Commonwealth v. Nelson

• Decision Date: 01 February 1980
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Hadley NELSON.
• Court: Pennsylvania Supreme Court

411 A.2d 740

488 Pa. 148

COMMONWEALTH of Pennsylvania, Appellant, v. Hadley NELSON.

Supreme Court of Pennsylvania.

February 1, 1980.

Reargument Denied March 17, 1980.

PER CURIAM.

The Court being equally divided, the order of the Superior Court is affirmed.

ROBERTS, J filed an Opinion in Support of Affirmance in which O'BRIEN and NIX, JJ., join.

LARSEN, J filed an Opinion in Support of Reversal in which EAGEN, C J., and FLAHERTY, J., join.

OPINION IN SUPPORT OF AFFIRMANCE

ROBERTS, Justice.

I agree with the conclusion of the suppression court, affirmed by the Superior Court, that the arrest of appellee Hadley Nelson is not supported by probable cause. These courts correctly held that the victim's identification of appellee following arrest, appellee's confession and physical evidence must be excluded as fruits of the illegal arrest. The confession must also be suppressed because appellee, a seventeen year old, was entitled to consult with an interested adult before waiving his Miranda rights. Accordingly, I would affirm.

I

The Opinion in Support of Reversal contends that appellee was not arrested when police summoned him to the patrol car. That Opinion's contention is based on a theory that appellee was not physically restrained, or otherwise "threatened or intimidated." This theory, however, has no support in our case law. In Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), this Court stated:

"An arrest may be accomplished by 'any act that indicates an intention to take (a person) into custody and (that) subjects him to the actual control and will of the person making the arrest . . . .' "

See also Steding v. Commonwealth, 480 Pa. 485, 391 A.2d 989 (1978); Commonwealth v. Brown, 230 Pa.Super. 214, 326 A.2d 906 (1974). Here the record is clear that appellee was under arrest from the moment he was so summoned by the arresting officer. When asked, "(A)t the point when you called him over to the car he wasn't free to go at that point, was he?," arresting Officer Passio, without qualification, responded "No." Record at 36a, N.T.S.H. 64.

The only information available to the arresting officer at the time he arrested appellee was that a black male had committed a rape in the neighborhood in which appellee was walking, some twenty minutes after the crime was reported. This evidence is clearly insufficient to support a finding of probable cause to arrest. Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978); Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976); Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975). Mere suspicion is insufficient, and the burden is on the Commonwealth to demonstrate with reasonable specificity that sufficient evidence of probable cause existed. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968).

This case is virtually identical to Commonwealth v. Sams, 465 Pa. 323, 350 A.2d 788 (1976), where this Court found insufficient evidence of probable cause to arrest. There,

"the arresting officer testified that he had no description of the alleged perpetrators of the homicide, other than 'Negro males' and no description of wearing apparel. All he knew was that they were running south on Eleventh and Girard Streets."

465 Pa. at 326, 350 A.2d at 789. Here, too, there is no basis for the officers to link appellee to the crime.

Since it is clear that the arrest was unlawful because not supported by probable cause, the "fruits" of the arrest must be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975). Whether evidence obtained pursuant to an illegal arrest was acquired "by the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint," Wong Sun, supra, 371 U.S. at 487-88, 83 S.Ct. at 417, is to be determined from a totality of the circumstances. See Brown v. Illinois, supra. Here, the suppression court and the Superior Court correctly held that the victim identification, the confession and the physical evidence were derivative of the illegal arrest.

II

An additional ground for excluding the confession is that appellee, a juvenile, was not provided an opportunity to consult with an interested adult. The position of the Opinion in Support of Reversal, that the presence of an interested adult was not required for a knowing and intelligent waiver of appellee's constitutional rights, is in direct conflict with the case law of Pennsylvania. This Court in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975), reiterated the per se rule for waiver of constitutional rights by a juvenile. See also Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979); Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974).

The Opinion in Support of Reversal appears to conclude that application of this Court's established per se rule of McCutchen would serve no purpose here. I disagree. Per se rules are needed to protect important interests of an accused. This Court has committed the test of a juvenile's waiver of personal constitutional rights to a per se rule and should, like the suppression court and the Superior Court, abide by it. See also Commonwealth v. Hackett, 484 Pa. 43, 398 A.2d 651 (1979); Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978); Commonwealth v. Smith, supra.

Accordingly, the suppression court and the Superior Court correctly held that the confession, victim identification and the physical evidence must be suppressed.

O'BRIEN and NIX, JJ., join in this Opinion in Support of Affirmance.

OPINION IN SUPPORT OF REVERSAL

LARSEN Justice.

This is an appeal by the Commonwealth from a per curiam order of the Superior Court affirming the grant of appellee Hadley Nelson's application to suppress evidence. The factual findings of the suppression court which are supported by the evidence and the uncontradicted testimony presented by the Commonwealth ^[1] disclose the following series of events:

At approximately 3 a. m. on September 19, 1975, Alethea Kociuba was stabbed and raped in her North Philadelphia residence. Within moments of the crime, its occurrence and location and the fact that the perpetrator was a negro male were broadcast over the police radio. These messages were received by Patrolman Joseph Passio who was approximately seven blocks from the crime scene and who then began to cruise the area surrounding the victim's residence in his patrol car. After finding the streets deserted (as is normally the case in that particular neighborhood during the early morning hours), Patrolman Passio parked his vehicle and entered the victim's residence. He surveyed the crime scene briefly, noting that the kitchen window was open, and returned to his automobile to resume patrolling the neighborhood.

At approximately 3:20 a. m., or twenty minutes after the incident, Patrolman Passio observed the appellee, a negro male, walking on Broad Street two to three blocks from the victim's residence. The appellee was walking very rapidly away from the vicinity of the victim's house and looking back over his left shoulder as he walked. Although the officer had just patrolled Broad Street, he had not seen the appellee or any other pedestrians, and he pulled his vehicle to the side of the road and summoned the appellee.

Patrolman Passio questioned the appellee as to his identity, where he had been, how he had gotten to that point on Broad Street, and his destination. Appellee responded to these questions in a nervous and agitated fashion, stating that he was seventeen; that he had no identification; that he had been on a bus which dropped him off approximately one and one-half miles further up Broad Street; that he had been walking down Broad Street since that time; and that he was going further down Broad Street with the intention of taking another bus to his home which was several more miles away. Another officer drove up and also began to participate in the discussion. In response to the second officer's questions, appellee stated that he had no money, no bus transfer, and that he was currently on probation for the crime of rape. Whereupon, the officers frisked or patted down the appellee and found that his clothing was in a state of disarray, his pants were very wrinkled, and his shirt tail was almost entirely out of his pants. Patrolman Passio then arrested the appellee, ^[2] placed him in the back of his patrol car, and transported him to the victim's residence.

Upon their arrival, the victim stated that she could not identify her assailant by sight because a pillow had been placed over her face before she was assaulted and raped. She stated that she could, however, identify her assailant's voice and that he had said to her, "I was sent by someone to do this and to kill you." The appellee was asked to repeat these words and, immediately after he had done so, was identified by the victim.

Appellee was then taken to the detective division, arriving there at approximately 4 a. m. A juvenile aid officer called the police station nearest to appellee's home and instructed them to contact appellee's parents. Without receiving a response to this message, the officer informed appellee of his constitutional rights and, after appellee indicated his willingness to speak to the officer without an attorney commenced questioning...