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EDWARD M. BY HIS MOTHER v. JOSEPH F. O'NEILL (10/16/81)

filed: October 16, 1981.

EDWARD M. BY HIS MOTHER, ANN M., TYRONE S. BY HIS MOTHER, EULACIE S., JOSEPH H. BY HIS GUARDIAN, ALEXANDER J. PALAMARCHUK, ESQUIRE, FOR THEMSELVES AND OTHER SIMILARLY SITUATED, APPELLANTS,
v.
JOSEPH F. O'NEILL, EDWARD G. RENDELL, UNKNOWN POLICE OFFICERS. IN THE INTEREST OF VANDER CLAYBORNE (A JUVENILE). APPEAL OF COMMONWEALTH. IN THE INTEREST OF RONALD FORREST (A JUVENILE). APPEAL OF COMMONWEALTH. IN THE MATTERS OF LUKE MCCULLOUGH, ERICK BRADELY (SIC), ANTONIO CLARK, VANDER CLAYBORNE, RONALD FORREST AND SAMUEL BUFFERT. APPEAL OF COMMONWEALTH



No. 1502 October Term, 1979, No. 1858 October Term, 1979, No. 1859 October Term, 1979, No. 1860 October Term, 1979, Appeals from Orders of the Court of Common Pleas, Civil Division, of Philadelphia County at Nos. 3904 April, 1979, 2257-79-3 DC No. 18-79-16285 J No. 216053, 2795-79-4 DC No. 15-79-21997, J No. 172468, DC9-79 10888, J192791 2257-79-3 DC 18-79-16285 J 216053 2795-79-4 DC 15-79-21997 J 172468 2304-79-3 No. 3784-79-4 3778-79-4 DC 1-79-6999 38880-79-5 DC 19-79-31753 J1 82550 J 112294 DC 6-79-24685 6-79-2587 (SIC) 6-79-24875 J 216925 2290793.

COUNSEL

Alexander J. Palamarchuk, Philadelphia, for Edward M. et al., appellants (at No. 1502).

Nancy Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellant (at Nos. 1858, 1859 and 1860), O'Neill, et al., appellees (at No. 1502).

Karl Baker, Assistant Public Defender, Philadelphia, for Clayborne, appellee (at No. 1858), Forrest, appellee (at No. 1859), McCullough, et al., appellees (at No. 1860).

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Montgomery and Hoffman, JJ. Spaeth, J., files a concurring and dissenting opinion in which Cercone, President Judge and Hoffman, J., join.

Author: Cavanaugh

[ 291 Pa. Super. Page 534]

The dispute in this case concerns the legality of Philadelphia Police Department Directive 95 which concerns juveniles in police custody and which established procedures for the fingerprinting and photographing of juvenile arrestees over fifteen years of age. On August 21, 1979, the Honorable Paul A. Dandridge, sitting in Juvenile Court, granted motions to expunge all fingerprint and photograph records obtained from juvenile defendants Vander Clayborne and Ronald Forrest pursuant to Directive 95. The Commonwealth's appeals from these orders are captioned and docketed as follows: In the Interest of Vander Clayborne, No. 1858 October Term, 1979; In the Interest of Ronald Forrest, No. 1859 October Term, 1979. On August 22, 1979, Judge Dandrige entered an Injunctive Order requiring the immediate cessation of the implementation of Directive 95. The Commonwealth's appeal from this order is captioned and docketed as In the Matters of McCullough, et al., No. 1860 October Term, 1979.

[ 291 Pa. Super. Page 535]

We ordered these appeals consolidated with the appeal in the case of Edward M. et al. v. O'Neill, et al., No. 1502 October Term, 1979. In that case the Honorable John J. McDevitt, III, sitting in equity, entered an order refusing to preliminarily enjoin the implementation of Directive 95. All of the orders appealed from have been stayed pending disposition of these appeals.

Directive 95 provides, in pertinent part, as follows:

SUBJECT: JUVENILES IN POLICE CUSTODY

I. POLICY

D. Juveniles 15 years of age and older who are taken into custody for the following offenses will be fingerprinted and photographed in accordance with the procedures outlined in this directive.

1. Murder

2. Retail Theft (only juveniles 16 and 17 years of age)

3. Manslaughter

4. Attempted Murder

5. Aggravated Assault

6. Kidnapping

7. Rape

8. Robbery

9. Burglary

10. Auto Theft

11. Arson of Occupied Premises

12. Involuntary Deviate Sexual Intercourse

13. Perjury

14. Tampering with a Witness

15. Violation of the Uniform Firearms Act

16. All Bench Warrants

17. Escape

IV. FINGERPRINTING AND PHOTOGRAPHING OF JUVENILES

A. All juveniles arrested for the offenses listed in Section I will be fingerprinted and photographed by CCTV

[ 291 Pa. Super. Page 536]

    personnel in the division wherein they were arrested prior to release or delivery to the Youth Study Center. Exception: Juveniles arrested for the offenses listed in Section I are to be processed at the Police Detention Unit, when the investigation is conducted in Detective headquarters.

1. Juveniles arrested in divisions without CCTV facilities will be transported to a division with CCTV as directed in Appendix "A". In these cases the juvenile will be investigated in the division of arrest. At the conclusion of the investigation the juvenile will be transported for processing. The juvenile will then be released to his parents at the district where he/she was processed, or delivered to the Youth Study Center. EXAMPLE: Juvenile arrested in 6th District. Investigated at 20th & Pennsylvania. Processed at 24th & Wolf. Released to parents at 24th & Wolf.

B. The assigned Juvenile Aid Division investigator will ensure that the juvenile is properly processed and released and that the necessary reports are properly prepared and distributed.

At the time Directive 95 was implemented there was no express statutory authority permitting the Philadelphia Police Department to fingerprint and photograph juveniles. Thus in both of the appeals before us the authority of the police to initiate such proceedings is challenged. Since the filing of the appeals in the instant case, legislation has been enacted specifically authorizing the fingerprinting and photographing of juveniles. 42 Pa. C.S.A. § 6308(c) provides:

§ 6308. Law enforcement records n.66

(c) Fingerprints and photographs. --

(1) Law enforcement officers shall have the authority to take or cause to be taken the fingerprints or photographs, or both, of any child 15 years of age and older who is alleged to have committed a delinquent act that, but for the application of this chapter, would constitute a felony

[ 291 Pa. Super. Page 537]

    or a violation of Subchapter a of Chapter 61 of Title 18 (relating to uniform firearms act).

(2) Fingerprint and photographic records shall not be disseminated to law enforcement officers or other jurisdictions, the Pennsylvania State Police or the Federal Bureau of ...


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