Com. v. Palmer
| Decision Date | 06 September 1985 |
| Citation | 345 Pa.Super. 416,498 A.2d 891 |
| Parties | COMMONWEALTH of Pennsylvania v. Earl PALMER, Appellant. 1781 Phila. 1983 |
| Court | Pennsylvania Superior Court |
Marilyn J. Gelb, Philadelphia, for appellant.
Alan J. Sacks, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
Before WICKERSHAM, BROSKY and TAMILIA, JJ.
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. 1
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which he was transferred to police headquarters for questioning, violated the habeas corpus statute, 12 P.S. § 1887, 2 repealed eff.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 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 and had waived it. As a coda, it is pointed out that the Public Defender Association in Philadelphia, appellant's counsel for the rape charges, does not represent homicide defendants. 3
Although the court's assessment of the bring-down procedure is sound, the use made of it in formulating a resolution in this case, provided no direction for future use. The familiarity of long usage does not alter the fundamental illegality of the procedure; whether it is civilly or criminally so is irrelevant, since no penalty of any kind was imposed upon the violator(s).
We begin our analysis with the assumption that bring-down orders 4 are proper, if and when executed with the judicial niceties observed, Commonwealth v. Broaddus, 458 Pa. 261, 342 A.2d 746 (1974). "There is nothing sinister or secretive about this procedure and it is a practice commonly used, not only in Philadelphia County, but in other counties of the Commonwealth." Broaddus, supra; Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). However, in both Dickerson and Broaddus an actual Order was involved, representing permission sought from and granted by a court aware of the objective sought. In Commonwealth v. Trunk, 311 Pa. 555, 167 A. 333 (1933), our Supreme Court declined to determine the presence or otherwise of legal warrant in a letter from the district attorney to the warden of the prison, requesting a defendant's release to the custody of police officers for purposes of interrogation. However, even in Trunk the Court found, without defining it, that there is a proper way of taking an accused from jail in order to exercise what was termed the right of the district attorney and investigating officers to interview him. The operative term, however, with respect to lawful execution of the procedure, is 'Order', that is, the judicial writ required by the statute.
The definition of writ (legal being a redundancy) as it appears in Black's Law Dictionary offers no...
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