# Commonwealth v. Brooks

> Supreme Court of Pennsylvania · October 8, 1976 · 468 Pa. 547

URL: https://www.frixlaw.com/law-library/cases/9766273

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Richard M. BROOKS, Appellant (Two Cases)
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 8, 1976
- **Citations:** 468 Pa. 547; 364 A.2d 652; 1976 Pa. LEXIS 713
- **Precedential status:** Published
- **Opinion:** Concurrence by Pomeroy
- **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

POMEROY, Justice
(concurring).
The Court grants a new trial in the case at bar on the basis of its conclusion that its decision in Betrand Appeal, 451 Pa. 381 , 303 A.2d 486 (1973) is controlling. I agreed with the result in Betrand, but on a rationale somewhat different from that employed by the majority. 451 Pa. at 392 , 303 A.2d 486, 491 (concurring opinion of Pomeroy, J.). So here, I agree with the decision that Richard Brooks should have a new trial, but on the reasoning I originally espoused in Betrand. 1 Hence this separate opinion.
I continue to believe that the American Law Institute’s Model Code of Pre-Arraignment Procedure represents a sensible and workable rule to determine whether a voluntary confession given subsequent to an illegal arrest may *562 be admitted into evidence against the accused. Section 150.2(2) of the Proposed Official Draft of the Model Penal Code provides:
“(2) Statements Made after an Illegal Arrest. If a law enforcement officer, acting without a valid warrant, arrests a person without the reasonable cause required by Section 120.1, and the court determines that such arrest was made without fair basis for the belief that such cause existed, a statement made by such person after such arrest and prior to his release from custody or appearance before a judicial officer pursuant to Subsection 130.2(1) (b) shall not be admitted in evidence against such person in a criminal proceeding, unless such statement is admissible pursuant to Section 150.3.” (Emphasis supplied)
When an accused has been arrested without probable cause but has been properly advised of his rights and has thereafter voluntarily given a confession the issue of the admissibility of that confession turns, under the Code, on whether “the arrest was made without fair basis for the belief that [probable] cause existed.”. See Note, Section 150.2 ALI Model Code of Pre-Arraignment Procedure (Proposed Official Draft April 15,1973).
The recent United States Supreme Court decision in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975) does not require a retreat from the ALI position nor is it dispositive of the issue before us in this appeal. In Brown , the sole issue before the Court was whether the taint of an illegal arrest is dissipated by a showing that the warnings required by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) were read to the accused. The Court concluded that Miranda warnings alone are not sufficient to protect against wanton and purposeful violations of the Fourth Amendment. 2 The Court refused, however, to adopt a *563 per se rule which would always exclude confessions elicited after an illegal arrest.
“The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. . The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. Louisiana, 406 U.S. 356, 365 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant.” 422 U.S. 590 at 603 , 95 S.Ct. at 2261 , 45 L.Ed.2d at 427 . (Footnotes omitted).
In my view, the resolution of the issue before us should turn on an assessment of the individual facts of the case in the light of the ALI standard. I agree with the majority that appellant was arrested on the basis of an uncorroborated tip by an unidentified informant whose reliability was never established. Arrests made, on grounds so relatively flimsy as were here present do not, in my mind, give the police a fair basis for the belief that probable cause existed to arrest. See Betrand Appeal, 451 Pa. 381, 392 , 303 A.2d 486, 491 (1973) (concurring opinion of Pomeroy, J.). Accordingly, I concur in the result reached by the Court.
. See also Commonwealth v. Davis, 462 Pa. 27, 36 , 336 A.2d 888, 892 (1975) (dissenting opinion of Pomeroy, J.); Commonwealth v. Whitaker, 461 Pa. 407 , 412 n. 1, 336 A.2d 603 , 605 n. 1 (1975); Commonwealth v. Bailey, 460 Pa. 498, 507 , 333 A.2d 883, 887 (1975) (concurring opinion of Pomeroy, J.); Commonwealth v. Jackson, 459 Pa. 669, 677 , 331 A.2d 189, 192 (1975) (concurring opinion of Pomeroy, J.); Commonwealth v. Richards, 458 Pa. 455, 469 , 327 A.2d 63, 69 (1974) (dissenting opinion of Pomeroy, J.); Commonwealth v. Daniels, 455 Pa. 552, 558 , 317 A.2d 237, 240 (1974) (concurring opinion of Pomeroy, J.).
. This has long been the stance of Pennsylvania decisions. See, e. g., Betrand Appeal, 451 Pa. 381 , 303 A.2d 486 (1973).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766273. Public record. Not legal advice.