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filed: February 9, 1989.


Appeal from the Order Entered June 16, 1987, in the Court of Common Pleas of Bucks County, Criminal Division, at No. 3878/84.


Lawrence M. Cherba, Assistant District Attorney, Doylestown, for Com.

Douglas C. Maloney, Langhorne, for appellee.

Wieand, Kelly and Hester, JJ. Kelly, J., files a dissenting opinion.

Author: Hester

[ 383 Pa. Super. Page 142]

The Commonwealth appeals an order entered on June 16, 1987, wherein appellee, William "Country" Melson, was granted a new trial following a jury's finding that he was guilty of first degree murder. The trial court issued the order for Melson's new trial based upon post-trial motions which alleged that prior counsel was ineffective in failing to move to suppress identification testimony obtained through

[ 383 Pa. Super. Page 143]

    questionable use of a subpoena and an impermissibly suggestive identification. We affirm.

The facts found by the trial court are as follows. Melson was arrested on August 24, 1984, by Bucks County detectives and charged with conspiracy, robbery and murder in connection with the death of Robert Malarchik. The arrest followed Melson's appearance at the Bucks County Courthouse pursuant to a subpoena. The subpoena had been issued to compel Melson to appear and testify at the sentencing hearing of Eugene Banks, who had already been convicted of Malarchik's murder. The police had suspected that Melson was a co-conspirator, but did not have sufficient evidence to arrest him. They subpoenaed him for Banks' sentencing, hoping to gain additional evidence upon which to base such an arrest. The prosecutor did not expect to have Melson testify at Banks' sentencing.

Melson was aware that he was a prime suspect since he had been interviewed four days prior to the sentencing hearing. He had refused to answer questions without first consulting an attorney and had attempted to obtain advice from Banks' counsel before he appeared at the courthouse for the sentencing. He was not successful in reaching Banks' attorney. Melson went to the courthouse, but decided to leave shortly after he arrived. Detectives advised him that he could not leave. No one at the courthouse questioned Melson about his willingness to testify or discussed the substance of any proposed testimony.

After the sentencing proceeding began, two detectives ordered Melson into the courtroom. They escorted Melson into the courtroom with a detective on each side. At least one of the detectives held him by the arm. He was seated prominently in the front of the courtroom. One of the detectives was publicly known to have been involved in the investigation of the Malarchik murder. Shortly after Melson appeared in the courtroom, the deputy assistant district attorney gestured toward Banks, and Banks nodded his head. At that point, Melson was advised that he was being

[ 383 Pa. Super. Page 144]

    placed under arrest, and he was escorted out of the courtroom in the same manner as he had been brought in.

Banks' sentencing was then delayed since he decided to testify on behalf of the Commonwealth against Melson. Banks named Melson as a co-conspirator and participant in Malarchik's murder. Banks' plea agreement provided that his sentences would run concurrently, that he would remain in Bucks County prison rather than a state correctional institution until sentencing, and that a favorable letter would be written to the parole board by the district attorney's office.

The events surrounding the murder are as follows. Banks had been a partner with Malarchik in a swingers sex club known as "The Woodlands" in Bucks County, Pennsylvania. Banks suspected that Malarchik was under-reporting the number of patrons and, thus, retaining more than his share of the profits. Banks asked his then-girlfriend, Frances Markowitz, to count the automobiles in the parking lot on several weekend nights. The count of automobiles confirmed Banks' suspicions. Banks originally intended only to rough-up Malarchik. He contacted Melson and another unnamed co-conspirator to assist him, and agreed to provide them with methamphetamine, as he had in the past, in return for their help.

Melson and Banks met in the club parking lot on the night of July 10, 1982. Fran Markowitz was with Banks and saw Melson briefly. She remembered that he drove a white Lincoln Continental and that he visited the club briefly in order to identify Malarchik.

Later, the conspirators agreed to poison Malarchik by using cyanide in the hope that his death would appear to have been caused by a heart attack. Banks provided his accomplices with cyanide, a syringe, handcuffs and an unregistered gun. Malarchik resisted, the syringe with the cyanide was broken, and Malarchik instead was shot, strangled, and finally drowned by immersion in a tub. Fran Markowitz assisted Banks in disposing of Malarchik's body.

[ 383 Pa. Super. Page 145]

When police discovered Malarchik's body, Banks was arrested, and he was convicted partially on the basis of Fran Markowitz's testimony. Although the police were aware that there were co-conspirators, and that one of them drove a white Lincoln Continental and was called "Country," Markowitz was unable to identify Melson from a photographic array. Furthermore, Banks refused to identify his co-conspirators until he observed Melson in the courtroom at his sentencing hearing. Markowitz also attended the sentencing, but did not identify Melson at that time. She did identify him three days later after his picture appeared on the front pages of the local newspaper following his arrest. She later testified for the Commonwealth at Melson's trial and stated she had not seen Melson's picture in the newspaper.

At issue is trial counsel's failure to seek suppression of Markowitz's in-court identification and testimony. The burden of establishing ineffective assistance of counsel rests on the defendant, as counsel is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). In order to prevail, defendant has the burden of establishing that: 1) counsel was arguably ineffective due to an act or omission; 2) the challenged act or omission could not objectively have furthered defendant's interests; and 3) defendant was prejudiced in that, but for the challenged act or omission, there was a reasonable probability the outcome of the trial would have been more favorable. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Petras, 368 Pa. Super. 372, 376, 534 A.2d 483, 484-85 (1987). Where the challenge is to a failure to move for suppression of evidence, the defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable. Kitrell v. Dakota, 373 Pa. Super. 66, 72-73, 540 A.2d 301, 306, (1988).

Upon careful review of the record, the parties' briefs and the trial court opinion, we find that the trial court properly

[ 383 Pa. Super. Page 146]

    granted Melson a new trial on the grounds that the identification by Markowitz should have been suppressed and that trial counsel had no reasonable basis for failing to pursue the suppression issue.*fn1 The trial court found Melson's claim meritorious in that: 1) the subpoena which compelled Melson's presence at the sentencing was a sham and the identification by Markowitz, which resulted from his appearance, must be suppressed as tainted fruit; 2) Melson was under arrest when he was not allowed to leave the courthouse and had the right to counsel at that point; and 3) the view by Markowitz at the sentencing was unduly suggestive, she did not have an independent recollection from which to identify Melson as a co-conspirator prior to his sentencing appearance, and the view at the sentencing contributed to her identification of Melson as a co-conspirator. We agree with all three positions.

Initially, we will discuss the invalid use of the subpoena which compelled Melson's attendance at Banks' sentencing. It was not intended to produce his testimony at the sentencing, but was designed to induce either Melson or Banks to cooperate with the Commonwealth after they observed each other. The prosecutor admitted as much. Thus, the Commonwealth's primary goal was to use a confrontation to gain evidence in a criminal investigation. Furthermore, at the time, Melson was a prime suspect in the investigation. He had been interviewed four days earlier and had refused to testify at the sentencing without first consulting his attorney. He had not yet consulted the attorney when he was compelled to appear at the courthouse and subsequently was led into the courtroom by detectives. The dominant purpose of the subpoena was to engineer a confrontation between Commonwealth witnesses and suspects in order to gain either additional evidence or the identification of a co-conspirator, in this case, Melson. The subpoena achieved this purpose.

[ 383 Pa. Super. Page 147]

The use of the subpoena for this purpose is impermissible. A writ "is for the purpose of compelling the attendance of a person whom it is desired to use as a witness . . . . A writ which does not cause a witness to appear and give testimony, and place the witness under the order and censure of the court is not a subpoena." 97 C.J.S. Witnesses ยง 20 (1957) (footnotes omitted) (emphasis added); see also Commonwealth v. Wilson, 158 Pa. Super. 198, 202, 44 A.2d 520, 522 (1945).

This invalid use of the subpoena eventually resulted in Markowitz's identification of Melson as a co-conspirator. Further, her identification would not have occurred without this engineered confrontation since she previously had been unable to identify him through a photographic array which contained his picture. Since her identification was the fruit of the impermissible use of the subpoena and since she had no independent basis to identify Melson, her courtroom identification should have been suppressed. Trial counsel had no reasonable basis in failing to seek suppression of the identification.

We also agree that Melson was placed under arrest prior to his entry into the courtroom. Accordingly, he had the right to counsel at that time and before he was brought into the courtroom for the purpose of identification by Banks or Markowitz. When Melson indicated that he intended to leave, two detectives prevented him from doing so and then escorted him to the sentencing courtroom. We view this action as placing Melson in custody prior to the identification, and we disagree with the Commonwealth's characterization of this as an investigatory non-custodial stop similar to a traffic stop. See Commonwealth v. Leninsky, 360 Pa. Super. 49, 519 A.2d 984 (1986).

[ 383 Pa. Super. Page 148]

In view of all the circumstances, we conclude that Melson was in custody from the time he appeared at the courthouse. He was not free to leave. An arrest has been defined as any act by which an arresting person indicates an intent to take an individual into custody and subject him to control of the arresting person. Commonwealth v. Page 148} Nelson, 488 Pa. 148, 411 A.2d 740 (1980) (defendant deemed to be under arrest when summoned to officer's patrol car). "[A]n arrest may be effectuated without the actual use of force and without a formal statement to the detainee that he is being arrested." Commonwealth v. Farley, 468 Pa. 487, 495, 364 A.2d 299, 302 (1976). Nor may an arrest be disguised by using a different term for detention. Commonwealth v. Farley, Id.

At judicial criminal proceedings following arrest, a defendant has the right to the presence and advice of counsel. See Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Commonwealth v. Taylor, 472 Pa. 1, 370 A.2d 1197 (1977); Commonwealth v. Minnis, 312 Pa. Super. 53, 458 A.2d 231, (1983). In Pennsylvania, the right to counsel attaches at the time of arrest, and exists for identification confrontations occurring after arrest, except for prompt, on-the-scene confrontations. Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974). After Melson was no longer free to leave the sentencing, he was under arrest. He was entitled to have counsel present and was not provided with one.

Finally, we agree with the trial court's conclusion that the identification by Markowitz was the result of impermissibly suggestive proceedings. She saw Melson being led into the courtroom by detectives involved with the murder investigation, and placed in a prominent front seat. In addition, Melson was the only black male in the courtroom, and she knew that the co-conspirators were black. Even though Fran Markowitz identified Melson on her own and merely was encouraged, not required, to attend or told to look for a co-conspirator in the courtroom, the manner in which he was brought into the courtroom was impermissibly suggestive.

An in-court identification following a suggestive pretrial identification is only admissible if the Commonwealth can show by clear and convincing evidence that the identification has an independent origin to purge the primary

[ 383 Pa. Super. Page 149]

    taint of the impermissible procedure. Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978). Instantly, the Commonwealth's witness, Fran Markowitz, did not have an independent recollection of Melson's identity prior to his suggestive appearance. In fact, she was unable to identify Melson in a prior photographic array and her description was vague and imprecise. She was not a victim, but had only seen Melson briefly, at night, two years earlier. We conclude that the identification procedure, if not deliberately arranged, 3 was nonetheless highly suggestive. See Commonwealth v. Cullen, 340 Pa. Super. 233, 489 A.2d 929 (1985).

We can see no reasonable basis for trial counsel's failure to seek suppression of this identification testimony, since the identification was uncounselled and impermissibly suggestive. We also note that "[t]he failure to file a suppression motion may be evidence of ineffective assistance of counsel." Commonwealth v. Ransome, 485 Pa. 490, 494, 402 A.2d 1379, 1382 (1979), citing Commonwealth v. Roundtree, 469 Pa. 241, 249, 364 A.2d 1359, 1363-64 (1976). We also agree with the trial court's conclusion that the result of Melson's trial may have been different if Markowitz's testimony had been suppressed. The identification by Fran Markowitz was crucial since she had been given immunity from prosecution and her identification of Melson was the only one that was not tainted. Banks, a convicted murderer, was highly impeachable and had everything (lenient sentencing) to gain and nothing to lose by identifying Melson. Willis Yarborough, another co-conspirator who also testified at the trial, 4 was impeachable on other grounds. Accordingly, there is a reasonable probability that the outcome of Melson's trial would have been more favorable had Markowitz not testified.

Accordingly, we affirm the order granting appellee a new trial.


Accordingly, we affirm the order granting appellee a new trial.

[ 383 Pa. Super. Page 150]

KELLY, Judge, dissenting:

I respectfully dissent. I agree with neither the majority's statements of the relevant facts, nor its statement and application of the controlling law. I find that William Melson was properly convicted of murder, and that the majority err in reversing his conviction.


Eugene Banks and Robert Malarchik entered into an illicit partnership to run a "swingers sex club" known as "The Woodlands" in Bucks County, Pennsylvania. Sometime after operations commenced, Banks became concerned that he was not receiving his fair share of the profits. Banks suspected that Malarchik was under-reporting the number of patrons on weekends and so he asked his then girlfriend, Fran Shenkin Markowitz, to go to the club and count the cars in the parking lot on several weekend nights. Mrs. Markowitz' reports confirmed Banks' suspicions and fueled his anger.

After first considering "send[ing] someone 5 over to rough him up, beat him up, break an arm or leg, whatever,"*fn1 Banks contracted with appellee and an unnamed co-conspirator to have Malarchik killed. Mrs. Markowitz accompanied Banks to a late night meeting with appellee and another unidentified person in the club parking lot on July 10, 1982. Banks and Mrs. Markowitz parked in the front of the club's entrance, appellee and the other man arrived a short while later and parked next to them. Mrs. Markowitz viewed appellee before and after he entered the club at close range (10 feet), noted his general physical characteristics, and noted the type of car he drove. She also noted the general characteristics of the other man who had remained in the car. On July 14, 1982, Banks, appellee, and the unnamed co-conspirator met and proceeded together to the club. The plan was to poison Malarchik with cyanide in the hope that his death would appear to have been caused by a heart attack. Banks provided his accomplices with cyanide, a

[ 383 Pa. Super. Page 151]

    syringe, handcuffs and an unregistered gun. The plan, however, went awry and was abandoned in favor of more traditional methods of murder when Malarchik struggled with his assassins. Malarchik 6 was shot, strangled, and finally drowned by immersion in a tub at the club.

Appellee and the unnamed co-conspirator left. Because little money was found at the club, Banks agreed to compensate them for their services by making methamphetamine for them. Banks stayed at the scene and attempted to remove all evidence of the murder at the club and then moved Malarchik's body to a factory building he owned. That night Banks showed the body to Mrs. Markowitz and had her help him place the body in a 50 gallon steel drum and clean up the pool of blood which the body had left on the floor. Banks dipped the gun used to shoot Malarichik into corrosive acid and then placed it in the steel drum with Malarchik's body. Banks then transported the sealed drum to a friend's residence from whence it was to be taken later for burial.

Banks was arrested several days later, after Malarchik's decomposing body was discovered in the steel drum. Mrs. Markowitz was granted immunity 7 and testified against Banks. Throughout the trial process, Banks contended that he had only gone to the club to confront Malarchik and that "Country" and another man who went with him had killed Malarchik without direction from him. However, Banks resolutely refused to identify his co-conspirators. Following a jury trial, Banks was convicted of first degree murder and various related offenses.

Through independent sources the police began to suspect that appellee was Banks' co-conspirator who had previously been described only as "Country." Appellee's nickname was Country and he had access to the type of car known to have been driven by the co-conspirator (a white Lincoln Continental). When questioned by police, appellee acknowledged that he knew Banks but declined to speak further until he consulted an attorney. Appellee did not expressly deny knowledge of or participation in the murder. The

[ 383 Pa. Super. Page 152]

    police then served appellee with two subpoenas, one for Banks' sentencing hearing and the other for grand jury proceedings related to the murder scheduled sometime after the sentencing hearing.

When Banks saw appellee at his sentencing hearing, he decided to cooperate with the 8 prosecutors against appellee in the hope that his cooperation might result in leniency at his sentencing. Mrs. Markowitz, who had also been subpoenaed to testify at Banks' sentencing, later reported to the police that appellee, whom she had seen in the courtroom at Banks' sentencing, was the same man whom she saw Banks meet on July 10, 1982, and whom Banks had identified to her as his co-conspirator "Country." Mrs. Markowitz identified appellee as such at appellee's trial.

A jury found appellee guilty of first degree murder and related offenses. After his conviction, new counsel was appointed to represent appellee. In supplemental post-verdict motions, new counsel raised several allegations of ineffective assistance of trial counsel, prosecutorial misconduct and trial error. An evidentiary hearing on those claims was held on May 15, 1986. On January 16, 1987, the trial court filed an opinion which concluded that trial counsel had been ineffective for ...

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