Com. v. Anderson

• Decision Date: 02 February 1987
• Citation: 520 A.2d 1184,360 Pa.Super. 466
• Parties: COMMONWEALTH of Pennsylvania v. Darryl ANDERSON, Appellant.
• Court: Pennsylvania Superior Court

Page 1184

520 A.2d 1184

360 Pa.Super. 466

COMMONWEALTH of Pennsylvania v. Darryl ANDERSON, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 1, 1986.

Filed Feb. 2, 1987.

Elaine DeMasse, Asst. Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before TAMILIA, HOFFMAN, and HESTER, JJ.

HOFFMAN, Judge.

This is an appeal from the judgment of sentence for burglary. Appellant contends that the trial court erred in denying his motion to suppress out-of-court and in-court identifications and physical evidence because (1) his arrest was unsupported by probable cause; (2) the out-of-court identification procedure was unduly suggestive. We agree that appellant's arrest was unsupported by probable cause and that his motion to suppress should have been granted in regard to the out-of-court identification and the physical evidence. We disagree that the in-court identification also should have been suppressed. Because illegally obtained evidence was used against appellant, the judgment of sentence is reversed and a new trial is awarded.

At 10:00 a.m. on the morning of April 25, 1983, the complainant heard noises coming from a second floor room in his house in West Philadelphia. He went to the room, and observed a black male attempting to pry open the window. The complainant stepped out of the room momentarily, returning with a shotgun which he trained on the perpetrator. Seeing the weapon, the perpetrator--who had not succeeded in entering the room--fled. The entire episode lasted ten to fifteen seconds. After the complainant contacted the police, the police radio broadcast the following description black male, dark complexion, blue sweatshirt, about eighteen to twenty years old with close cropped hair. The police subsequently brought, over a period of two hours, five suspects to the complainant's home for identification. He failed to identify any. During the course of this procedure, the complainant told police that the suspects did not match the description he had originally given when he reported the crime. He then supplemented the police description with the following facts: the suspect was taller than 5'8"' to 5'9"' and that the sweatshirt zipped up the front and had a red stripe running down the arms. With the supplement, and over two hours after the crime occurred, police observed appellant standing on a street corner approximately two blocks from the scene of the crime. Appellant was over 6' tall and wore a sweatshirt matching the description given by the complainant. Police approached appellant and transported him to the scene of the crime where the complainant identified him as the perpetrator.

Appellant filed a pre-trial motion to suppress the out-of-court identification and the sweatshirt as fruits of an illegal arrest. The trial court denied the motion, ruling that there was probable cause to arrest appellant when he was picked up on the street corner. Appellant was then tried without a jury. At that trial he was again identified by the complainant. Appellant was convicted of burglary and sentenced to four-to-twenty-three months incarceration. This appeal followed.

Appellant contends that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications and the sweatshirt. He argues that, as his arrest was not supported by probable cause, the above evidence should have been suppressed as fruits of the illegality. We agree that appellant's arrest was not supported by probable cause and therefore hold that the trial court erred in denying his motion to suppress the out-of-court identification and the sweatshirt. We disagree, however, that the in-court identification should have been suppressed.

To be constitutionally valid, a warrantless arrest must be supported by probable cause. Commonwealth v. Voss, 333 Pa.Superior Ct. 331, 339, 482 A.2d 593, 598 (1984). Probable cause for arrest exists when the facts at the time of arrest would warrant a prudent person in believing that a criminal offense had been committed, and that the suspect was the perpetrator of the offense. Commonwealth v. Woodson, 342 Pa.Superior Ct. 392, 395, 493 A.2d 78, 79 (1985). While information sufficient to establish probable cause cannot be defined to a mathematical certainty, this Court has recognized certain factors as helpful to that determination. In Commonwealth v. Woodson, supra, we held that the defendant's proximity to the scene of the crime, the correspondence of his appearance to the victim's detailed description of the intruder, his attempt to evade the police, and his unsubstantiated explanation for his presence in the alley behind the victim's house, taken together provided the police officer with probable cause to arrest. Id. at 396, 493 A.2d at 80. In Commonwealth v. Williams, 317 Pa.Superior Ct. 456, 465, 464 A.2d 411, 415 (1983), we held that the defendant's matching of the description given by the victim, his proximity to the scene of the crime both in time and place and his attempt to flee all provided the police with probable cause to arrest. See also Commonwealth v. Derrick, 322 Pa.Superior Ct. 517, 532, 469 A.2d 1111, 1119 (1983) (flight in and of itself is not sufficient to establish probable cause, but flight coupled with some other fact may be sufficient); Commonwealth v. Bridgeman, 310 Pa.Superior Ct. 441, 447, 456 A.2d 1017, 1020 (1983) (officer's observance of goods in defendant's car matching description of stolen goods, defendant's failure to produce owner's card for the car or a reasonable explanation for its absence constituted probable cause for arrest); Commonwealth v. Ryan, 253 Pa.Superior Ct. 92, 100, 384 A.2d 1243, 1246 (1978) (the defendant's proximity to the scene of the crime both in time and place, and his fast paced walking away were insufficient to provide probable cause for arrest).

Here, appellant matched the general description provided by the complainant. He did stand over 5'9"' tall and wore a blue sweatshirt with a zipper up the front and red stripes down the sleeves. N.T. August 3, 1983 at 32. He was observed standing on a street corner two blocks away from the scene of the crime over two hours after it had occurred. Id. at 33. There is, however, no evidence that appellant was acting suspiciously or that he tried to flee or evade the police. Unlike those cases cited above where we have found facts sufficient to establish probable cause, the only basis for such a determination in this case was appellant's similarity to the general description provided by the victim. We hold that this similarity, taken by itself, was not enough to provide the police with sufficient facts establishing probable cause to arrest.

The Commonwealth urges us to accept the proposition that when appellant was initially approached by the police officers and then transported to the scene of the crime for identification by the victim, he was not under arrest but rather detained for investigatory purposes pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. ¹ It therefore concedes that no probable cause existed at the time appellant was initially detained. Rather, it maintains that the less stringent standard recognized under Terry, i.e. that the officers had a reasonable suspicion to believe that appellant had committed a crime, be applied to the conduct of the police at the time of the original detention and transportation. We reject this argument.

In reaching this determination, we are guided by our Supreme Court's decision in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). In Lovette, police officers detained the appellant for investigatory purposes and then transported him to the scene of the crime where he was identified by the victim. In ruling that this procedure went beyond the investigatory nature of a Terry stop, the Supreme Court noted:

[I]t is clear that the placing of appellant and his companions in the police vehicle for the purpose of transporting them to the scene of the offense, without their consent, constituted an arrest as that term has been defined under our cases. It is equally true that police action was a seizure of the person within the meaning of the Fourth Amendment of the federal constitution.

Id. at 672, 450 A.2d at 979 (citations omitted). Thus, the transportation of appellant, without his consent, moved the detention beyond the boundaries of an investigatory stop pursuant to Terry and into an arrest requiring conformance to the probable cause standard. ²

As we have determined that appellant was under arrest at the time that he was initially detained and transported to the scene of the crime and that probable cause did not exist at the time of that arrest, we must next determine whether the subsequent out-of-court and in-court identifications, along with appellant's sweatshirt, should have been suppressed as derived from the illegal arrest. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the United States Supreme Court ruled that evidence arrived at by the exploitation of an illegal arrest is tainted by the illegality of the arrest and is therefore inadmissible against the defendant. This "fruit of the poisonous tree" doctrine has been recognized by our Supreme Court as compelling the suppression of a victim's out-of-court identification and physical evidence confiscated from the defendant since both were arrived at pursuant to an illegal arrest. Commonwealth v. Lovette, supra, 498 Pa. at 677, 450 A.2d at 981; Commonwealth v. Nelson, 488 Pa. 148, 152, 411 A.2d 740, 741 (1980). See also Commonwealth v. Hook, 313...