Com. v. Duncan

• Decision Date: 20 May 1987
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Joseph A. DUNCAN, Appellee.
• Court: Pennsylvania Supreme Court

Page 1177

525 A.2d 1177

514 Pa. 395

COMMONWEALTH of Pennsylvania, Appellant, v. Joseph A. DUNCAN, Appellee.

Supreme Court of Pennsylvania.

Argued Oct. 24, 1986.

Decided May 20, 1987.

John A. Reilly, Dist. Atty., Sandra L. Elias, Deputy Dist. Atty., for appellant.

Emilio DiMatteo, Jr., Chester, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

PAPADAKOS, Justice.

This is an interlocutory appeal ¹ by the Commonwealth of Pennsylvania (Appellant) challenging Superior Court's Order of July 5, 1985, affirming the pre-trial suppression order of the Court of Common Pleas of Delaware County which granted Appellee's motion to suppress his inculpatory statement on grounds the "six hour rule" enunciated in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), ² had been violated. The suppression court concluded that Appellee was under arrest at the time he "blurted out" the inculpatory statement relating to drugs found in his motel room: "All this stuff is mine, they know nothing about it." The court further concluded that since Appellee was arrested shortly after 3:00 a.m., and was not arraigned until approximately 11:00 a.m., more than six hours had elapsed; therefore, the Davenport rule was violated and Appellee's statement is not admissible at trial. We disagree for the reasons that follow.

On March 8, 1984, at approximately 3:00 a.m., a burglar alarm in a room at the Airway Motor Lodge, Tinicum Township, Delaware County, was activated. Officers Jack J. Parker and Walter G. Fife of the Tinicum Township Police Department arrived on the scene within minutes of the alarm. The motel clerk advised Officer Parker that the television alarm in Room 122 had sounded. An investigation revealed that the television in Room 122 was missing.

Officers Parker and Fife separated and began a search of the motel. Officer Parker observed two men peeking out of a glass doorway. Believing the men were acting in a suspicious manner, he radioed Officer Fife and described his observations. Officer Parker entered the building adjacent to where he had observed the two men and again saw the two individuals peek out of the glass doorway. As Officer Parker approached, the two men exited the building close to where Officer Fife was standing.

Officer Fife stopped the two men and requested some identification, which they provided. The officer then asked if they were guests at the motel. The co-defendant replied in the affirmative. The officer repeated the question to the defendant. Defendant replied that he was a guest in the motel and that they were in the same room. Officer Fife asked to see the room key to confirm their status as guests. The co-defendant stated that his wife was in the room and that she had the key.

The co-defendant went willingly to Room 258 with Officer Fife while Appellee waited with Officer Parker. In response to the co-defendant's knock on the door, his wife opened the curtains. At this time, Officer Fife observed through the window a large plastic bag atop a scale. The door was opened and the officer given permission to enter. Upon entering, the officer observed white powder in the plastic bag. Officer Fife called down to Officer Parker, "Jack, you'd better come up here." At that time, Officer Parker told Appellee to come with him to the motel room. Appellee entered the room in front of the officer and exclaimed, "All this stuff is mine, they know nothing about it." Appellee and the co-defendants were then placed under arrest for suspected illegal drug activity. A search of the room revealed assorted drugs and drug paraphernalia.

At approximately 3:30 a.m., Investigator Robert Lythgoe arrived on the scene and seized the evidence. Appellee and his co-defendants were then transported to police headquarters and advised of their Miranda rights. Processing of the Appellee was completed at approximately 6:00 to 7:00 a.m. Appellee was preliminarily arraigned at 11:00 a.m., that same morning.

After a preliminary hearing on April 4, 1984, Appellee was held for court on the charges of possession, possession with intent to deliver controlled substances, and conspiracy.

On June 4, 1984, Appellee filed a Motion to Suppress the statement made to the police at the motel. After receiving testimony from Officers Parker and Fife and Investigator Lythgoe on June 11, 1984, the suppression court granted Appellee's motion on August 13, 1984. The Commonwealth appealed. Superior Court, in a two-to-one decision, agreed with the findings of the suppression court and affirmed the Order of Suppression on July 5, 1985, 348 Pa.Super. 630, 510 A.2d 290. Judge Wieand dissented on grounds that "there was no causal connection between the delayed preliminary arraignment and the voluntary and unsolicited admission of ownership made by Appellee when controlled substances were found in his room." The Commonwealth filed a petition for allowance of appeal which we granted on May 8, 1986, so that we might have the opportunity to review and reconsider the rule adopted in Commonwealth v. Davenport, supra.

In this appeal the Commonwealth raises the following questions for our review: 1) whether the suppression court erred in its conclusion of law that the Appellee was under arrest at the time of his freely volunteered admission; and 2) whether the suppression court improperly employed a per se rule of exclusion of evidence to a violation of the Davenport "six hour rule."

Appellant first contends that the finding that Appellee was under arrest at the time of his freely volunteered statement is not supported by the record and that "at most" Appellee was detained for a brief investigatory stop. It is Appellant's position that at the moment the Appellee made his unsolicited confession he had not been taken into custody so as to effectuate an arrest. Appellant also correctly notes, that if the Appellee was not under arrest at the time of his statement, the rule of Davenport is not applicable to this case.

Appellee, on the other hand, contends that the police had exercised control over his freedom from the moment of the initial stop and that he was not free to go at any time. This Court has utilized the following test for determining whether an arrest has occurred:

We have defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest.

Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), citing Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). See also, Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981), and Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980). An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974).

The test is an objective one, i.e., viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized.

Commonwealth v. Haggerty, supra, 495 Pa. at 615, 435 A.2d at 175, citing Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). We have also held that a police officer's subjective view that a defendant was not free to leave is of no moment absent an act indicating an intention to take the person into custody. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978).

In reviewing the rulings of a suppression court our initial task is to determine whether the factual findings are supported by the record. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976). "Where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted." Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983).

In the instant case, the Appellee offered no testimony at the suppression hearing. The suppression court's determination that Appellee was under arrest when he accompanied Officer Parker to Room 258 was based on the testimony of the Commonwealth's witnesses. The suppression court found that this testimony established that: (a) Appellee had stated that he was a resident of Room 258; (b) following the discovery of the drugs, the officers had probable cause to arrest Appellee, (c) both officers assumed that Officer Parker was to bring Appellee to Room 258, following Officer Fife's call, (d) Officer Parker believed that Officer Fife had found the stolen television set or other evidence of crime; (e) Officer Parker testified that at that point Appellee was not free to leave, and (f) under Commonwealth v. Lovette, supra, the act of transporting Appellee to Room 258 without his consent constituted an arrest.

In Lovette the issue was whether placing the defendant in a police vehicle after a "pat down" search and transporting him to the scene of a burglary for identification by the victim constituted an arrest. We held:

Under all of the circumstances, it 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.

Id. 498 Pa. at 672, 450 A.2d at 978.

Appellant attempts to distinguish Lovette from the instant case in that the police actions there went well-beyond what occurred here, and that the officers there had other options available to them. Here, Appellant argues, when Officer Fife called for Officer Parker to come upstairs a split second decision had to be made as to whether to permit Appellee to leave or to continue the momentary detention "one flight up." Appellant contends that Appellee's...