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argued: June 5, 1985.


Appeal from the Judgment of sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 463-465 January 1977


Marilyn J. Gelb, Philadelphia, for appellant.

Alan J. Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Brosky and Tamilia, JJ.

Author: Tamilia

[ 345 Pa. Super. Page 418]

This is an appeal from judgment of sentence for first degree murder. Because the crime was committed prior to enactment of 42 Pa.C.S.A. § 9711, the death sentence rendered by the jury was vacated and life imprisonment imposed. See Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1982).

The conviction stems from appellant's strangulation slaying of a 71 year old female resident of the apartment building in which he resided, and his necrophilic mutilation of the body. Shortly after the murder, appellant was questioned for approximately 24 hours by police, and released for lack of probable cause to arrest. One month later he lured another woman to the apartment, now vacant, in which the killing had occurred, raped and strangled her. She survived the attack, ran outside and identified appellant as her assailant to a passing police officer, whereupon appellant was taken into custody. Three days thereafter a "bring-down" order authorizing appellant's temporary removal from the Philadelphia House of Detention was presented by police who transported him to the Police Administration Building for interrogation concerning the murder. Appellant was told that he was being arrested for the murder, Mirandized, and during the course of the questioning which followed the arrest, appellant confessed, giving police the statement which forms the basis for the first issue raised upon appeal.*fn1

Appellant contends, in a tripartite argument, that the admission of his confession at trial was reversible error. The first rung of his syllogistic ladder is that the bring-down order under the auspices of which he was transferred

[ 345 Pa. Super. Page 419]

    to police headquarters for questioning, violated the habeas corpus statute, 12 P.S. § 1887,*fn2 repealed eff. June 27, 1978, rendering his custody unconstitutional, and, as a necessary adjunct, its fruits tainted beyond admissibility. The basis for this argument is that the ex parte order, which both sides stipulated had not been signed by a judge of competent jurisdiction, but only approved by the district attorney's office and stamped by a court clerk, is not a legal writ, as the statute requires, rendering illegal the transfer it authorized. Appellant further argues that his (re)arrest was without probable cause since only information concerning the rape augmented police evidence already available at the first (inconclusive) interrogation. This argument, too, is bottomed, somewhat unsteadily, on the invalidity of the bring-down. Appellant seems to be equating his physical removal from one place to the other with his arrest, and ascribing to the former, as necessary, the evidentiary underpinnings of the latter. The third step in the construct is that the confession was involuntary because appellant was denied assistance of counsel.

The suppression judge propounded the paradox that although the customary bring-down procedure for transferring detainees was, besides being a clear violation of the

[ 345 Pa. Super. Page 420]

    statute, "frought (sic) with the potential for constitutional and statutory violations" (Slip Op. of 6-9-77 at 3), requiring some remedial action in the form of a Rule of Criminal Procedure, no constitutional violation had occurred because the statute violated was a civil one, with concommittant civil penalty. In addition, the court found that because there was probable cause to arrest, custody under the bring-down order was valid, and that because the interrogation was for a crime not yet charged, i.e., the homicide, it was not a critical stage in the prosecution of that crime requiring the presence of counsel. It was further concluded that appellant was in any event aware of his right to counsel and had waived it. As a coda, it is pointed out that the Public Defender Association in Philadelphia, appellant's counsel for the rape charges, does not represent homicide defendants.*fn3

Although the court's assessment of the bring-down procedure is sound, the use made of it in formulating a resolution in this case, provided no direction for future use. The familiarity of long usage does not alter the fundamental illegality of the procedure; whether it is civilly or criminally so is irrelevant, since no penalty of any kind was imposed upon the violator(s).

We begin our analysis with the assumption that bringdown orders*fn4 are proper, if and when executed with the judicial niceties observed, Commonwealth v. Broaddus, 458 Pa. 261, 342 A.2d 746 (1974). "There is nothing sinister or secretive about this procedure and it is a practice commonly used, not only in Philadelphia County, but in other counties of the Commonwealth." Broaddus, supra; Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). However, in both Dickerson and Broaddus an actual Order was involved, representing permission sought from and granted by a court aware of the objective sought. In

[ 345 Pa. Super. Page 421]

    cause supports incarceration. It does not support successive arbitrary seizures shuffling an accused (a citizen presumed innocent) from place to place." Id. 458 Pa. at 275, 342 A.2d 753, 754. (Emphasis and parentheses in original.)

It is unquestionable that such cavalier treatment by adversarial authorities without the knowledge of the court is an invasion of rights which demands redress in appellant's case, albeit not that requested, and for future detainees, prophylaxis. The question of remedy remains, and is dependent upon resolution of appellant's other averments of error in regard to his confession. These present very little challenge.

The addition of information concerning the alleged rape was quite sufficient to supply police with probable cause to arrest appellant for the murder. And, although the suppression judge erred in determining that appellant's interrogation was not a critical stage in the prosecution of the homicide, he was correct in finding that appellant had waived the presence of counsel. The absence of merit in these issues is a determinative factor in the process of fashioning an antidote to the clear statutory violation.

Appellant has alleged no prejudice from the bringdown itself. Such claims as he makes are directed toward the physical fact of the bring-down as a sort of "proximate cause" of the harm occasioned by the interrogation which followed. Because we have found probable cause in the arrest, and no violation of the right to counsel, we cannot therefore ascribe to the ex parte action such injury as to warrant suppression of the statement, or indeed to impose its condition precedent, a new trial marked by the absence of the statement. We see no reason why the civil penalty prescribed by the statute cannot be fashioned in such a way as to serve as a deterrent to future violations by the authorities involved, as appears to be the legislative intent.

Henceforth, given the absence of statute or rules to afford relief, bring-downs must, to safeguard the constitutional

[ 345 Pa. Super. Page 423]

    rights of pre-trial detainees, be by court order. Continued abuse most assuredly will result in more definitive sanctions.

Judgment of sentence affirmed.

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