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decided: April 23, 1985.


Discretionary Appeal from the July 15, 1983 Order of the Superior Court, at No. 44, Philadelphia 1982, Affirming the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, As of Nos. 572-575, of June Sessions, 1976. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, Flaherty, McDermott, Hutchinson and Papadakos, JJ., join in this majority opinion. Larsen, J., filed a concurring opinion in which McDermott and Hutchinson, JJ., joined. Nix, C.j., concurred in the result.

Author: Zappala

[ 507 Pa. Page 543]


We review an Opinion and Order of the Superior Court affirming the denial of post-conviction relief to the Appellant William N. Corley. The essence of the Appellant's argument is that his trial counsel was ineffective for having withdrawn an allegedly meritorious suppression motion. The lower court found, and Superior Court agreed, that because the suppression motion would properly have been denied, counsel could not be found ineffective for having withdrawn it. The issues raised by the motion would have been, (1) whether the exclusionary rule applies in the context of a "citizen's arrest", and, if so, (2) whether the arrest of the Appellant in this case was illegal, there not having been a felony committed in the presence of the arresting person. The Superior Court held "that the fruits of an illegal citizen's arrest are subject to the full action of the Fourth Amendment and to the exclusionary rule," Commonwealth v. Corley, 316 Pa. Super. 327, 335, 462 A.2d 1374, 1378 (1983), but determined that on the facts of this case the arrest was not illegal. This finding was based on the court's holding that "a citizen's arrest can be made for a breach of the peace that is personally observed by the arrestor." Id., 316 Pa. Super. at 338, 462 A.2d at 1379. The Superior Court acknowledged that this holding was contrary to dicta found in several previous cases, but there being no binding precedential authority on point, the court, in the common law tradition, reasoned that the rule permitting individuals to arrest for felonies committed in their presence should be extended to permit arrests for breaches of the peace as well. We granted allowance of appeal to review these holdings. While rejecting that court's conclusions

[ 507 Pa. Page 544]

    as to the applicability of the exclusionary rule in the present context, we agree that the Appellant is not entitled to relief under the Post-Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq., and therefore affirm.

The criminal incident giving rise to this case was a shooting and robbery which occurred in the men's room of the Strawbridge and Clothier department store in Philadelphia on May 22, 1976. A store security guard saw the Appellant running toward the main escalator and also heard over his radio that there had been a shooting. The guard followed the Appellant out of the store, across the street, and into Gimbel's department store. As he followed, he observed the Appellant put a gun in his jacket pocket. The Strawbridge guard detained the Appellant and removed his jacket. He then handcuffed the Appellant and took him to a detention room in the Strawbridge store. While there he removed the gun from the jacket pocket. A wallet with which the Appellant had attempted to establish his identity, later identified as belonging to the victim, was also removed but was returned to the Appellant as he was turned over to the Philadelphia police. This wallet was later found, partially obscured between the backrest and rear seat of a patrol car in which the Appellant had been seated, by an officer who noticed that the Appellant no longer had the wallet when he was taken into the station.

Following a plea of guilty and withdrawal of the plea, the Appellant was tried non-jury and found guilty of robbery, various weapons offenses, and assault. On direct appeal the Superior Court affirmed the judgment of sentence. Commonwealth v. Corley, 266 Pa. Super. 617, 405 A.2d 541 (1979). The Appellant filed the Post-Conviction Hearing Act petition which gives rise to the present case in November of 1979, seeking to be discharged or granted a new trial on the basis that he was denied his constitutional right to assistance of competent counsel, 42 Pa.C.S. § 9543(3)(vi). After hearings the lower court denied the petition and, as previously noted, the denial of relief was affirmed.

[ 507 Pa. Page 545]

The Appellant asserts the correctness of the Superior Court's determination that the exclusionary rule is applicable in the context of a "citizen's arrest", but argues error in the court's holding empowering individuals to arrest for misdemeanors committed in their presence. This rule, according to Appellant, departs from the longstanding rule that a citizen may properly make an arrest only when he has definite knowledge that a felony has been committed, and reasonable grounds to conclude that the defendant committed it, see, Commonwealth v. Chermansky, 430 Pa. 170, 242 A.2d 237 (1968); Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A.2d 587 (1954). Moreover, Appellant argues, contrary to the Superior Court's reasoning that citizens should be encouraged to stop breaches of the peace and should not be required to distinguish between those which are felonies and those which are not, the new rule sanctions vigilantism and requires a more difficult distinction to be made by the citizen arrestor, that between breaches of the peace which are misdemeanors and those which are summary offenses. The latter, Superior Court has indicated, may not be the basis of a citizen's arrest. Commonwealth v. Stahl, 296 Pa. Super. 507, 442 A.2d 1166 (1982).

The Appellee, in response, argues that the Superior Court erred in holding that evidence obtained as a result of an illegal citizen's arrest should be suppressed. As a consequence of this error, Appellee continues, the Superior Court unnecessarily addressed the question of a private individual's authority to arrest for a non-felony committed in his presence. It is suggested that this Court likewise need not address the merits of this issue.

The Superior Court prefaced its analysis by acknowledging the long-established principle that the fruits of an illegal search by an individual not acting for the state are not subject to exclusion by reasons of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). At the core of

[ 507 Pa. Page 546]

    the reasoning underlying this refusal to extend application of the exclusionary rule to private searches is the concept of "state action", the understanding that the Fourth Amendment operates only in the context of the relationship between the citizen and the state. Although this Court has never ruled that the same result necessarily obtains under Article I, Section 8 of the Pennsylvania Constitution, the Superior Court has so held, Commonwealth v. Dingfelt, 227 Pa. Super. 380, 323 A.2d 145 (1974), and we have implicitly acknowledged the force of the argument, distinguishing cases in which we have applied the exclusionary rule by emphasizing the extensive police involvement in the search. See e.g., Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1978).

In the present case the Superior Court differentiated between a private individual conducting a search and one making a citizen's arrest. The former, the court observed, can have purely personal motives and goals for undertaking a search. The latter, according to the court, "is, definitionally, acting under the authority of the state." 316 Pa. Super. at 333, 462 A.2d at 1377. This because "through the common law tradition as interpreted and modified by the courts of this Commonwealth," Id. n. 9, the state recognizes and sanctions the act, distinguishing it from an unprivileged battery or kidnapping. In addition the police, by taking the arrestee into custody, and the prosecutor, by seeking to use evidence gained as a result of the arrest, would have "ratified" the citizen's arrest. "Since the very occurrence of ...

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