Com. v. Stein

• Decision Date: 31 December 1987
• Citation: 369 Pa.Super. 409,535 A.2d 616
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Daniel STEIN, Appellee.
• Court: Pennsylvania Superior Court

Page 616

535 A.2d 616

369 Pa.Super. 409

COMMONWEALTH of Pennsylvania, Appellant, v. Daniel STEIN, Appellee.

Superior Court of Pennsylvania.

Argued Oct. 15, 1987.

Filed Dec. 31, 1987.

Frances G. Gerson, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Robert P. Fulton, Philadelphia, for appellee.

Before McEWEN, MONTEMURO and KELLY, JJ.

MONTEMURO, Judge:

On June 3, 1987, the trial court issued an order against the Commonwealth suppressing the following evidence: an oral statement given by the defendant to the police, a written statement given by the defendant to the police, all physical evidence obtained as a result of a search of the defendant's residence, and all identifications of the defendant. The Commonwealth has appealed.

The relevant factual history is as follows. Early in the morning of June 21, 1984, Daniel Farrell was awakened by a light in his hallway. His bedroom light was then switched on, and he saw two armed men enter his bedroom. At the suppression hearing, Mr. Farrell testified that one of the men had a rifle and the other man, whom Farrell identified as the defendant Daniel Stein, came up to him and put a gun to the side of his face. RR. at 236A. Mr. Farrell testified that he was lying on his back in his bed when the two men entered his bedroom and that as the defendant approached him, the defendant warned Farrell that if Farrell moved he would "blow his brains out." RR. at 237A. Mr. Farrell testified that as the other man went through dresser drawers, the defendant continued to hold the gun to the side of his face and searched the drawers in a cabinet beside his bed. Mr. Farrell further testified as follows:

Q. During this time did you have an opportunity or what opportunities did you have to look at Stein himself?

A. Oh, I seen his face as he was right up to me. If I look eight, a couple times. (sic) He did not want me to look at him.

Q. How did you know he didn't want you to look at him?

A. He told me not to stare at him, look the other way, don't turn.

Q. What did you do?

A. Eventually, he said roll over on your back, face flat down, which I did. After three minutes of laying there looking at him and the other guy.

RR. at 240A.

A detective, John Gallow, interviewed Mr. Farrell shortly after the robbery. ¹ At that time, Mr. Farrell supplied the detective with physical descriptions of the two men involved in this incident. RR. at 102A. The detective used this information to generate a police memo which described the men as: one white male, age 28, weight 150 pounds, black hair, blue shirt, approximately 5'9"' tall, green pants and one white male, age 25, height 6'1"', black hair in ponytail, weight 150 pounds, white tee shirt and jeans. RR. at 106A. Approximately four weeks after the robbery, Mr. Farrell contacted detective Gallow and told him that he had learned the names of the two men who had robbed him by paying for information on the street. He said that the names of the men were Danny Stein and Ricky or Eric Rubin. RR. at 110A. During the evening of July 24, 1984, while on his way to do a record search of these two men, detective Gallow heard a radio transmission of a license check of a Daniel Stein, who had been stopped for a traffic violation. The detective then broadcast to the officers who were running this license check that a Daniel Stein was a suspect in a robbery and was suspected of being armed. RR. at 123A. In its Findings of Fact, the trial court concluded that although the police officers testified that, following this broadcast, they had transported the defendant to the Northeast Detective Division because he had no driver's license or vehicle registration, the officers had actually "decided that the defendant would be held in custody at least temporarily as he may be a suspect in a robbery." RR. at 23A (123A).

After researching police records and obtaining a negative of a Daniel Stein who lived in the vicinity where Daniel Farrell had been robbed and who had a history of similar crimes, detective Gallow went to the room where the defendant was being detained. Detective Gallow noticed that the defendant resembled the negative of the Daniel Stein that he had just retrieved from police files. He decided to question the defendant concerning the robbery of Daniel Farrell. RR. at 117A-119A and 126A-128A. At this point, the defendant had already been issued the traffic violations. As a result of detective Gallow's statements and questions to the defendant, the defendant gave an oral and a written statement concerning the robbery and consented to a search of his residence which resulted in the seizing by police of stereo equipment which had been reported by Daniel Farrell as missing from his home. RR. at 149A. The defendant was charged with robbery, theft, simple assault, criminal conspiracy and weapons offenses. Following a suppression hearing, the trial court held that the arrest of the defendant was illegal and on that basis suppressed the statements and the physical evidence. These rulings by the trial court have not been appealed by the Commonwealth. However, the Commonwealth has appealed from the suppression of the preliminary hearing identification of the defendant by the victim, Daniel Farrell, and the suppression of all subsequent identifications.

The record indicates that during the preliminary hearing, Daniel Farrell identified the defendant as the man who had robbed him. RR. at 243A. At the suppression hearing, Farrell testified that when he identified the defendant at this hearing, he had had "no doubt at all" that the defendant was the man who had robbed him. RR. at 247A. Although Mr. Farrell testified that he had discussed the investigation of this crime with detective Gallow before the date of the preliminary hearing, the parties do not dispute the fact that Mr. Farrell had not been shown a photograph of the defendant by police prior to the preliminary hearing and there had been no pre-trial lineup involving the defendant Daniel Stein. The first time that Mr. Farrell saw the defendant following the night of the robbery was at the preliminary hearing when he was asked by the court to indicate whether he recognized the defendant as one of the men who had been involved in the robbery. RR. at 280A. We must determine whether the trial court erred in suppressing all identifications by the victim Daniel Farrell as the fruit of the poisonous tree, the poisonous tree being the illegal arrest and statements of the defendant-appellee.

Initially, we reject the contention that the Commonwealth has waived this issue. The trial court specifically held in its Conclusions of Law that "any and all identifications of the defendant flow directly and unalterably from his illegal arrest and statement." RR. at 27A. During the suppression hearing, the trial court made it clear that it viewed the preliminary hearing identification of the defendant to be a "direct result" of the illegal arrest and, thus, a fruit of this poisonous tree. RR. at 362A and 371A. During the suppression hearing, the Commonwealth orally objected to the legal conclusions the trial court had reached. RR. at 376A. Further, this issue was included in the Commonwealth's statement of appellate issues which the Commonwealth filed pursuant to Pa.R.A.P. 1925(b):

Did the suppression court err in concluding that the defendant's statement, the physical evidence seized pursuant to a consent search and the complainant's identification of defendant were the direct result of an illegal arrest and inadmissible?

Our scope of review in suppression matters is limited primarily to questions of law. We are bound by the suppression court's findings of fact, if those findings are supported by the record. It is clear that we are not bound by the suppression court's conclusions of law. Commonwealth v. White, 358 Pa.Super. 120-123, 516 A.2d 1211, 1212-1213 (1986).

In reaching our decision in the instant case, we turn once more to the language of the United States Supreme Court in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963):

We need not hold that all evidence is the '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 the instant objection is made has been come at by the exploitation of that illegality or by means sufficiently distinguishable to be purged of the primary taint.'

What we must consider in the instant case is whether the identification of the defendant-appellee Stein was obtained by the exploitation of his concededly illegal arrest and statements to the police. In Commonwealth v. Howe, 246 Pa.Super. 7, 14, 369 A.2d 783, 786 (1977), we recognized that "the word 'exploitation' is important, for it implies a causal connection between the illegality and the evidence in question."

In Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978), the trial court had refused to suppress the identification testimony of a robbery victim, Carter, who had identified the defendant as the perpetrator of the crime at a preliminary hearing. In Ryan, as in the instant case, the victim had not seen the defendant or a photograph of the defendant prior to the preliminary hearing. In Ryan, as in the instant case, the arrest of the defendant was illegal because it had been made without a warrant and without probable cause. In Ryan, we affirmed the trial court and stated the following:

Identification evidence, however, will not be suppressed merely because it has derived from an illegal arrest. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). As our Supreme Court indicated in Garvin, we cannot assume that but for the illegal arrest appellant would have remained at large indefinitely. "No law abiding society could tolerate a presumption that but for the illegal arrest a...