NO. 672 PITTSBURGH, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at Nos. 7901310A and 7901311A.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Dara A. DeCourey, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Rowley, Montemuro and Van der Voort, JJ.
[ 310 Pa. Super. Page 187]
A jury found appellant guilty of third degree murder for the death of Lynette Weston, age 10, and of first degree murder for the death of Lloyd Weston, age 10, and recommended a death sentence on the first degree murder conviction. Trial Judge Joseph Ridge refused post-trial motions for a new trial and in arrest of judgment, but did grant a motion to vacate the death sentence.
Appellant raises four contentions before this court. Issues designated I and IV are interrelated and will be discussed jointly.
Appellant was the stepbrother and boarder of Yvonne Weston, the mother of the two children. At about 11:00 P.M. on February 16, 1979, Mrs. Weston left her home, entrusting the care of the two children to the appellant. The children were asleep. From about 11:30 P.M. to about 4:45 A.M. the next morning, Mrs. Weston's brother Daniel Anderson was in the home drinking beer and listening to records. When he departed, the living room was in reasonably
[ 310 Pa. Super. Page 188]
good order; appellant was present; and the children apparently sleeping in their beds. At about 7:00 A.M. on February 17, 1979, when Mrs. Weston returned home she found the living and dining rooms in complete disarray; the bodies of the two children were lying on the living room floor, and the appellant was missing.
Shortly thereafter appellant telephoned Mrs. Weston several times from some undisclosed phone,*fn1 asking if the children were all right. He claimed he had been visited in the home by three men looking for another of Mrs. Weston's brothers who forced him to leave the home. On a fourth phone call, appellant was advised that the children were dead; he revealed his whereabouts. A police car picked him up at that location and took him to Police Station No. 5. He was locked up for about twenty minutes and then taken to Police Station No. 1, where he was interrogated through most of the day, finally being placed formally under arrest at 5:30 P.M.
Prior to the formal arrest, he surrendered hair and saliva samples and fingernail clippings, and agreed to the making of wax impressions of his fingernails. The police also took photographs of several fresh scratches on his back. These bits of "physical evidence" were used as part of the circumstantial evidence by which the prosecution attempted to identify the appellant as the perpetrator of the murders. The appellant moved to suppress their use on the ground that they were the product of an illegal arrest and obtained without a search warrant and without his valid consent.
Whether such evidence, obtained following an illegal arrest, resulted from such arrest or was sufficiently removed from the arrest depends on the circumstances of the case. Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980) (Opinion in support of affirmance); Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978).
The prosecution called ten witnesses on the motion to suppress, including Mrs. Weston who went to Station No. 1
[ 310 Pa. Super. Page 189]
and talked with appellant in the room in which he was confined. Appellant testified that he had been beaten by several of the investigating officers, and consented to the taking of the samples so that the beatings and the interrogation would stop.
Judge Ridge heard all the witnesses; and he concluded that, despite the illegal arrest, the samples were taken with the voluntary and valid consent of the appellant. His opinion cites Commonwealth v. Tribblett, 242 Pa. Superior Ct. 164, 363 A.2d 1212 (1976) and Commonwealth v. Burgos, 223 Pa. Superior Ct. 325, 299 A.2d 34 (1972). See also Commonwealth v. Pytak, 278 Pa. Superior Ct. 476, 487, 420 A.2d 640 (1980) and Commonwealth v. Woods, 240 Pa. Superior Ct. 72, 76, 368 A.2d 304 (1976). As pointed out in Tribblett, 242 Pa. Superior Ct. at 167, 363 A.2d 1212, deference should be given to the decision of the hearing court, since that court had a firsthand opportunity to observe the appearance and demeanor of the witnesses, and therefore, to evaluate the credibility of the witnesses.
We find that the trial judge did not err. The current case is more in line with Bogan, supra, than with Nelson, supra. In Bogan, the court assuming the arrest was illegal, found a confession resulted from an "intervening act of a free will." Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963). Bogan had been in custody on other charges when he gave a confession to the crime from which he appealed his conviction. Whereas in Nelson, the defendant was unknown to the police until he was illegally arrested. The court found that but for the improper arrest, a statement and physical evidence would not have been forthcoming. Here appellant was a logical candidate for questioning; he was the last known person present with the victims and he explained his absence with an unusual tale. Under these circumstances we cannot overrule the lower court's finding that the arrest did not contaminate appellant's voluntary consent to the taking of the various samples.
[ 310 Pa. Super. Page 190]
We also must agree with the Commonwealth that the physical evidence and appellant's consent to the taking of the samples were not vitiated by the fact that he was not arraigned within six hours after his initial arrest. The appellant argues to the contrary, contending that under Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974), and distinguishing Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), that any evidence obtained during a delay between arrest and arraignment, ...