Commonwealth v. Cephas

• Decision Date: 25 May 1972
• Citation: 447 Pa. 500,291 A.2d 106
• Parties: COMMONWEALTH of Pennsylvania v. Harold CEPHAS, Appellant.
• Court: Pennsylvania Supreme Court

291 A.2d 106

447 Pa. 500

COMMONWEALTH of Pennsylvania v. Harold CEPHAS, Appellant.

Supreme Court of Pennsylvania.

May 25, 1972.

John W. Packel, Chief, Appeals Div., Vincent J Ziccardi, Defender, Francis S. Wright, Jr., Asst. Defender Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist Atty., James D. Crawford, Deputy Dist. Atty., Milton M Stein, Chief, Appeals Div., Philadelphia, for appellee.

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

OPINION

EAGEN Justice.

This is an appeal from the per curiam order of the Superior Court, affirming the judgments of sentence imposed on the appellant, ^[1] Harold Cephas, following his conviction by a jury in Philadelphia of the crimes of conspiracy, fraudulent conversion, fraudulently making and uttering written instruments, and uttering worthless checks. The primary question presented, one of first impression before this Court, is whether appellant's Fourth Amendment rights were violated by the evidentiary use at trial (over objection and after a timely motion to suppress) of the testimony of a witness found during an illegal search of appellant's apartment.

The record discloses the following pertinent facts.

On June 27, 1967, the police conducted an admittedly illegal search of appellant's apartment. ^[2] During the course of the unlawful search the police seized various physical objects, and illegally arrested numerous individuals present in the apartment. One such individual, anne Mangini, was immediately taken to police headquarters and questioned over an extended period of time. She subsequently gave a statement to the police, which implicated herself and the appellant in the crimes which are the subject of this appeal. She informed the police that appellant and herself engaged in a fraudulent check cashing operation whereby she, at the urging of appellant, would take a forged check into a bank and 'split deposit' the proceeds, that is, after opening an account under a fictitious name, she would deposit a portion of the check in the account, and receive the remainder in cash.

Anne Mangini, prior to the trial of appellant plead guilty to the crimes, and agreed to testify as a witness for the Commonwealth against appellant. She had not been sentenced at the time of appellant's trial.

A pre-trial suppression hearing was held at which time the Commonwealth conceded that the search was illegal and that all physical evidence seized in the apartment should be suppressed. The Commonwealth argued however, that the testimony of Anne Mangini should not be suppressed as the fruit of the illegal search since a distinction should be drawn between physical and verbal evidence, and moreover, the testimony was not the fruit of the search.

Counsel for appellant on the other hand argued that Anne Mangini should not be allowed to testify since her testimony would be the fruit of an illegal search. He pointed out to the hearing court that prior to the search the police did not in anyway know of the existence of Anne Mangini, nor did they have any evidence that appellant was committing any crime, and the police only had an 'idea of what was going on.' Thus, he attempted to impress upon the hearing court that the unlawful action of the police was the foundation of all the Commonwealth's evidence, and it should be suppressed under the 'fruit of the poisonious tree' doctrine.

The suppression judge ruled that the testimony of Anne Mangini could be admitted at trial. The Commonwealth's case rests primarily upon this evidence.

As we view the case the primary question for consideration can simply be stated as follows: May the Commonwealth introduce the testimony of a witness at trial, whose existence was solely come upon as the result of an illegal search.

Initially, we must consider whether verbal evidence of this general nature comes within the protection of the Fourth Amendment exclusionary rule. We find the reasoning of Mr. Justice Brennan, speaking for the Court, in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), pertinent to this point. He stated:

'The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. Unitted States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers and effects.' Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States, 1 Cir., 227 F.2d 598. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion. See Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690. Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers, Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained, elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction.' 371 U.S. 485--486, 83 S.Ct. at 416.

We believe the reasoning expressed in this passage clearly shows that the verbal evidence from a witness found during an illegal search does come within the exclusionary rule, if the evidence is the 'fruit' of the illegality. Thus, the more pressing question is whether under the facts of the present case the evidence is the 'fruit' of the unlawful police conduct.

The answer to this question must be found in an analysis of the 'fruit of the poisonious tree' doctrine, as enunciated in three decisions of the United States Supreme Court. See Wong Sun v. United States, supra; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

In Siverthorne, Mr. Justice Holmes, speaking for the majority, first espoused the doctrine in a case where the federal government sought to introduce photographs they had made of illegally seized corporate records which had been held inadmissible.

'The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.' 251 U.S. 392, 40 S.Ct. at 183.

Hence, the only apparent exception under Mr. Justice Holmes' rule was if the evidence were derived from an independent source. Mr. Justice Frankfurter, broadened this exception in Nardone, wherein he stated:

'Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.' 308 U.S. 341, 60 S.Ct. at 268.

Thus, facts not obtained from an independent source, but far removed from the original illegality, so that 'as a matter of good sense' the causal chain has been broken could be employed.

Lastly, Mr. Justice Brennan set forth a refined standard in Wong Sun. He stated:

'We need not hold that all evidence is 'fruit of the poisonous tree' simply because if 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." 371 U.S. 487--488, 83 S.Ct. at 417.

None of the Supreme Court cases, however, have dealt directly with the fact situation presented herein, consequently, we must analyze the instant case through an application of the general rules espoused in these decisions to the present facts.

Initially, it is clear from the record that the police had no 'independent source' of information as to the existence of this witness or the information which she gave. ^[3] Prior to the time of the illegal search the police had no knowledge that Anne Mangini was involved in any illegality nor were they in any way aware that she could aid the police in implicating appellant in any criminal activity, in fact, it can be said that the police were not aware of the existence of Anne Mangini, since she had never before been involved in any criminal activity. Nor were the authorities apprised of the information she offered before the search. As to whether the police would have discovered her even without the illegal search the Commonwealth has not produced any evidence that her involvement in the crime would have subsequently come to light, ^[4] and given the facts of the instant record it is not unreasonable to say that except for the unlawful search she may never have become available as a witness. Moreover, it cannot be said that she would have voluntarily come forth and given...