Com. v. Richman

• Decision Date: 22 May 1974
• Citation: 320 A.2d 351,458 Pa. 167
• Parties: COMMONWEALTH of Pennsylvania v. Leroy RICHMAN, Appellant.
• Court: Pennsylvania Supreme Court

Page 351

320 A.2d 351

458 Pa. 167

COMMONWEALTH of Pennsylvania v. Leroy RICHMAN, Appellant.

Supreme Court of Pennsylvania.

May 22, 1974.

Vincent J. Ziccardi, Defender, Francis S. Wright, Jr., Chief, Appeals Div., Defender Assn. of Phila., Edward H. Weis, Asst. Defender, Kenneth Mirsky, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Milton M Stein, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, James J. Wilson, Asst. Dist. Atty., James T. Ranney, Asst. Dist. Atty., Asst. Chief, Appeals Div., for appellee.

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

OPINION

NIX, Justice.

Appellant Leroy Richman was tried by a judge sitting without a jury and found guilty on charges of burglary and rape. After post-trial motions were denied, he was sentenced to from two to five years. On appeal, the Superior Court affirmed, Per curiam. We granted allocatur limited to the issue whether there was a constitutional right to counsel at a pre-indictment lineup, and if so, whether that right was intelligently waived in this case.

Appellant was arrested at 9:30 A.M. on May 6th and taken to the 9th District Central Detective Division. He signed a written waiver of counsel, and at about 2:00 P.M. he was placed in a six-man lineup where the complaining witness identified him as her assailant. At trial, the complaining witness testified that on May 1, 1970, the appellant entered her apartment and forced her to submit to intercourse by threatening her with a knife. An in-court identification was made without reference to the lineup during the prosecution's case-in-chief.

Appellant now contends that he had a right to counsel at the lineup, that he did not waive that right, and that the in-court identification was tainted by the uncounseled lineup.

The United States Supreme Court first recognized a suspect's right to counsel at a pretrial lineup in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The policy behind the prophylactic exclusion of uncounseled lineups was explained as follows:

'Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) . . . as at the trial itself.' Powell v. Alabama, Supra, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932).' (Footnote omitted). 388 U.S. 236--237, 87 S.Ct. 1937.

While Wade's indictment preceded his lineup, the indictment also preceded the arrest, and the Court's opinion did not specify precisely when the right to counsel attaches.

Five years later, a plurality of the Supreme Court of the United States in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) declined to apply Wade to lineups occurring 'before the commencement of any prosecution whatever.' 406 U.S. at 690, 92 S.Ct. at 1883. ¹ The decision in Kirby does not suggest that the rationale which spawned Wade is inapplicable to such lineups. Rather, Kirby, was concerned with striking 'the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.' 406 U.S. at 691, 92 S.Ct. at 1883.

In attempting to reach this balance, the plurality noted:

'The initiation of judicial criminal proceedings is far from a mere formalism.

It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has commited itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable.' (Footnote omitted) 406 U.S. at 689, 92 S.Ct. at 1882.

Therefore, they held that the Sixth Amendment right to counsel applies only to lineups conducted 'at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information or arraignment', 406 U.S. at 689, 92 S.Ct. at 1882.

Kirby does not establish an all inclusive rule; rather, the line to be drawn depends upon the procedure employed by each state. We are therefore faced with the issue of whether this lineup preceded the 'initiation of adversary judicial proceedings' as defined in Pennsylvania. While the plurality in Kirby attaches some significance to the indictment, they specifically mention several benchmarks: 'formal charge, preliminary hearing, indictment, information, or arraignment.' 406 U.S. at 689, 92 S.Ct. at 1882. We are convinced that it would be artificial to attach conclusionary significance to the indictment in Pennsylvania. ² Rather, we hold that Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), appropriately draws the line for determining the initiation of judicial proceedings in Pennsylvania at the arrest.

As we noted in Whiting, the policy behind the Wade rule applies with equal force to all confrontations conducted after arrest. Kirby only instructs us to limit that rule where the limitation would benefit the interest of society in the prompt and purposeful investigation of an unsolved crime. In light of Pennsylvania's procedure, we find no countervailing benefit where the lineup occurs after arrest.

In reaching that conclusion, we note that the approval by a magistrate of a written complaint is at least as significant as the indictment in determining the commencement of adversary proceedings and the strength of the government's commitment to prosecute. See, United States ex rel. Robinson v. Zelker, 468 F.2d 159, 163 (2d Cir. 1972).

'Here the arrest warrant itself commanded that appellant be brought forthwith before the Criminal Court 'to answer the said charge, and to be dealt with according to law.' These were formal criminal proceedings, for the warrant had been signed by a judge based on an 'information upon oath' that appellant did commit the crimes of assault, robbery and possession of a dangerous weapon. This being true, Wade required counsel at the show-up.'

In Pennsylvania, magisterial approval of a complaint occurs either at the issuance of an arrest warrant, or, for warrantless arrests, at the preliminary arraignment. See, Pa.R.Crim.P. 130, 19 P.S. Appendix. ³ The reasoning of Robinson would clearly apply to both situations.

The case at bar, however, concerns a lineup conducted after a warrantless arrest and before the preliminary arraignment. Having determined that Wade protection must be provided subsequent to an arrest on a warrant, we must decide whether to distinguish arrests conducted without a warrant. We decline to do so for two reasons.

First, a warrantless arrest is justified only in the face of compelling exigent circumstances which preclude the police from going before a detached magistrate. See generally, Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Such exceptions do not remove the necessity of probable cause, they merely place the determination of probable cause in the hands of the police. While events may demand a procedural departure from the general requirement of a detached magistrate we must emphatically reject any attempt to use such exigent circumstances to create substantive benefits for arrests conducted without warrants. To allow uncounseled lineups between warrantless arrests and preliminary arraignment would only encourage abuse of the exigent circumstances exception and udner-cut our strong policy requiring warrants whenever feasible.

Equally as significant is the policy behind Rule 130, Supra, requiring that the suspect 'shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him.' Under that Rule, filing of such a complaint must follow a warrantless arrest without unnecessary delay, and, as we have interpreted that phrase, only delays for routine police procedures--booking, fingerprinting, photographing, and the recognized administrative procedures are permissible. ⁴ Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). See also, Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); and Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973). Thus, we see no basis for distinguishing arrests with warrants and arrests without warrants for purposes of Kirby. In the former cases, the complaint will have already been filed, and in the latter, the complaint must be filed without 'unnecessary delay' as we have defined the term.

The Commonwealth admits that its evidence against appellant prior to the lineup was sufficient to establish probable cause to arrest him, but it argues that it was 'fairer' to conduct the lineup before giving him a preliminary arraignment. We cannot agree. After the arraignment, a lineup could have been conducted without encroaching on the principles of Rule 130 or the right to counsel enunciated in Wade. To draw a distinction between arrests with and without warrants would encourage police to ignore the mandate of Rule 130 and would not aid any legitimate police interest in facilitating the investigation of crime. We therefore do not feel that either the 'committed to prosecution' standard or the 'balance' mentioned in Kirby justify such a...