Com. v. Bogan

• Decision Date: 05 October 1978
• Citation: 482 Pa. 151,393 A.2d 424
• Parties: COMMONWEALTH of Pennsylvania v. Rhett BOGAN, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 424

393 A.2d 424

482 Pa. 151

COMMONWEALTH of Pennsylvania v. Rhett BOGAN, Appellant (two cases).

Supreme Court of Pennsylvania.

Argued Nov. 14, 1977.

Decided Oct. 5, 1978.

[482 Pa. 154] Charles Lowenthal, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Atty., Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION

EAGEN, Chief Justice.

These appeals are from the judgments of sentence imposed upon appellant, Rhett Bogan, following his conviction by a jury of robbery and murder of the second degree.

The charges against Bogan arose out of the fatal shooting of James Greenberg during the commission of a robbery inside his West Philadelphia grocery store-delicatessen on September 6, 1973.

Bogan advances four assignments of error as grounds for a new trial. The four asserted errors relate to the admission into evidence of his confession and the in-court identification testimony of two eyewitnesses to the murder.

For the reasons stated herein, we decide that the admission into evidence of the in-court identification of one eyewitness constituted error requiring reversal and a new trial. Since a new trial is mandated, in the interest of advancing the efficient administration of justice, we shall also consider the other three assignments of error which will undoubtedly be pertinent to the new trial. Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272 (1977).

I

First, Bogan contends that a statement given by him to police and introduced into evidence at trial was the product of an illegal arrest and should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975). ¹

Bogan was initially arrested for purse snatching at 4:15 p. m. on September 21, 1973. He confessed to that charge on the same day at 5:15 p. m. at the Central Detective Division of the Philadelphia Police Department. The defense concedes that there was probable cause for the purse-snatching arrest and that Bogan's confession to that charge was made after an intelligent waiver of his constitutional rights.

Bogan was detained at Central Detective Division overnight and occupied a room with one Emmett Vinson, who was also in custody. The next morning Detective Pascali observed Vinson and Bogan, who were the sole occupants of the room, engaged in conversation. Shortly thereafter, at approximately 10:00 a. m. on September 22, 1973, Vinson informed Detective Pascali that Bogan had told him he shot a storekeeper in a West Philadelphia grocery store holdup about two weeks earlier when the man grabbed his jacket to prevent his escape. Detective Pascali contacted the homicide division and was instructed by Sergeant Green to transport Bogan to homicide headquarters. Bogan arrived at homicide headquarters at 12:15 p. m. on September 22, 1973. Bogan contends that the transfer to homicide constituted a second arrest this one for murder and robbery which was not supported by probable cause.

Assuming without deciding that this did constitute a second arrest for which probable cause was required, ² and that probable cause to arrest for the murder and robbery was lacking, thereby rendering this "arrest" illegal, ³ we conclude that Bogan's statement nonetheless need not have been suppressed on this ground. In Wong Sun, supra, 371 U.S. at 487-88, 83 S.Ct. at 417, the Supreme Court stated:

"We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " (Citation omitted.)

The Court in Wong Sun noted that challenged evidence may be purged of the primary taint only if (1) it results from " 'an intervening independent act of a free will,' " Wong Sun, supra 371 U.S. at 486, 83 S.Ct. at 416, or (2) if the connection between the arrest and the evidence has " 'become so attenuated as to dissipate the taint.' " Id., 371 U.S. at 491, 83 S.Ct. at 419 (citation omitted).

Thus, under Wong Sun, all confessions made by an illegally arrested person are not per se inadmissible as trial evidence. United States v. Ceccolini, 435 U.S. 1054, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (1977); Commonwealth v. Wright, 460 Pa. 247, 332 A.2d 809 (1975); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967), Cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159. This, however, can be determined only on the facts of each case.

The United States Supreme Court in Brown v. Illinois,supra, noted several factors to be considered in scrutinizing an individual case: (1) whether Miranda warnings were given; (2) the "temporal proximity of the arrest and the confession"; (3) "the presence of intervening circumstances"; and, (4) "the purpose and flagrancy of the official misconduct". The voluntariness of the statement is, of course, a threshold requirement, Brown v. Illinois, supra 422 U.S. at 604, 95 S.Ct. at 2264, and the confession must also be "free of any element of coerciveness due to the unlawful arrest". Commonwealth v. Bishop, supra at 666. The burden of showing admissibility rests on the prosecution. Brown v. Illinois, supra; Commonwealth v. Barnett, supra; Commonwealth v. Wright, supra; Commonwealth v. Bishop, supra.

Although the lower court made a finding of probable cause and, thus, did not evaluate the circumstances of this case in light of the inquiry mandated by Wong Sun, the record of the suppression hearing contains sufficient detail from which we may make the evaluation and determination. We conclude that the Commonwealth sustained the burden of showing that the evidence in question was admissible under Wong Sun.

Bogan's first admission of involvement in the Greenberg killing was separated from his "illegal arrest" by exactly four hours. Miranda warnings were initially given to Bogan ten minutes after his arrival at homicide and they were repeated immediately after the admission but before Bogan began making an oral statement which was simultaneously reduced to writing.

In addition, "intervening circumstances" were present between Bogan's arrest and his confession. Bogan denied any knowledge of the Greenberg killing until he was advised that he matched the description of Greenberg's assailant. This development, rather than any exploitation of an "illegal arrest", prompted Bogan's confession. ⁴ See Commonwealth v. Wright, 460 Pa. 247, 332 A.2d 809 (1975); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972) (Plurality Opinion). Cf. Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976).

Moreover, Bogan's "illegal arrest" was not "purposeful" or "flagrant". At the time of the "arrest" he was already in custody on another charge. The police department had collective knowledge of the Greenberg killing, including a description of the assailant. In light of Vinson's tip implicating Bogan in that killing, we cannot assume that Bogan would have escaped apprehension on that charge indefinitely. Accordingly, the only effect of the "illegal arrest" was to hasten Bogan's apprehension on the robbery-murder charge. See Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972).

Finally, in extensive findings of fact, the suppression court determined that Bogan's confession was voluntarily made and free of any element of coercion. The record supports that determination. See Commonwealth v. Sparrow, 471 Pa. 490, 498-499, n. 5, 370 A.2d 712, 715-16, n. 5 (1977).

II

Next, Bogan contends that his statement was the product of an unnecessary delay between his "arrest" and arraignment on the instant charges and, therefore, it should have been suppressed, pursuant to Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). ⁵ We conclude that Bogan's confession was not inadmissible on this ground.

The chronology of the "arrest" and statement is as follows. Bogan's transfer from Central Detective Division to homicide headquarters was completed at 12:15 p. m. on September 22, 1973. At 12:25 p. m. he was given Miranda warnings. Thereafter, in the first interview, personal background information was elicited. At 12:50 p. m. Bogan consented to take a polygraph test which was administered between 1:15 and 2:30 p. m.

A second interview began at 2:50 p. m. during which Bogan initially denied any knowledge of the Greenberg robbery-murder but later admitted his involvement. This admission was made at 4:15 p. m. exactly four hours after Bogan's arrival at homicide headquarters. Following Miranda rewarnings, Bogan began making an oral statement which was reduced to writing. Taking of the statement was interrupted in order to arraign Bogan on an unrelated charge. It resumed at 5:25 p. m. and was completed at 6:10 p. m., less than six hours after Bogan's arrival at homicide. Bogan was arraigned on the instant charges at 2:15 a. m. on September 23, 1973.

The relevant time period for determining a claim of unnecessary delay is the time between arrest and the initial incriminating statement. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974). Thus, the relevant time frame in this case is, at most, four hours (12:15 and 4:15, respectively). of that time, only two hours and forty minutes were used for questioning, including a one hour and fifteen minute voluntary polygraph examination. Bogan's confession...