Commonwealth v. Krall

• Decision Date: 04 May 1973
• Citation: 304 A.2d 488,452 Pa. 215
• Parties: COMMONWEALTH of Pennsylvania v. John Richard KRALL, Appellant.
• Court: Pennsylvania Supreme Court

304 A.2d 488

452 Pa. 215

COMMONWEALTH of Pennsylvania v. John Richard KRALL, Appellant.

Supreme Court of Pennsylvania.

May 4, 1973.

Joseph C. Mesics, Public Defender, Lebanon, for appellant.

George E. Christianson, Dist. Atty., Frederick S. Wolfson, David J Brightbill, Asst. Dist. Attys., Lebanon, for appellee.

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

OPINION OF THE COURT

POMEROY Justice.

John Richard Krall was convicted by a jury in Lebanon County of burglary and was sentenced to a term of two-to-five years. Following denial of post-trial motions in the trial court, appellant prosecuted a direct appeal to the Superior Court where the judgment of sentence was affirmed in a unanimous Per curiam order, 221 Pa.Super. 783, 291 A.2d 786. We granted review to consider appellant's contention that he had been illegally arrested.

In the early morning of April 1, 1970, the vehicle in which appellant Krall (the driver) and one Glenn Swanger (the passenger) were proceeding on a road leading from Myerstown, Pennsylvania was stopped by a state trooper. The trooper discovered that Krall possessed neither an operator's license nor registration for the car, and that the car appeared (from external inspection) to contain burglary tools on the floor. Both Krall and Swanger were immediately arrested for possession of burglary tools and were escorted to a nearby magistrate. The police obtained a search warrant and returned to the car, finding there many tools suitable for use in the commission of burglaries. While the two occupants of the vehicle were still present in the magistrate's office, word came from Myerstown that the Post Office there had been entered during the night. A button discovered in that building matched those on a coat worn by Swanger, one button of which happened to be missing. Neither Krall nor Swanger was immediately charged with burglary. They were charged instead with possession of burglary tools and, since neither was able to post bail, were detained in the Lebanon County Jail.

On April 13, 1970--some two weeks later--the Assistant Chief of the Myerstown Borough Police Department filed a criminal complaint against Krall before a justice of the peace for the burglary of the Post Office, and obtained from her a warrant for the arrest of Krall, who was still confined in the Lebanon County Jail.

On June 2, 1970 a preliminary hearing was held before the justice of the peace who had issued the warrant and appellant Krall was held for court. Thereafter, on July 29, 1970, appellant filed in the lower court a motion entitled 'Application to Dismiss Charges' in which it was alleged that the complaint and the arrest warrant failed to provide the issuing authority with information from which she could have made a neutral and independent determination of probable cause for the defendant's arrest. ^[1] No hearing was held, however, and this motion was ultimately denied by the court. ^[2] Thereafter, Krall was indicted for burglary, and on December 15, 1970 was convicted after a trial by jury. Post-trial motions were refused, including a motion in arrest of judgment on the ground that 'defendant's constitutional rights were violated by an unlawful arrest.' The appeal to the Superior Court followed.

The appellant here asserts, as he did below, that his arrest was illegal because the record fails to show that the justice of the peace who issued the warrant for arrest had probable cause to do so. He contends that all proceedings which followed, including trial and conviction, were therefore rendered nugatory. No attack has been made on the search warrant nor on the evidence seized pursuant thereto. Nor has it been alleged that any evidence obtained by the police was the fruit of an unlawful arrest. Cf. Appeal of Betrand, Pa., 303 A.2d 486 (1973); Commonwealth v. Brown, Pa., 301 A.2d 876 (1973); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967). The complaint is solely that the appellant Himself was never properly and legally before the court. What appellant seeks, in effect, is suppression of his very person. This we decline to do.

There is, of course, no doubt that the issuing authority must have probable cause to believe a suspect guilty of a crime charged against him before issuing a warrant for his arrest. This is ancient law and basic to our concept of freedom. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). It is embodied in the Fourth Amendment to the United States Constitution. It is reflected in our Rules of Criminal Procedure, Rule 106. ^[3] The defect in the complaint and warrant to which appellant points is apparent: nowhere is information therein provided from which the justice of the peace could make a detached judgment that probable cause existed to issue process. See Giordenello, supra, 357 U.S. at 486, 78 S.Ct. 1245. Nor is it possible to gather from the record presented to this Court that the police officer presented the justice of the peace with verbal statements not contained in the complaint from which a conclusion of probable cause might properly be drawn. Commonwealth v. Milliken, Pa., 300 A.2d 78 (1973). Unfortunately for appellant, the remedy on this direct appeal is Not to vacate his conviction.

It has long been the law in this and in other jurisdictions that 'the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant.' 41 Am.Jur.2d, Indictments and Informations § 18, at 891 (1968). In Albrecht v. United States, 273 U.S. 1, 5, 47 S.Ct. 250, 251, 71 L.Ed. 505 (1927), the contention was made that the warrant on which the defendant was initially arrested was defective and that therefore the criminal information subsequently filed must be quashed. The Court, per Brandeis, J., did not agree:

'As the affidavits on which the warrant issued had not been properly verified, the arrest was in violation of the clause in the Fourth Amendment which declares that 'no warrants shall issue but upon probable clause supported by oath or affirmation' . . .. But it does not follow that because the arrest was illegal, the information was or became void.' (Emphasis added).

See also United States v. Hughes, 311 F.2d 845 (3d Cir. 1962). ^[4]

Our own law is to the same effect. In Commonwealth v. Brennan, 193 Pa. 567, 569, 44 A. 498 (1899), the appellant had been indicted, tried and convicted of murder. At trial he sought by motion to quash the indictment because it was not found after an information sworn to and subscribed before the committing magistrate. This Court held:

'While the defendant might have been heard on the subject upon a proceeding to be discharged from custody on the ground of an illegal commitment, It is certainly too late after indictment found upon the trial of the cause. The finding of the indictment cannot be invalidated for any such reason.' (Emphasis added).

See also Commonwealth v....