Commonwealth v. Richards
| Decision Date | 16 October 1974 |
| Citation | 327 A.2d 63,458 Pa. 455 |
| Parties | COMMONWEALTH of Pennsylvania v. Edwin Carl RICHARDS, Jr., Appellant. |
| Court | Pennsylvania Supreme Court |
Defendant was convicted in the Court of Common Pleas, Criminal Allegheny County, No. 5573 September Term, 1971, Joseph H Ridge, J., of burglary, assault with intent to ravish indecent assault and kidnapping, and he appealed. The Superior Court, No. 314, April Term, 1973, 223 Pa.Super. 757 299 A.2d 344, affirmed, and allocatur was granted. The Supreme Court, No. 137 March Term, 1973, Nix, J., held that victim's description of a white male with blondish thinning hair, medium height, ‘ real skinny,’ and approximately 30 years of age failed to have that conclusive quality which would have necessarily drawn attention to a particular individual, and was not sufficient on which to establish probable cause for arrest of defendant without warrant, particularly where defendant was not apprehended at or near scene shortly after incident wearing clothing described, but rather several days later. It was further held that incriminatory oral remarks, which were allegedly made during an illegal detention after a lineup, were the products of the exploitation of the illegality and should have been suppressed.
Judgment of sentence reversed, and new trial awarded.
John J. Dean, John H. Corbett, Jr., Pittsburgh, for appellant.
Robert W. Duggan, Dist. Atty., Robert L. Eberhardt, Peter Foster, Asst. Dist. Attys., J. G. Alford, Pittsburgh, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
On the night of June 28, 1971, an intruder, later identified as appellant, entered the bedroom of Marla Jean Nase, then 11 years of age, awakened her and advised her that he intended to kidnap her for ransom. The appellant's face below the nose was covered with a mask but the victim was able to describe him as a white male, of thin build, approximately 5 10 in height with blondish hair that was showing signs of balding. At the time of the incident, he was wearing a dark black or dark blue Barracuda jacket with dark pants. The intruder placed a knife at the throat of his young victim and forced her to a nearby yard where he blindfolded her, bound her hands and attempted to rape her. The assailant was interrupted by the screams of Marla's mother when she discovered her daughter's absence from her room.
As a result of a police canvass of the neighborhood, they received information that an individual fitting the general description resided in a room in a hotel located approximately one block from the residence of Marla. At 9:25 A.M. on July 1st, the police proceeded to the room of the appellant and he was subsequently questioned and charged with the crimes of burglary, assault with the intent to ravish, indecent assault and kidnapping.
After a trial before a jury, the appellant was convicted on all counts and following the dismissal of post-trial motions was sentenced to serve a term of imprisonment of 7 1/2 to 15 years. The appeal to the Superior Court resulted in a Per curiam affirmance. We granted allocatur and now reverse.
The first question raised is whether or not the appellant was illegally arrested. The Commonwealth contends that the appellant voluntarily accompanied the police officers to their headquarters for investigatory purposes and was in fact not arrested until after he had been identified by the victim. We believe, however, that the following recitation of facts dispute such a conclusion. In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), we defined an arrest as any act that indicates an intention to take an individual into custody and that subjects him to the actual control and will of the person making the arrest. Accepting the evidence most favorable to the Commonwealth, the police arrived in the room of the appellant at 9:25 A.M., where after explaining that they were investigating a burglary they asked appellant to accompany them to police headquarters for questioning. While at the police station, the appellant, a diabetic, became ill and was taken to the hospital accompanied by an officer who had been instructed to stay with him. The entire time that he was in the hospital the police officials remained with him. When the medical ministrations had been completed, appellant was returned to the police station still in the company of the police officers. He was then alleged to have waived his rights of counsel at the time of a lineup and was identified as the person who committed these acts. During the time the appellant was in the police station prior to the lineup he refused to make a statement pertaining to the incident and attempted on two separate occasions to reach two attorneys without success.
When we consider the fact that the appellant merely gave his name to the police and would not participate in any further discussions either concerning the crime involved or other matters, that in fact he became ill and required medical attention, that during the stay in the hospital he was accompanied at all times by police officials, it is most difficult to conclude that he remained with the police from 9:25 A.M. until 3:15 P.M. (the time of the lineup) voluntarily. The evidence offered by the Commonwealth to support their view of a voluntary detention was addressed primarily to the state of mind of the police officers involved. However, under the Bosurgi test the question is the reasonable impression conveyed to the person subjected to the seizure. Here, his unwillingness to cooperate in any way with the investigation, his attempt to seek assistance of counsel, and his physical distress as a result of a diabetic condition, force us to conclude that he remained with the police for a period of approximately six hours only because he believed no other alternative was available. And equally as important, the circumstances surrounding his custody warranted such a conclusion on his part.
Unquestionably the police, when they went to his hotel room that morning, had made him the focus of their inquiry. Their purpose for being there was the fact that he fit the general description given by the victim. Before questioning, they gave him the Miranda warnings and throughout the time in question police officials were constantly assigned to be with him. Clearly, he was a suspect; clearly he was the focus of the investigation and we believe equally as apparent his freedom of movement had been restrained. In United States ex rel. Hollman v. Rundle, 329 F.Supp. 1052 (E.D.Pa., 1971) a robbery victim had given a description to the police of the man who committed the act. During the course of that investigation the police stopped the accused and took him to the station, warned him of his rights and photographed him. The prosecution argued that the accused's submission to the photographing was voluntary and therefore there was no need to establish probable cause to support their right to seize him. In response to this claim the court responded:
on the part of the arresting officers.'
A review of the record forces us to conclude that there was no credible testimony to support the finding of the court below that appellant had voluntarily submitted to this investigation. A reasonable interpretation of the findings most favorable to the Commonwealth demands the conclusion that Edwin Richards was arrested when the police went to his hotel room that morning.
The Commonwealth also attempts to avoid the necessity of demonstrating probable cause by urging that it was merely an investigatory detention. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court of the United States recognized the right of the law enforcement officials to conduct limited searches and seizures under carefully-defined circumstances without the need to establish probable cause. The Terry court, however, limited this right to those on-the-street encounters where the necessity for immediate action is obvious and the danger to the person of the officer imminent. This record is barren of the articulable facts required by the Terry court to permit this type of intrusion upon the personal security of an individual in absence of a showing of probable cause. In approving an investigatory stop in absence of probable cause the Supreme Court was most careful to confine it to situations where the intrusion was limited in nature and the exigencies of the moment required immediate action.
‘ (a) brief stop of a suspicious individual, in order to determine his identity or to maintain status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.’ Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).[1]
Here there was no need for immediate action nor was this the limited intrusion envisioned by the Terry and Adams decisions. This court has not, nor need we now, decide whether in Pennsylvania we will embrace the concept of an investigatory detention, and if so the nature of the panoply of rights necessary to protect a suspect during such an intrusion. Under the facts of the case Sub judice this would...
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