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filed: March 29, 1985.


No. 01223 Philadelphia 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 404-82.


William F. Fox, Jr., Norristown, for appellant.

J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.

McEwen, Del Sole and Popovich, JJ.

Author: Popovich

[ 340 Pa. Super. Page 596]

This is an appeal from the judgment of sentence which was imposed upon appellant, Pasquale Mancini, after he was convicted by a jury of burglary*fn1 and criminal conspiracy.*fn2 We affirm.

Appellant raises the following issues: (1) whether the trial court erred in granting the prosecution's petition for an extension of time to commence trial; (2) whether the evidence obtained from the search of appellant's vehicle and the statement elicited from the appellant should have been suppressed; (3) whether the prosecution failed to prove the corpus delecti of the charge of conspiracy which should have precluded it from introducing appellant's confession; (4) whether the evidence of burglary was against the law; and (5) whether the trial court erred in failing to question the appellant and his counsel to determine if irreconcilable differences existed between them. The appellant also contends that trial counsel was ineffective (a) for failing to advise appellant adequately on whether he should testify in his own defense at trial; (b) for failing to introduce a toxicology report and for failing to interview and call certain witnesses at appellant's suppression hearing; (c) for failing to file an answer to the prosecution's petition for an extension of time to commence trial; and (d) for failing to move for a mistrial when a prosecution witness, Officer Corbin, expressed a personal opinion on the guilt of the appellant during direct examination.

For the most part, appellant's contentions were addressed adequately by the trial court. The record also shows that

[ 340 Pa. Super. Page 597]

    an evidentiary hearing was conducted on appellant's ineffectiveness of counsel claims. This appeal followed.

The facts surrounding the suppression issue which appellant raises were summarized by the trial court as follows:

On November 5, 1981, the residence of David Homiller was burglarized on Norristown Road, Springhouse, Montgomery County. During the burglary, various items including sixty (60) cassette tapes in a black case, stereo equipment, and jewelry were stolen.

On November 7, 1981, Officer Corbin of the Telford Borough Police Department was investigating a hit and run accident. Subsequent to his arrival at the scene of the accident, Officer Corbin received information that the striking automobile was located in the Telford Municipal Parking Lot. Officer Corbin proceeded to the parking lot and found a charcoal black 1966 Chevrolet bearing Pennsylvania license registration number DEW-504.

The officer examined the exterior of the automobile, which matched the radioed description, and found fresh front end damage. The officer also could see that the interior of the car was littered with beer cans and a black tray containing several cassette tapes. An investigation revealed that the automobile was driven by the appellant.

Earlier in the day, on November 7, 1981, Raymond Federsel, an off-duty police officer from the Borough of Telford, had observed the black Chevrolet hop a curb and sideswipe a parking sign. Three males alighted from the vehicle and began to flee. The driver of the automobile was carrying a can of beer and headed in the direction of Officer Federsel. Federsel stopped the driver and requested some identification. The driver of the vehicle identified himself as Pasquale Mancini and also stated that he was twenty (20) years of age.

At that time, Officer Federsel, who was off-duty and in plain clothes, presented his identification badge, advised appellant of his constitutional rights, and detained the suspects for the crime of underage drinking.

[ 340 Pa. Super. Page 598]

At the police station, Officer Corbin proceeded to run a routine records check for any outstanding warrants against appellant.

Detective Kenneth Bright of the Lower Gwynedd Police Department responded to this record inquiry and informed Officer Corbin of the burglary two days earlier. Detective Bright stated that Mr. Mancini was a suspect and requested to view the automobile and question the appellant.

At approximately six-thirty on the evening of November 7, 1981, Detective Bright, along with the victim, David Homiller, arrived at the Telford Police Station. Detective Bright then explained to the appellant the intentions of the officers and their desire to search his vehicle. The appellant read a Consent to Search form and then signed his name.

After thirty minutes of explanation, the appellant, Officers Corbin and Federsel, along with Detective Bright and the victims, proceeded to search the vehicle. The cassette tapes and the jewelry were positively identified by the victims as belonging to them.

Appellant was placed under arrest, but later released into the custody of his father. The appellant and his father, accompanied by appellant's uncle, then drove voluntarily to the Lower Gwynedd Police Station. After being advised once again of his Miranda rights, the appellant confessed to his role in the Homiller burglary.

Both the prosecution and the appellant agree that the appellant's arrest by Officer Federsel for underage drinking was illegal. This arrest was illegal because the police officer was off duty during the time that appellant was arrested for the summary offense. See Commonwealth v. Stahl, 296 Pa. Super. 507, 512-514, 442 A.2d 1166, 1169 (1982) (plurality opinion); See also 18 Pa.C.S.A. ยง 6308 ("A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.") (Emphasis added).

[ 340 Pa. Super. Page 599]

Under our rules, "a citation shall be issued to the defendant by a police officer who shall be in uniform or display a badge or other sign of authority, when the offense charged is any other violation of an ordinance or summary offense." Pa.R.C.P. 51 (A)(3)(a). (Emphasis added). Because the record fails to establish that these procedures were followed, appellant's arrest is illegal. This is because "a private citizen [or off duty out of uniform police officer] may not make an arrest for a summary offense." Commonwealth v. Stahl, 296 Pa. Super. at 515, 442 A.2d at 1170 (emphasis added) (where an out of uniform off duty "officer was not acting within the scope of his employment . . . [he] was merely acting, in effect, as a doorman, a private citizen without authority in these circumstances to effectuate any type of arrest for a summary offense.")

However, notwithstanding the fact that the initial arrest was illegal, the prosecution argues that "[t]he only effect of this illegal arrest was to expedite the capture of the defendant." Brief for the Prosecution at 16.

We recognize that

[t]he relevant test for determining whether a confession following an illegal arrest must be suppressed is:

". . . 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" (Citations omitted.)

Wong Sun v. United States, supra, 371 U.S. [471] at 488, 83 S.Ct. [407] at 417 [9 L.Ed.2d 441 (1963)]; accord, Brown v. Illinois, supra, 422 U.S. [590] at 597, 95 S.Ct. [2254] at 2259 [45 L.Ed.2d 416 (1975)]; Commonwealth v. Bruno, 466 Pa. 245, 255, 352 A.2d 40, 45 (1976); Commonwealth v. Whitaker, 461 Pa. 407, 412, 336 A.2d 603, 606 (1975); Betrand Appeal, supra, 451 Pa. [381] at 381, 303 A.2d [486] at 490 [(1973)]. The challenged confession may be purged of the primary taint only if (1) it results from an intervening act of free will which is free of any element of coerciveness due to the unlawful

[ 340 Pa. Super. Page 600]

    arrest, or (2) the connection between the arrest and the confession has become so attenuated as to dissipate the taint. Commonwealth v. Whitaker, supra, 461 Pa. at 414-17, 336 A.2d at 607-08; Betrand Appeal, supra, 451 Pa. at 388-89, 303 A.2d at 490; Commonwealth v. Bishop, 425 Pa. 175, 183, 228 A.2d 661, 666, cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159 (1967); see Wong Sun v. United States, supra, 371 U.S. at 486, 491, 83 S.Ct. at 416, 419. Moreover, once the illegal arrest has been established, the Commonwealth has the burden to establish that the confession "has been come at 'by means sufficiently distinguishable to be purged of the primary taint' . . . ." Betrand Appeal, supra, 451 Pa. at 389, 303 A.2d at 490.

Commonwealth v. Farley, 468 Pa. 487, 496-497, 364 A.2d 299, 303 (1976).

More specifically, our Supreme Court

     has enumerated two factors of major significance in determining the relationship between the illegal arrest and subsequent confession:

"'(a) the proximity of an initial illegal custodial act to the procurement of the confession; and

(b) the intervention of other circumstances subsequent to an illegal arrest which provide a cause so unrelated to that initial illegality that the acquired evidence may not reasonably be said to have been directly derived from, and thereby tainted by, that illegal arrest.'"

Betrand Appeal, supra [451 Pa.] at 389, 303 A.2d at 490 (quoting from Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22, 29 (3d Cir. 1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966)).


When these standards are applied to the instant case, we conclude that the confession was obtained by means "sufficiently distinguishable to be purged of the primary taint."

[ 340 Pa. Super. Page 601]

The record shows that there were intervening events which attenuated the taint.

At the time that appellant was arrested at the station, the police were looking for a vehicle which was used in a hit and run accident. (N.S.T. 16) On November 7, 1981, at 4:40 p.m., the police received an anonymous call which stated that a "mid-sixties", "black Chevrolet in beat up condition, with left front end damage" was the "striking vehicle" in a hit and run accident and was "last seen north on School Lane." (N.S.T. 32) Officer Corbin also received information that the caller had followed the vehicle to the Municipal Parking Lot. Corbin went to the location and found "a 1966 Chevrolet bearing Pennsylvania registration DEW-504 parked at the railroad tracks on the north side of the parking lot," which was unoccupied. (N.S.T. 33) When Officer Corbin approached the vehicle, he "confirmed the fact that it had fresh front end left side damage." (Id.) The officer also "looked inside the vehicle, and noted several containers of beers, open and closed, also noted a large black tray containing a large amount of cassette tapes in the back right floor of the car, and some stereo equipment." (Id.) As Corbin approached the car, he got a radio message to return to the station, which was one hundred (100) yards from the parking lot.

After Corbin arrived at the station, he saw the appellant and two white males with Officer Federsel. Corbin advised the appellant of his rights since he was the officer on duty. Appellant stated that he wanted to speak to the officer about "the hit and run accidents." (N.S.T. 37) As a matter of routine procedure, Officer Corbin called the Ambler police department, which was appellant's hometown. Corbin was told by Detective Ken Bright that a burglary had occurred a day or two before and that a black tray was taken containing a large quantity of cassette tapes. Corbin advised Detective Bright of what he had seen in the car.

At 7:20 p.m., appellant signed a permission to search form and the victims of the burglary came to the station and identified the items in the car. Appellant denied knowledge

[ 340 Pa. Super. Page 602]

    and stated that the tapes "weren't stolen." (N.S.T. 47) Appellant spoke to his father for one half hour and was released at midnight.

Appellant phoned the police station in Ambler after his release and Detective O'Connor told appellant to come to the station. Appellant, appellant's father and his uncle went to the police station. Detective O'Connor had known appellant because he had been appellant's juvenile officer. O'Connor advised appellant of his Miranda rights as he had "many times on prior arrest occasions." (N.S.T. 72) Appellant indicated that he "did not want the presence of an attorney." (N.S.T. 73) Appellant executed a written waiver in the presence of his father and his friend and gave the detective a written confession. After appellant gave his confession, he was released and was not arrested until approximately three months later in Tempe, Arizona.

Thus, appellant's release from the police station and his visit to another police station with his father and uncle during which time appellant confessed to the crime was "an intervening act of free will which [was] free of any element of coerciveness due to the unlawful arrest." Commonwealth v. Farley, 468 Pa. at 496, 364 A.2d at 303.

Additionally, the evidence which was seized from the car was not tainted by the illegal arrest. The record shows that an eyewitness identified appellant's vehicle as the striking vehicle in a hit and run accident. After an independent examination, Officer Corbin discovered appellant's vehicle in the Municipal lot. These events were independent from those which led to appellant's illegal arrest for underage drinking.

When appellant was taken to the police station, he consented to the search of his vehicle. Although appellant had been drinking beer, the prosecution's evidence established that appellant was capable of making an informed decision. Under these circumstances, the prosecution has met its ...

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