No. 148 January Term, 1978 Appeal from the Order of the Superior Court, Entered on May 27, 1977, at October Term, 1976, No. 1567, Affirming the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, dated April 26, 1976, Granting an Application to Suppress and Suppressing Idetification Evidence, Physical Evidence and Statements as of Informations Nos. 500-504, March Term, 1976.
Steven H. Goldblatt, Deputy Dist. Atty., Eric Henson, Philadelphia, for appellant.
John W. Packel, Chief, Appeals Div., Defender Ass'n of Philadelphia, Leonard Sosnov, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., filed an Opinion in Support of Affirmance in which O'Brien and Nix, JJ., join. Larsen, J., filed an Opinion in Support of Reversal in which Eagen, C. J., and Flaherty, J., join.
The Court being equally divided, the order of the Superior Court is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
I agree with the conclusion of the suppression court, affirmed by the Superior Court, that the arrest of appellee Hadley Nelson is not supported by probable cause. These courts correctly held that the victim's identification of appellee following arrest, appellee's confession and physical evidence must be excluded as fruits of the illegal arrest. The confession must also be suppressed because appellee, a seventeen year old, was entitled to consult with an interested adult before waiving his Miranda rights. Accordingly, I would affirm.
The Opinion in Support of Reversal contends that appellee was not arrested when police summoned him to the patrol car. That Opinion's contention is based on a theory that appellee was not physically restrained, or otherwise "threatened or intimidated." This theory, however, has no support in our case law. In Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), this Court stated:
"An arrest may be accomplished by 'any act that indicates an intention to take [a person] into custody and [that] subjects him to the actual control and will of the person making the arrest . . . .'"
See also Steding v. Commonwealth, 480 Pa. 485, 391 A.2d 989 (1978); Commonwealth v. Brown, 230 Pa. Super. 214, 326 A.2d 906 (1974). Here the record is clear that appellee was under arrest from the moment he was so summoned by the arresting officer. When asked, "[A]t the point when you called him over to the car he wasn't free to go at that point, was he?," arresting Officer Passio, without qualification, responded "No." Record at 36a, N.T.S.H. 64.
The only information available to the arresting officer at the time he arrested appellee was that a black male had committed a rape in the neighborhood in which appellee was walking, some twenty minutes after the crime was reported. This evidence is clearly insufficient to support a finding of probable cause to arrest. Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978); Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976); Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975). Mere suspicion is insufficient, and the burden is on the Commonwealth to demonstrate with reasonable specificity that sufficient evidence of probable cause existed. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968).
This case is virtually identical to Commonwealth v. Sams, 465 Pa. 323, 350 A.2d 788 (1976), where this Court found insufficient evidence of probable cause to arrest. There,
"the arresting officer testified that he had no description of the alleged perpetrators of the homicide, other than 'Negro males' and no description of wearing apparel. All he knew was that they were running south on Eleventh and Girard Streets."
465 Pa. at 326, 350 A.2d at 789. Here, too, there is no basis for the officers to link appellee to the crime.
Since it is clear that the arrest was unlawful because not supported by probable cause, the "fruits" of the arrest must be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45
L.Ed.2d 416 (1975); Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975). Whether evidence obtained pursuant to an illegal arrest was acquired "by the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint," Wong Sun, supra, 371 U.S. at 487-88, 83 S.Ct. at 417, is to be determined from a totality of the circumstances. See Brown v. Illinois, supra. Here, the suppression court and the Superior Court correctly held that the victim identification, the confession and the physical evidence were derivative of the illegal arrest.
An additional ground for excluding the confession is that appellee, a juvenile, was not provided an opportunity to consult with an interested adult. The position of the Opinion in Support of Reversal, that the presence of an interested adult was not required for a knowing and intelligent waiver of appellee's constitutional rights, is in direct conflict with the case law of Pennsylvania. This Court in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975), reiterated the per se rule for waiver of constitutional rights by a juvenile. See also Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979); ...