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.
[ 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to police headquarters for questioning, violated the habeas corpus statute, 12 P.S. § 1887,*fn2 repealed eff.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 ...