September 19, 1980
COMMONWEALTH OF PENNSYLVANIA
GORDON KERR, APPELLANT
No. 34 April Term, 1979, Appeal from Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC 7802844.
Before Price, Hester and Cavanaugh, JJ. Cavanaugh, J. filed a dissenting opinion.
Judgment of Sentence affirmed.
CAVANAUGH, J. filed a dissenting opinion.
I dissent. In holding as it does the Majority substantially, if not totally, inhibits the application of the Davenport protections to prison inmates. As the Majority points out, an arrest may be accomplished by any act that manifests an intention to take a person into custody and subject him to the control of the person making the arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). The Majority concludes that because the inmate was already in custody his removal to the Behavior Adjustment Unit, in full compliance with prison regulations, could not constitute an arrest. Likewise, the interrogation by the State Trooper did not amount to an arrest as it was merely part of his investigation. This seeming logic, however, ignores the very purpose of prompt arraignment and seriously prejudices the prison inmate accused of criminal conduct. The fact that the Pennsylvania Supreme Court chose to take prophylactic measures to enforce the right to prompt arraignment underscores the fact that this court should be hesitant in restricting the application of the Davenport holding, regardless of the prisoner status of the defendant.
In Commonwealth v. Davenport it was stated:
[The] requirement of a prompt arraignment serves to protect the accused's right to know "the nature and cause of the accusation against him," his right to counsel, his right to reasonable bail. It also protects the accused's right to be free from unreasonable seiz ure of his person. (citations omitted).
471 Pa. 278, 283, 370 A.2d 301, 304 (1977). Further, the court stated, "The requirement of a prompt arraignment reflects the importance of having the accused informed of these rights by a neutral judicial authority, see Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973)." Id.
Although a prisoner's freedom from unreasonable seizures of his person and his right to bail may not be equivalent to the rights of unincarcerated suspects, this alone does not take the inmate outside the scope of Davenport. The right to counsel and the right to know the nature and cause of the accusation against him are as vital to those incarcerated as they are to any citizen accused of crime. What's more in a prison situation such as that before us, a prisoner could be deprived of this basic right to know what the accusations are against him, while being subjected to interrogation for an extended period of time. The fact that a suspect has been in custody as a prison inmate does not minigate the coercive influence of custodial interrogation.*fn1 Even Miranda warnings, although informing the inmate/suspect of his right to counsel, do not afford sufficient protection when the inmate is not cognizant of the seriousness or the nature of the charges against him. Further, the inmate's right to appear before a neutral judicial authority, rather than his accusers, was infringed uon.
As this court stated in Commonwealth v. Wallington, 238 Pa. Super. 427, 430, 357 A.2d 598, 600 (1976), "Because of the prison officials' discretionary powers in the maintenance of discipline, the Constitutional freedoms of prisoners are curtailed to a degree." However, custodial control and prison security cannot be excuses for overzealous conduct which deprives prisoners of their basic freedoms. Id.
The Majority cites Commonwealth v. Wallington, supra, as support for its holdings. In Wallington we held that in a prison environment the Fourth Amendment freedoms are justifiably limited to the extent that officials may search prisoners and seize contraband or evidence of suspected criminality. Thus we stated, "In his situation the prisoner, appellant, does not have available to him the full reach and panoply of Constitutionally-guaranteed rights because reasonable custodial needs of the prison have intervened to the degree herein accepted." 238 Pa. Super. at 431, 357 A.2d at 600. Here, however, the Commonwealth alleges no reasonable custodial needs to be met by post-poning arraignment. As indicated by the discussion above, even in a prison setting the Constitutionally-guaranteed rights of inmates must be protected. Therefore, some weighing process of these rights against the interest of secure prison facilities must be performed. As we stated in Wallington, "It is a difficult balance to maintain between protection of an individual's freedoms and the societal need for secure prisons." 238 Pa. Super. at 430, 357 A.2d at 600. In this case, however, the Majority gives greater weight to the Commonwealth's contention despite the lack of some showing of justification for the infringement upon the inmate's right to prompt arraignment.
*fn1 In Davenport the court recognized that one reason for the prompt arraignment rule announced in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), and extended by Davenport, was to guard against the coerciveness of custodial interrogations. 471 Pa. at 284, 301 A.2d at 305. It is worth noting that in the instant case the "arrest" was not made until the investigation yielded self-incriminating statements from the accused.