him in the police vehicle and took him there. When they arrived, he was placed in an interrogation room and his constitutional rights were read to him again. During the time he was in custody he was visited by his parish priest, who observed him in handcuffs. At no time was he told that he was free to go from police custody. At about 3:30 a. m. on February 5, 1977 he gave a statement inculpating himself in the killing. The statement was made without physical abuse or threats from the police. A warrant for his arrest was issued at approximately 4:00 a. m. on February 5, 1977 and he was arraigned shortly thereafter. After a jury trial, he was found guilty of murder in the third degree.

[ 267 Pa. Super. Page 338]

Appellant filed a motion to have the inculpatory statement and a slip of paper taken from his wallet suppressed, he objected to the admission of these items at trial, and he has preserved this issue for appeal.

The Commonwealth contends that at most the appellant was subjected to "arrest, in the broadest sense for interrogation," and, since he was given his constitutional rights on several occasions prior to his confession, the suppression and trial court was correct in admitting his confession into evidence. We disagree.

Pa.R.Crim.P. No. 130 and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny are specifically designed to put a stop to the practice of arresting an individual and holding him during a lengthy period while continuing the investigation and the interrogation of the individual before arraigning him. Commonwealth v. Cherry, 457 Pa. 201, 205, 321 A.2d 611, 613 (1974). Rule 130 and Commonwealth v. Futch, supra, require that after an arrest an accused be brought before a magistrate for arraignment without unnecessary delay.

An arrest is accomplished by any act which indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Morton, 475 Pa. 374, 380 A.2d 769 (1977). An arrest cannot be disguised by the use of such terms as "investigatory detention" or detention "for interrogation." When a person is actually restrained of his freedom by the police and is taken into custody, an arrest has occurred in law and in fact and constitutional protections must be observed. Commonwealth v. Farley, 468 Pa. 487, 495, 364 A.2d 299, 302 (1976); Commonwealth v. Morton, supra.

When appellant's progress upon the public streets of Erie was interrupted by the positioning of a police vehicle across his path of travel, he was directed to get out of the vehicle. See Commonwealth v. Greber, 478 Pa. 63, 67, 385 A.2d ...


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