Petition — Pennsylvania v. Williams

\

} MAY 11 1979

|_MICHAPL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 197_

N. #8 -169%

COMMONWEALTH OF PENNSYLVANIA,

ETITIONER

V.

KEVIN WILLIAMS

ResPonDENT

PETITION FOR WRIT OF CERTIORARI

TO

THE SUPREME COURT OF PENNSYLVANIA

MARIANNE E, COX

ASSISTANT DISTRICT ATTORNEY

beeurr H. GOLDBLATT

EPUTY ISTRICT ATTORNEY FOR

ROWARD G, RENDELL

ISTRICT ATTORNEY

4OO Centre Sayare Wes

NILADELPHIA, PENNSYLVANIA 19102

4

Opintons BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISION INVOLVED

STATUTORY PROVISION INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I,

II,

THE EXCLUSIONARY RULE SHOULD NOT

BE MANDATORILY APPLIED TO ALL

FourRTH AMENDMENT VIOLATIONS,

ESPECIALLY WHERE, AS HERE, THE

VIOLATION IS TECHNICAL AND NOT

BASED UPON KNOWING POLICE MISCONDUCT.

EVEN IF THE EXCLUSIONARY RULE IS

APPLICABLE, RESPONDENT'S VOLUNTARY

STATEMENT, MADE AT A STATION HOUSE

AFTER HIS ARREST. SHOULD NOT BE

DEEMED TAINTED BY THE ABSENCE OF AN

ARREST WARRANT, WHERE THE ARREST

WAS SUPPORTED BY MORE THAN AMPLE

PROBABLE CAUSE, AND WAS NOT EFFEC-

TUATED IN A MANNER CALCULATED TO

om WAN fk re

8-13

CAUSE SURPRISE, FRIGHT AND

CONFUSION, OR IN AN ATTEMPT TO

DEVELOP INCRIMINATING EVIDENCE

TO JUSTIFY THE ARREST,

III. THE FourTH AMENDMENT OF THE

UNITED STATES CONSTITUTION DOES

NOT PROHIBIT A PEACEFUL PROBABLE

CAUSE ARREST OF A FELON IN HIS

HOME.

CONCLUSION

APPENDICES TO THE BRIEF

APPENDIX A: OPINION OF SuPREME CourT OF PENN-

SYLVANIA

APPENDIX B: ORDER OF THE SuPREME CouRT OF

PENNSYLVANIA DENYING PETITION FOR

REARGUMENT

AppenDIx C: OPINION OF CourT oF Common PLEAS

OF PHILADELPHIA CouNTY

II

14-17

18-20

21

1A-17A

18A

19A-33A

TABLE OF CITATIONS PAGE

FeperaL Cases:

ALDERMAN V. Unitep States, 344 U.S. 165, 89

S. Cr. 961 (1968) 13

ALMEIDA-SANCHEZ V. UNITED States, 413 U.S, 266,

93 S.€r, 2535 (1973) 10

Bivens v. S1x UNKNOWN NAMED AGENTS OF THE F.B,I,.

403 U.S. 388, 91 S.Ct, 1999 (1971) 11.17

Brown V. Ittinots, 422 U.S, 590, 95 S.Cr, 2254

(1975) 14,15,16,17

Coo.rpce v. New Hampsuire, 403 U.S, 443, 91 S.CT.

2022 (1971), REHEARING DENIED, 404 U.S,

874, 92 S.Ct. 26 (197) 19

GeRSTEIN Vv. PuGH, 420 U.S, 103, 95 S.Ct. 854

(1975) 19

Ker v, CALIFORNIA, 374 U.S, 23, 83 S.Ct. 1623

(1963) 19

Mapp v. Ou10, 367 U.S, 643, 81 S.Ct. 1684 (1961) 10

STONE V. PoweLL.-428 U.S, 465, 96 S.Ct. 3037

(1976), REHEARING DENIED, 429 U.S, 874,

97 S.Ct. 197 (1976) 9,10,11.12,13

UNITED States v. CALANDRA, 414 U.S. 338, 94 S.CT.

613 (1974) 13

IIT

PAGE

FEDERAL Cases:

UNITED States v. CeccoLIni, 435 U.S, 268, 98

S.Ct. 1054 (1978) 12,15

UntTep States v, JANIS, 428 U.S. 433. 96 S.CT,

3021 (1976), REHEARING DENIED, 429 U.S,

874, 97 S.Ct. 196 (1976) 9.10.13

UntTep States v. Pertier, 422 U.S, 531, 95

S.Ct. 2313 (1975) 9,10

UNITED STATES v, Watson, 423 U.S, 411. 96 S.CT.

820 (1976), REHEARING DENIED, 424 U.S, 979,

96 S.Ct. 1488 (1976) 18,19

WALDER v. UNITED States, 347 U.S, 62. 74 S.CT,

354 (1964) 13

WARDEN V. HAYDEN, 387 U.S, 294, 87 S.Ct. 1642

(1967) y

PENNSYLVANIA CASES:

CoMMONWEALTH V. CarTER, 444 Pa, 405, 282 A.2p

_ 375 (1971) 9

CoMMONWEALTH V, FLADGER, ___ Pa. Superior CT,

__, 398 A.2p 707 (1979) 18

CoMMONWEALTH V. JACKSON. 450 Pa. 113, 299 A.2p

213 (1973) 9

IV

PENNSYLVANIA CASES:

CoMMONWEALTH V, WILLIAMS, __ PA, __. 396 A.2p

1177 (1978)

OTHER CASES:

Payton v. New York, Rippick v. New York. 45

N.Y.2p 300, 380 N.E.2p 224 (1978). Pros.

JURIS. NOTED, 47 U.S.L.W. 3408 (1978)

(Nos. 78-5420, 78-5421)

CONSTITUTIONAL AND STATUTORY PROVISIONS:

UntTeD STATES CONSTITUTION, AMENDMENT IV

Pa, R, Crim. P.. Rute 101, Pa. Stat. ANN,

Tit. 19 (Supe, 1978)

OTHER AUTHORITIES:

ALI, A Mopet Cope oF PRe-ARRAIGNMENT PROCEDURE,

$§120.1 anp 120.6 Note AND COMMENTARY

(OrFiciac Drart. 1972)

ALI. A Mopet Cope oF PRE-ARRAIGNMENT PROCEDURE.

§2902 (May 20, 1975)

H. Frrenpty, BencHmarks (1967)

8 J. Wremore. Evipence, $2184 (McNAUGHTON &D.

1971)

8.20

PASSIM

18

12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 197.

NO, eer ras

COMMONWEALTH OF PENNSYLVANIA,

ETITIONER

V.

KEVIN WILLIAMS,

eseoupenr

PETITION FOR WRIT OF CERTIORARI

T0

THE SUPREME COURT OF PENNSYLVANIA

THE PETITIONER, THE COMMONWEALTH OF PENNSYLVANIA,

RESPECTFULLY PRAYS THAT A WRIT OF CERTIORARI ISSUE

TO REVIEW THE JUDGMENT AND OPINION OF THE PENNSYLVANIA

Supreme Court, DATED NovemBer 17, 1978, IN THE ABOVE-

CAPTIONED CASE,

OPINIONS BELOW

THE OPINION OF THE PENNSYLVANIA SUPREME COURT,

WHICH IS UNOFFICIALLY REPORTED AT 396 A,2p 1177 (1978),

IS SET OUT IN THE APPENDIX, (THIS OPINION HAS NOT

YET BEEN REPORTED IN THE OFFICIAL STATE REPORTS).

ALSO INCLUDED IN THE APPENDIX IS THE UPINION OF THE

Court OF ComMON PLEAS OF PHILADELPHIA County.

SOLELY BECAUSE THE POLICE FAILED TO OBTAIN AN ARREST

WARRANT WHICH WAS NOT REQUIRED AT THE TIME?

Is THE FourRTH AMENDMENT TO THE UNITED STATES

CONSTITUTION VIOLATED BY A PEACEFUL WARRANTLESS FELONY

ARREST iN A DWELLING, WHERE THE ENTRY WAS CONSENTUAL,

AND THE ARREST IS SUPPORTED BY MORE THAN ADEQUATE

PROBABLE CAUSE?

JURISDICTION

THE ORDER OF THE PENNSYLVANIA SUPREME COURT WAS

ENTERED NovemBer 28, 1978.1 A TIMELY APPLICATION FOR

REARGUMENT, WHICH WAS THEREAFTER FILED BY PETITIONER.

WAS DENIED ON FeBruary 12, 1979. THis PETITION FOR

CERTIORARI WAS FILED WITHIN NINETY (90) DAYS OF THAT r

DENIAL. THE JURISDICTION OF THIS CouRT IS INVOKED

PURSUANT TO 28, U.S.C, $1254(1), | CONSTITUTIONAL PROVISION INVOLVED

UNITED StaTes CoNSTITUTION, AMENDMENT Four.

THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR

PERSONS, HOUSES. PAPERS, AND EFFECTS, AGAINST UNREA-

SONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED,

AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,

SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY

DESCRIBING THE PLACE TO BE’ SEARCHED, AND THE PERSONS

OR THINGS TO BE SEIZED.

QUESTIONS PRESENTED

SHOULD THE EXCLUSIONARY RULE BE MECHANICALLY

APPLIED TO EXCLUDE RFSPONDENT’S VOLUNTARY AND RELIABLE

STATEMENT, SOLELY BECAUSE HIS ARREST WAS IN TECHNICAL

VIOLATION OF A LATER ANNOUNCED ARREST WARRANT RE~

QUIREMENT, WHERE THE ARREST WAS BASED ON PROBABLE |

CAUSE, AND WHERE APPLICATION OF THE EXCLUSIONARY RULE

WILL NEITHER DETER ILLEGAL POLICE ACTION, NOR PRESERVE

JUDICIAL INTEGRITY?

SHOULD RESPONDENT’S STATEMENT BE DEEMED TAINTED

_ STATUTORY PROVISION INVOLVED

Pa. iG Pine » PA, ‘

Ann. tit. 1 (Sipe 938} ks STAT

R

ROR T eee CANS OF INSTITUTING PROCEEDINGS IN

1, RESPONDENT'S CONVICTION WAS REVERSED BY THE PENNSYL-

Ayia PREME COURT IN AN OPINION DATED NovemBer 18, CRIMINAL PROCEEDINGS IN COURT CASES SHALL BE

i . HOWEVER, THE OPINION WAS NOT RELEASED, NOR THE

QRDER OF THE COURT OFFICIALLY ENTERED, UNTIL NOVEMBER INSTITUTED BY:

: 1, A WRITTEN COMPLAINT: OR

2, AN ARREST WITHOUT A WARRANT WHEN THE STATEMENT OF THE CASE

OFFENSE IS A FELONY OR MISDEMEANOR COMMIT~-

TED IN THE PRESENCE OF THE POLICE OFFICER PRocepurAL History:

MAKING THE ARREST: OR

RESPONDENT, KEVIN WILLIAMS, WAS CHARGED IN THE

3, AN ARREST WITHOUT A WARRANT UPON

PROBABLE CAUSE WHEN THE OFFENSE IS A CourT OF COMMON PLEAS OF PHILADELPHIA COUNTY. AS OF

Y,

et oe SEPTEMBER Sessions, 1975, Nos. 1675 ann 1676, WITH

4, AN ARREST WITHOUT A WARRANT UPON

PROBABLE CAUSE WHEN THE OFFENSE IS A MURDER AND WITH VIOLATING THE UNIFORM FIREARM AcT,

MISDEMEANOR NOT COMMITTED IN THE PRESENCE

OF THE POLICE OFFICER MAKING THE ARREST, THESE CHARGES AROSE OUT OF THE SHOTGUN SLAYING OF

WHEN SUCH ARREST WITHOUT A WARRANT IS

SPECIFICALLY AUTHORIZED BY STATUTE. TWENTY-ONE YEAR OLD JAMES SPINKS.

A PRE-TRIAL MOTION TO SUPPRESS A WRITTEN STATE-

MENT WAS HEARD AND DENIED BY THE HONORABLE ARMAND DELLA

PorTA ON NovemBerR 21, 1975. TRIAL WAS HELD BEFORE

THE HONORABLE THEODORE B. SMITH AND A JURY ON MARCH

15 THROUGH MarcH 19, 1976, RESPONDENT WAS FOUND

GUILTY OF FIRST DEGREE MURDER. ON June 22, 1976,

FOLLOWING THE DENIAL OF POST-VERDICT MOTIONS. A

SENTENCE OF LIFE IMPRISONMENT WAS IMPOSED,

RESPONDENT FILED A DIRECT. APPEAL TO THE SUPREME

CourT OF PENNSYLVANIA WHICH ON NovemBer 18, 1979,

REVERSED RESPONDENT'S MURDER CONVICTION ON THE

GROUND THAT RESPONDENT’S WARRANTLESS ARREST IN HIS

HOME WAS VIOLATIVE OF THE FOURTH AMENDMENT OF THE

2. Britt No. 1676, CHARGING VIOLATION OF THE UNIFORM

FIREARMS ACT, WAS NOLLE PROSSED AT THE TIME OF TRIAL.

5

UNITED STATES CONSTITUTION, AND THAT HIS STATEMENT,

MADE AT THE STATION HOUSE ONE HALF HOUR AFTER HIS

ARREST, WAS TAINTED BY THE ARREST. COMMONWEALTH V,_

Winprams, __ Pa, __, 396 A.2p 1177 (1978),

(APPENDIX, INFRA AT 1A). AN APPLICATION FOR

REARGUMENT, WHICH WAS FILED BY THE COMMONWEALTH ON

DecemBer 12, 1978, wAS DENIED ON FeBruary 12, 1979.

FacTuAL History:

On SeptemBer 30, 1972, Between 9:00 P.M. AND

10:00 P.mM., THE DECEDENT, TWENTY-ONE YEAR OLD JAMES

SPINKS, WAS WALKING DOWN A PHILADELPHIA STREET IN

THE COMPANY OF JAMES NORWOOD. WITHOUT PROVOCATION,

RESPONDENT, KEVIN WILLIAMS, SHOT SPINKS FROM THE REAR

WITH A .22 CALIBER RIFLE.

RESPONDENT'S IDENTITY AS THE MURDERER OF JAMES

SPINKS REMAINED UNKNOWN TO THE POLICE FOR ALMOST THREE

YEARS, ON SepTemMBEeR 6. 1975, AN ACQUAINTANCE OF

RESPONDENT’S, SHELLY KNOX, WAS BEING INTERVIEWED BY

THE PHILADELPHIA POLICE AS A CONSEQUENCE OF HIS ARREST

FOR AN UNRELATED CRIME. DURING THE COURSE OF THIS

INTERVIEW, KNOX RELATED THAT ON OcToBerR 1, 1972, THE

DAY AFTER SPINKS’ MURDER, RESPONDENT TOLD HIM THAT

HE KILLED SPINKS WITH A .22 CALIBER RIFLE, AND THAT

James DAVIS WAS LATER ARRESTED FOR POSSESSION OF THE

RIFLE USED IN THE KILLING (N.T, Supp, Hre, 9-10),

THE INTERVIEWING DETECTIVE, ROBERT KANE. THEN

ASCERTAINED FROM POLICE RECORDS THAT JAMES DAVIS WAS

IN FACT ARRESTED ON THE DATE IN QUESTION, IN POSSESSION

OF A .22 CALIBER RIFLE, AND THAT DECEDENT DIED AS

RESULT OF A BULLET FIRED FROM A .22 CALIBER WEAPON

(N.T, Supp, Hre. 7-12).

On SepTemBer 7, 1975, THE MORNING FOLLOWING THE

STATEMENT MADE BY KNOX, DETECTIVE KANE ARRESTED RE-

SPONDENT AT HIS HOME AFTER A PEACEFUL CONSENTUAL ENTRY,

RESPONDENT WAS TAKEN TO THE POLICE ADMINISTRATION

BUILDING, AND WITHIN MOMENTS OF HIS ARRIVAL, HE WAS

ADVISED OF HIS CONSTITUTIONAL RIGHTS: RESPONDENT

WAIVED HIS RIGHTS AND MADE A STATEMENT IN WHICH HE

R_LATED THAT HE STOLE A RIFLE FROM THE TRUNK OF AN

AUTOMOBILE, AND THEN, WITHOUT ANY REASON, FIRED IT

AT TWO BOYS WALKING DOWN THE STREET, WHOM HE THOUGHT

HE DID NOT KNOW, HE STATED THAT THE NEXT DAY HE

LEARNED THAT HE WAS IN FACT ACQUAINTED WITH THE

BOY HE HAD KILLED (N.T, TrRrat 283-293),

3, A SUBSEQUENT BALLISTICS EXAMINATION CONDUCTED

AFTER RESPONDENT’S ARREST ESTABLISHED THAT THE FATAL

BULLET WAS FARED ROM THE GUN SEIZED FROM JAMES DAVIS

.|. Supp, HrRe. 11-12).

REASONS FOR GRANTING THE WRIT

. THE EXCLUSIONARY RULE SHOULD NOT BE

' MANDATORIALLY APPLIED TO ALL FOURTH

AMENDMENT VIOLATIONS, ESPECIALLY

WHERE, AS HERE, THE VIOLATION IS

TECHNICAL AND NOT BASED UPON KNOWING

POLICE MISCONDUCT.

IN THIS CASE, THE PENNSYLVANIA SupREME CouRT HELD

THAT THE FouRTH AMENDMENT TO THE UNiTED States ConsTrTu-

TION REQUIRES, IN THE ABSENCE OF EXIGENT CIRCUMSTANCES,

THAT LAW ENFORCEMENT OFFICIALS OBTAIN AN ARREST WARRANT

PRIOR TO MAKING A PROBABLE CAUSE FELONY ARREST IN A HOME,

Tu1s CouRT HAS NOTED PROBABLE JURISDICTION IN TWO OTHER

CASES RAISING THIS Issue, PAyTON vy. i/ew York, RipDICK Vv.

tlew York, 45 N.Y.2p 300, 380 N.E. 2p 224 (1978), Pros.

yurts. NoTeD, 47 U.S.L.W. 3408 (1978) (ios. 78-5420,

78-5421). ALTHOUGH THE COMMONWEALTH SUBMITS THAT AN ARREST

WARRANT IS NOT CONSTITUTIONALLY MANDATED UNDER SUCH CIR-

CUMSTANCES (see ArcumMENT [II INFRA), EQUALLY IMPORTANT

QUESTIONS ARE PRESENTED IN THE INSTANT CASE, WHICH THIS

CouRT HAS NEVER HAD THE OPPORTUNITY TO DIRECTLY CONSIDER.

1

1, THE PENNSYLVANIA: Supreme CouRT IN rs HOLDING RELIED

RTH AMENDMENT OF THE UNITED STATES

Sel ToTion. CONMONWEALTH VY. WILL LAMS. PPENDIX AT 14,

THE FIRST IS WHETHER, EVEN ASSUMING A TECHNICAL FOURTH

AMENDMENT VIOLATION, THE EXCL'JSIONARY RULE SHOULD BE

MECHANICALLY APPLIED TO EXCLUDE RELIABLE AND PROBATIVE

EVIDENCE, OBTAINED BY LAW ENFORCEMENT OFFICERS ACTING

REASONABLY AND IN GOOD FAITH, WHERE EXCLUSION OF THE

EVIDENCE WILL NEITHER DETER UNLAWFUL POLICE ACTIVITY,

NOR OFFEND THE CONCEPT OF JUDICIAL INTEGRITY,

WHATEVER BENEFITS THE EXCLUSIONARY RULE HAS

IN DETERRING LAW ENFORCEMENT OFFICERS FROM ACTING IN

FLAGRANT VIOLATION OF THE CONSTITUTION, OR ASSURING

THAT THE COURTS DO NOT APPEAR TO BE COLLABORATING IN

ILLEGAL POLICE CONDUCT, NEITHER OF THESE GOALS IS

SERVED WHERE THE POLICE AGT IN FULL COMPLIANCE WITH

EXISTING LEGAL STANDARDS. UNITED STATES Vv, JANIS,

428 U.S. 433, 454, n.28, 458, n.35, 96S. Cr. 3021,

3032, n.28, 3034, n.35, REHEARING DENTED, 429 U.S,

874, 97 S. Cr. 196 (1976); Srowe v. Powert, 428

U.S. 465, 485, n.23, 96 S. Cr. 3037, 3048 (1976),

REHEARING DENIED, 429 U.S. 874, 97 S. Cr. 197 (1976);

UNITED States v, Perrier, 422 U.S, 551, 538, 95 S. Cr,

2. IN THIS CASE, Le ARRESTING OFFICERS ACTED IN FULL

COMPLIANCE WITH _THE RULES OF CRIMINAL, ROCEDURE PROM-

ULGATED BY THE PENNSYLVANIA SUPREME CouRT, AS WELL AS

EXISTING CASE LAWS, AU HOR IZING WARRANTL SS ARRESTS

ES. . 101;

U

OR FELO » LRIM, Re Slee

.. 1978): ns A,

I: Ho ht: of) Bir eae stad

LAW OR a STATE rg ALL WAS FOUND IN THIS CASE

BY THE PENNSYLVANIA SUPREME COURT.

9

2313, 2517-2318 (1975). Tue EXCLUSIONARY ,RULE IS NOT

* PERSONAL RIGHT OF A CRIMINAL DEFENDANT, BUT IT IS

A JUDICIALLY CREATED REMEDY, FORMULATED BY THIS Court

TO DETER FLAGRANT VIOLATIONS OF THE CONSTITUTION,

STONE Vv. PoweLL, suPRA AT 482-486, 96 S. Cr. at 3046-

3049. IT IS A DRASTIC DEVICE WITH TREMENDOUS SOCIAL

COSTS, AS THE RULE, OF NECESSITY, ALLOWS COUNTLESS

GUILTY DEFENDANTS TO GO UNPUNISHED, AND KEEPS RE-

LIABLE AND PROBATIVE EVIDENCE FROM THE FACTFINDER,

Unitep STATES v. JANIS, suPRA AT 448-449, 96 S, Cr,

aT 3029-3030; Stone v. PoweLt, supRA aT 487-489, 96

S. Cr. at 3049-3050, SounD ADMINISTRATION OF JUSTICE

3, EVEN ASSUMING THAT AN ARREST WARRANT IS CONSTITU-

TIONALLY MANDATED, GIVING THE RESPONDENT THE BENEFIT

OF THE RULE CHANGE IN HIS CASE, DOES NOT AUTOMATICALLY

RESULT IN REVERSAL OF HIS MURDER CONVICTION. ONCE

RESPONDENT ’S ARREST IS DECLARED “ILLEGAL UNDER THE

RULE CHANGE, CONSIDERATION MUST THEN BE GIVEN TO WHETIIER

THE EXCLUSIONARY RULE SHOULD BE [NVOKED, AND IF SO,

WHAT EVIDENCE IS TAINTED BY THE “ILLEGALITY’. A, TyousH

Gt: Se it arin Sait TER EOE

U.S. . so S$. We APPLIED BOTH THE RULE

CHANGE AND THE EXCLUSIONARY RULE TO EIDA-SANCHEZ,

THAT CASE IS NOT RELEVANT HERE, BECAUSE_AS THE pur

UBSEQUENTLY NOTED IN

TS OA Sa RE RE "7 —

GOVERNMENT IN NEVER ARGUED THAT THE

EXCLUSIONARY RULE SHOULD NOT APPLY.

4, In flape THIS CouRT SOUGHT

TO CLOSE THE ONLY COURTROOM DOOR

REMAINING OPEN TO EVIDENCE SECURED

BY OFFICIAL LAWLESSNESS IN FLAGRANT

AB'ISE OF THE LONSTITUTION,

Jape Y Dt, 17 U.S. 643, 654-655, 81 S. Cr. 1634,

10

MANDATES THAT THE EXCLUSIONARY RULE BE INVOKED ONLY

WHERE IT WILL SERVE ITS STATED PURPOSE, PROBATIVE

AND RELIABLE EVIDENCE SHOULD BE WITHHELD FROM THE

FACTFINDER ONLY WHERE POLICE OFFICERS ACT IN FLAGRANT

DISREGARD OF CONSTITUTIONAL REQUIREMENTS. INADVER-

TANT ERRORS SHOULD NOT BE TREATED THE SAME AS A

FLAGRANT VIOLATION OF RIGHTS. ALL TOO OFTEN FOURTH

AMENDMENT DECISIONS HINGE ON COMPLEX LEGAL ANALYSES,

WITH COURTS THEMSELVES SHARPLY DIVIDED OVER THE

APPROPRIATE CONSTITUTIONAL RESULT. WHILE FEW LAW-

YERS CAN CLAIM TRUE EXPERTISE IN THE FOURTH AMEND-

MENT, WE EXPECT POLICE OFFICERS, FACED WITH SPLIT

SECOND DECISIONS, TO MASTER IT. SUCH AN EXPECTATION

IS CLEARLY UNREASONABLE.

As THIS CouRT HAS RECOGNIZED,

[A] PPLICATION OF THE [E] XCLUSIONARY

RULE DEFLECTS THE TRUTHFINDING

ROCESS AND OFTEN FREES THE GUILTY.

HE DISPARITY IN PARTICULAR CASES

See (prota y POH ELL, SUPRA 540, 96 S,

. Al 3573 ( HITE, J., DISSENTING) (i ReLy WHEN

THIS COURT DIVIDES FIVE TO FOUR ON ISSUES OF PROBABLE

CAUSE, IT IS NOT TENABLE TO CONCLUDE THAT THE OFFICER

WAS AT GAULT OR ACTED UNRFASONABLY IN MAKING THE

FL hos 4. ¢ >, U7, . UT ; Nd,

1) (Burger, Jip DISSENTING) (OBSERVING THAT

WHERE THIS COURT REVERSES, BY A NARROW MARGIN, DF

CISIONS OF STATE AND FEDERAL JUDGES, AS MUCH AS 10

YEARS AFTER THE FACT,” IT IS DIFFICULT TO CONCLUDE

THAT THE POLICEMAN HAS VIOLATED SOME RULE THAT HE ss

SHOULD HAVE KNOWN WAS A RESTRICTION ON HIS AUTHORITY”, )

il

BETWEEN THE ERROR COMMITTED BY

THE POLICE OFFICER AND THE WIND-

FALL AFFORDED A GUILTY DEFENDANT

BY APPLICATION OF THE RULE IS

CONTRARY TO THE IDEA OF PROPOR-

TIONALITY THAT IS ESSENT MA}, TO

THE CONCEPT OF JUSTICE. [FOOT-

NOTE 2916 THUS, ALTHOUGH THE

RULE IS THOUGHT TO DETER UNLAW-

FULE POLICE ACTIVITY IN PART

THROUGH THE NURTURING OF RESPECT

FOR FOURTH AMENDMENT VALUES, IF

APPLIED INDISCRIMINATELY IT MAY

P WELL HAVE THE OPPOSITE EFFECT OF

GENERATING DISRESPECT FOR THE LAW

AND ADMINISTRATION OF JUSTICE,

STONE Vv. PowELL, supra AT 490-491, 96 S. Ct, at 3050-3051.

REVIEW IS REQUESTED BECAUSE THE EXCLUSION OF

EVIDENCE SHOULD NOT BE COMPELLED WHEN THE FOURTH AMEND~-

MENT VIOLATION IS TECHNICAL AND THE VIOLATION COULD NOT

6. THe Court NOTED:

29, MANY OF THE PROPOSALS FOR

MODIFICATION OF THE SCOPE OF THE

EXCLUSIONARY RULE RECOGNIZE AT LEAST

IMPLICITLY THE ROLE OF PROPORTION-

ALITY IN THE CRIMINAL JUSTICE SYSTEM

AND THE POTENTIAL VALUE OF ESTABLISHING

A DIRECT RELATIONSHIP BETWEEN THE NATURE

OF THE VIOLATION AND THE REF ISION WHETHER

INVOK THE RULE. SEE De wef JODEL

DE RE- A NM ery

1995, 82002, aT 181-183 Csupéran~

TiaL ASDLATI QS.) . ERIENDLY, BENCH-

MARKS ZbU- 467) (EVEN AT TRIAL,

EXCLUSION SHOULD BE LIMITED TO

THE FRUIT OF ACTIVITY

A Ne cpeeg IGMORE,

thellaucHron Ra aes

PEONE SS oee SUPRA at 490-491, 96 §. Cr. at 3050-3051

REPT purPojee Seok gulceR. States to Caccat

12

REASONABLY BE ANTICIPATED BY A POLICE OFFICER, THIS WILL

NOT DEPRECIATE THE IMPORTANCE OF THE FOURTH AMENDMENT, ”

RATHER IT WILL SIMPLY RECOGNIZE THAT INADVERTANT AND

TECHNICAL ERRORS BY LAW ENFORCEMENT OFFICIALS DO NOT

ENTITLE A DEFENDANT TO THE DRASTIC RELIEF OF EXCLUDING

PROBATIVE AND RELIABLE EVIDENCE OF HIS GUILT,

7, IN SETTING THE LIMITS OF THE EXCLUSIONARY RULE, THIS

COURT HAS RECENTLY APPLIED A BALANCING APPROACH, le rGH=-

ING THE DETERRENT VALUE OF EXTENDING THE RULE AGAINST

THE SOCIAL COSTS OF FREEING GUILTY DEFENDANTS THROUGH

HE EXCLUSION OF PROBATIVE EVIDENCE. SEE, £,6 rreD

GATES Y. tecceL inn SUPRA, OO SCT. AT 1082 COED ENG

TO APPLY THE EXCLUSIONARY RULE TO EXCLUDE THE TESTIMONY

OF A WITNESS FOUND AS A RESULT OF AN ILLEGAL SEARCH, BECAUSE

THE SOCIAL COST OF PERMANENTLY SILENCING THE WITNESS "IS

TOO GREAT FOR AN EVEN-HANDED SYSTEM OF LAW ENFORCEMENT TO

BEAR IN ORDER TO SECURE . . , A SPECULATIVE AND VERY LIKELY

NEGLIGIBLE DETERRENT EFFECT. “);

SUPRA AT fis 454 a S. Cr. at 3031- OLDING THAT THE RULE

WILL NOT BE EXTENDED TO A FEDERAL CIVIL PROCEEDING TO

EXCLUDE EVIDENCE OBTAINED BY STATE QFFIGERS WHERE THE

SUPRA AT 495-406, O68, CT. AT INA dies Chon THAT

EXCLUSIONARY RULE IS NOT APPLICABLE IN HABEAS REVIEW

F STATE CONVICTIONS WHERE DETERRENT EFF OYLD _BE

Tarainac?) UNiTsp STATES v. CALANDSA, igh yee 338,

g4S, Ct. 613 HOLDING THAT EXCLUSIONARY RULE

is NOT APPLICABLE TO GRAND JURY PROCEERINGS TO ACHIEVE

OATES, SE Ne egg SE et $B tha CBECLIN Wa

TO EXTEND APPLICATION OF THE EXCLUSIONARY RULE TO

SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF A CO-

DEFENDANT S RIGHTS, BECAUSE THE ADDITIONAL DETERRENT

VALUE OF SUCH EXTENSION WOULD NOT JUSTIFY THE SUBSTAN-

TIAL COST 5: EXCLUDING RELEVANT ites SAT qHE BACT

‘ ‘ 4

BANRER ) Ef

x 2 ( HOLDING THAT EXCLUSIONARY RULE

DOES NOT BAR FEDERAL PROSECUTORS FROM USING ILLEGALLY

OBTAINED EVIDENCE TO IMPEACH A DEFENDANT S PERJURIOUS

TESTIMONY AT TRIAL),

13

II, EVEN IF THE EXCLUSIONARY RULE IS

APPLICABLE, RESPONDENT'S VOLUNTARY

STATEMENT, MADE AT A STATION HOUSE

AFTER HIS ARREST, SHOULD NOT BE

DEEMED TAINTED BY THE ABSENCE OF

AN ARREST WARRANT, WHERE THE ARREST

WAS SUPPORTED BY MORE THAN AMPLE

PROBABLE CAUSE, AND WAS NOT EFFECT-

UATED IN A MANNER CALCULATED TO

CAUSE SURPRISE, FRIGHT AND CONFUSION,

OR IN AN ATTEMPT TO DEVELOP INCRIM—

INATING EVIDENCE TO JUSTIFY THE ARREST,

WHETHER OR NOT THE EXCLUSIONARY RULE IS APPLICABLE,

THERE IS NO NEXUS IN THIS CASE BETWEEN RESPONDENT'S ARREST

AND STATEMENT. IT IS WELL-SETTLED THAT A STATEMENT MADE

AFTER AN ILLEGAL ARREST IS NOT PER SE INADMISSIBLE. BROWN

vy. Iipinors, 422 U.S. 590, 95 S. Cr, 2254 (1975), It ts

ONLY WHEN THE STATEMENT IS CAUSALLY RELATED TO THE INVASION

OF DEFENDANT’S RIGHTS THAT THE STATEMENT WILL BE DEEMED

TAINTED BY THE ILLEGALITY. HERE, THERE IS NO CAUSAL RE-

LATIONSHIP, UNLIKE THE TYPICAL ILLEGAL ARREST CASE, RE-

SPONDENT HERE WAS NOT, UPON LESS THAN PROBABLE CAUSE, DE-

PRIVED OF HIS FREEDOM OF ACTION, AND THEN ILLEGALLY DETAINED

IN AN ATTEMPT TO DEVELOP INCRIMINATING EVIDENCE TO JUSTIFY

THE ARREST, RESPONDENT’S ARREST WAS SUPPORTED BY MORE THAN

SUFFICIENT PROBABLE CAUSE, AND WAS NOT EFFECTUATED IN A

MANNER “CALCULATED TO CAUSE SURPRISE, FRIGHT AND CONFUSION.”

Compare BRowN v. [itinors, supra AT 605, 95 S, Cr. at

Tr

2262-2263. HERE THE POLICE KNEW THAT RESPONDENT HAD

ADMITTED THE MURDER BEFORE THEY ARRESTED HIM, (Il,T,

Supp. HRe, 9-10).

In BROWN THIS COURT ARTICULATED FOUR FACTORS

THAT MUST BE SCRUTINIZED IN DETERMINING WHETHER A NEXUS

EXISTS BETWEEN THE CHALLENGED EVIDENCE AND THE INITIAL

ILLEGALITY, THE COURT NOTED:

THE QUESTION WHETHER A CON-

FESSION IS THE PRODUCT OF A FREE

WILL UNDER \YONG MUST BE

case, ON THE FACTS OF EACH

POSITIVE, HE WORKINGS OF THE

HUMAN MIND ARE TOO COMPLEX AND

THE POSSIBILITIES OF MISCONDUCT

TOO DIVERSE, ga PROTECTION

OF THE FOURTH AMENDMENT TO TURN

ay SUCH A TALISMANIC TEST, HE

WARNINGS ARE AN IMPORT-

ANT FACTOR, TO BE SURE, IN DE-

TERMINING WHETHER THE CONFESSION

TS OBTAINED BY EXPLOITATION OR

AND ILLEGAL ARREST, UT THEY ARE

NOT THE ONLY FACTOR TO BE CON-

SIDERED. HE TEMPORAL PROXIMITY

OF THE ARREST AND THE CONFESSION,

THE PRESENCE OF INTERVENING CIR-

CUMSTANCES . . .«, AND. PARTICULARLY,

THE PURPOSE AND FLAGRANCY OF THE

ARE ALL RELEVANT

+ + + « THE VOLUNTARINESS OF THE

STATEMENT IS A THRESHOLD REQUIREMENT,

422 U.S. at 603-604, 95 S, Cr. AT 2261, 2262 (CEmMPHASIS

SUPPLIED) (FOOTNOTES OMITTED),

15

NONETHELESS, THE PENNSYLVANIA SupREME CourT

IN THIS CASE CONSIDERED BUT ONE FACTOR, I.€., THE

TEMPORAL PROXIMITY OF RESPONDENT’S ARREST AND STATE-

MENT, AND SUMMARILY CONCLUDED THAT BECAUSE RESPOND-

ENT MADE A STATEMENT WITHIN ONE-HALF HOUR OF HIS

ARRIVAL AT THE POLICE ADMINISTRATION BUILDING, HIS

STATEMENT WAS TAINTED BY HIS ARREST. BY PROCEEDING

AS THOUGH TEMPORAL PROXIMITY WAS CONTROLLING, THE

COURT INCORRECTLY APPLIED THE TAINT TEST OF BROWN,

AND IGNORED THE VOLUNTARINESS OF RESPONDENT'S STATE-

MENT, THE PRESENCE OF INTERVENING ccacuemruse:”

AND THE FACT THAT RESPONDENT WAS FULLY ADVISED OF

HIS CONSTITUTIONAL RIGHTS. [ORE IMPORTANTLY, THE

COURT GAVE NO CONSIDERATION TO THE MOST CRITICAL

FACTOR OF ALL, THE “PURPOSE AND FLAGRANCY OF THE

OFFICIAL MISCONDUCT”; AS INDICATED ABOVE, THERE

WAS NQ OFFICIAL MISCONDUCT IN THIS CASE.

THE POINT AT WHICH TAINT WILL DISSIPATE IS

DIRECTLY DEPENDENT UPON THE NATURE OF THE FOURTH

AMENDMENT VIOLATION, THAT IS, THE OFFICIAL MISCONDUCT,

3, INTERVENING CIRCUMSTANCES CAN BE SEEN IN REVIEWING

THE PREFATORY REMARKS OF THE DETECTIVE WHO INTERVIEWED

RESPONDENT. AFTER RESPONDENT WAS ADVISED OF AND WAIVED

HIS (LLRANDA RIGHTS, DETECTIVE KANE TOLD HIM THAT THE

POLICE KNEW THAT HE WAS RESPONSIBLE FOR THE MURDER,

HE DETECTIVE TOLD RESPONDENT THAT HE KNEW WHAT WENT

DOWN”, AND THAT IF HE WERE GOING TO MAKE A STATEMENT,

THERE WAS NO SENSE IN FABRICATING A STORY. RESPONDENT

THEN PROCEED D TO MAKE A FULL INCULPATORY STATEMENT

Gi.?. Supp, Hre. 22-25),

16

CIRCUMSTANCES REQUIRING THE STRONGEST EVIDENCE OF

ATTENUATION OF TAINT ARE CASES WHERE LAW ENFORCEMENT

OFFICIALS ACT IN FLAGRANT DISREGARD OF THE FOURTH

AMENDMENT. BROWN V. ILLINOIS, suPRA AT 610-612, 95

S. Ct, at 2265-2266 (PoweLt AND REHNQUIST, J., CONCURRING).

AT THE OTHER END OF THE SPECTRUM WOULD BE CASES WHERE

THE POLICE IN GOOD FAITH RELY UPON A WARRANT THAT IS

TECHNICALLY INVALID. ID. See ALSO BIVINS, SUPRA AT

418-420, 91S. Cr. at 2015-2017 (Burcer, C.J., pdis-

SENTING) (NOTING THAT THE EXCLUSIONARY RULE TREATS

VASTLY DISSIMILAR CASES AS THOUGH THEY WERE THE SAME).

INDEED, THE INSTANT CASE IS EVEN MORE COMPELLING, IN

THAT THE POLICE ACTED IN GOOD FAITH RELIANCE UPON EX-

ISTING CASE LAW AND A COURT CREATED RULE OF PROCEDURE

WHICH WAS ONLY LATER INVALIDATED, THESE CIRCUMSTANCES

ALONE NEGATE THE EXISTENCE OF ANY TAINT,

THE COMMONWEALTH RESPECTFULLY REQUESTS THE

GRANT OF CERTIORARI TO DEMONSTRATE THAT EVEN IF THE

EXCLUSIONARY RULE IS APPLICABLE WHERE THE POLICE ACT

IN GOOD FAITH, FAILURE OF THE POLICE TO OBTAIN A PIECE

OF PAPER, THAT WAS NOT REQUIRED AT THE TIME, DID NOT

TAINT RESPONDENT'S VOLUNTARY STATEMENT AS A MATTER OF

FEDERAL CONSTITUTIONAL LAW,

dtl, Teg Four Ty AMENDMENT OF THE UNITED

TATES CONSTITUTION DOES NOT PROHIBIT A

PEACEFUL PROBABLE CAUSE ARREST OF A FELON

IN HIS HOME, ,

THE PENNSYLVANIA SUPREME COURT, WITHOUT ANALYSIS

OF EITHER THE LANGUAGE OR PURPOSE OF THE FouRTH AMEND~

MENT, HELD THAT THE FOURTH AMENDMENT OF THE UNITED

STATES CONSTITUTION MANDATES THAT LAW ENFORCEMENT

OFFICIALS, IN THE ABSENCE OF EXIGENT CIRCUMSTANCES,

OBTAIN AN ARREST WARRANT PRIOR TO MAKING A FELONY

ARREST IN A DWELLING, THE COURT REVERSED RESPONDENT'S

MURDER CONVICTION ON THE GROUND THAT RESPONDENT’ S

STATEMENT MADE AFTER A PROBABLE CAUSE, PEACEFUL DAYTIME

ARREST IN HIS HOME, FOLLOWING A CONSENSUAL ENTRY.

TAINTED HIS OTHERWISE VOLUNTARY STATEMENT.

THIS COURT HAS NEVER INVALIDATED AN ARREST BASED

UPON PROBABLE CAUSE SOLELY BECAUSE THE OFFICERS FAILED

TO SECURE AN ARREST WARRANT, UNITED STATES v, WATSON.

423 U.S, 411, 417-418, 96 S.Ct, 820, 824-825 (1976),

REHEARING DENIED ,424 U.S, 979, 96 S.Ct. 1488 (1976):

. PENNSYLVANIA’S LOWER APPELLATE COURT, THE SUPERIOR

URT, IN A PLURALITY OPINION, RECENTLY NOTED THAT HAD

THE ISsug NOT ALREADY BEEN RESOLVED BY THE PENNSYLVANIA

UPREME COURT IN THE INSTANT CASE, THE COURT WOULD

HAVE HELD THAT AN ARREST WARRANT IS NOT CONSTITUTION-

ALLY REQUIRED FOR AN ARREST ENTRY, AND THE COURT WOULD

HAVE ADOPTED THE AMERICAN LAW INSTITUTE’S RECOMMENDA-

TION REQUIRING ARREST WARRANTS ONLY FOR_NIGHTTIME

DGER, ___ PA, SUPERIOR CT,

{)

OFFICIAL DRAFT,

1%

GERSTEIN V. PucH, 420 U.S. 103, 115, 95 S.Cr, 854,

864 (1975),

THE COURT HAS ON OCCASION, HOWEVER, OBSERVED

THAT THE ISSUE OF “WHETHER AND UNDER WHAT CIRCUMSTANCES

AN OFFICER MAY ENTER A SUSPECT, HOME TO MAKE A WAR-

RANTLESS ARREST” IS UNSETTLED, GERSTEIN V, PUGH.

supra AT 113, 95 S.CT. at 863 nN. 13; UNITED STATES

v, WATSON, SUPRA AT 418 N.6, 96 S.CT. AT 825, AND THE

CouURT HAS RECENTLY NOTED PROBABLE JURISDICTION IN TWO

MB Ae daea HE Ss, eS

Uh 1 , THE COURT IN A PLURALITY OPINION

DEALING WITH A NIGHTTIME ENTRY NOTED THE DICHOTOMY

THAT EXISTS BETWEEN WARRANTLESS ENTRIES ie3"h*e

s a AT

Te A ae eae

Uso, 91 S-Cr. At Seite COURT STATED THAT:

THE _CASE. OF ,

387°O8§ “bone BF Sitr. Ibtz (19679,

WHERE THE COURT ELABORATED A “HOT

PURSUIT” JUSTIFICATION FOR THE POLICE

ENTRY INTO THE DEFENDANT S HOUSE

WITHOUT A WARRANT FOR HIS ARREST,

CERTAINLY STANDS BY NEGATIVE IMPLICA-

TION FOR THE PROPOSITION THAT AN

ARREST WARRANT IS REQUIRED IN THE

ABSENCE OF EXIGENT CIRCUMSTANCES.

403 U.S. at 480-481, 91 S.Ct. at 2045,

4 Kev GALLEORNLS 374 U.S, 23, 83

$.Cr. Ieee C1063), TRE COURT UPHELD AN UNANNOUNCED

AND peng hn gg ENTRY TO EFFECT AN ARREST. AND NO

MEMBER OF THE LOURT OBJECTED TO THE ENTRY. BUT ONLY

TO THE LACK OF PRIOR ANNOUNCEMENT.

ly

CASES UPHOLDING THE CONSTITUTIONALITY OF WARRANTLESS

ARREST ENTRIES. PayTON v, New YORK, SUPRA.

THE COMMONWEALTH RESPECTFULLY REQUESTS THE GRANT

OF CERTIORARI TO DEMONSTRATE THAT NEITHER THE PURPOSE

NOR THE HISTORY OF THE FOURTH AMENDMENT JUSTIFIES THE

PENNSYLVANIA SUPREME CouRT’S HOLDING. THAT RESPON-

DENT’S PEACEFUL, DAYTIME ARREST FOR MURDER, AFTER A

CONSENSUAL ENTRY TO HIS HOME, WAS VIOLATIVE OF THE

FourTH AMENDMENT. EVEN IF A MORE GENERALIZED WARRANT

REQUIREMENT IS IMPOSED, IT SHOULD NOT BE INVOKED UNDER

THE CIRCUMSTANCES PRESENTED HERE.

20

CONCLUS LON

Fork THE FOREGOING REASONS, THE COMMONWEALTH OF

PENNSYLVANIA RESPECTFULLY REQUESTS THAT A WRIT OF

CERTIORARI ISSUE TO REVIEW THE DECISION BELOW.

RESPECTFULLY SUBMITTED,

AR ANNE E, COX

ASSISTANT DISTRICT ATTORNEY

RLEVEN if GOLDBLATT

and ISTRICT ATTORNEY

FOWARD G, RENDELL

ISTRICT ATTORNEY

2400 Centre Sayare West

Sikvaietenta, PENNSYLVANIA 19102

21

1A

AppenDIx A

{

IN THE SUPRETE court OF PENNSYLVANIA

TERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA

Ve

0. ee

APPEAL FROM JUDGMENT

KEVIN WILLIAMS, APPELLANT IMINAL, 0

Seprereen sessi No; 1675

OPINION OF THE COURT

O’BRIEN, J.

APPELLANT, KEVIN WILLIAMS, WAS CONVICTED OF MUR-

DER OF THE FIRST DEGREE IN THE CourT OF ComMON PLEAS

OF PHILADELPHIA, AND SENTENCED TO LIFE IMPRISONMENT.

HE APPEALS THE JUDGMENT OF SENTENCE,

APPELLANT WAS CHARGED IN CONNECTION WITH THE

DEATH OF JAMES SPINKS, THE VICTIM, ACCOMPANIED BY A

FRIEND, JAMES NORWOOD, WAS WALKING SOUTHWARD ON THE

EAST SIDE OF 32ND STREET IN PHILADELPHIA BETWEEN 9:00

and 10:00 p.m. on SeptemBer 30, 1972. JusT AFTER THEY

CROSSED Berks STREET, SPINKS WAS FATALLY SHOT FROM

THE REAR. A .22 CALIBER BULLET ENTERED THE RIGHT BACK,

PASSED THROUGH THE LIVER, TRAVELED AT AN ANGLE THROUGH

tr ENTENGE OF THE

URT 0

R oF :

2A

THE MIDDLE OF THE BODY, AND LODGED IN THE LEFT CHEST,

On OctoperR 14, 1973, A RIFLE WAS THROWN FROM A

CAR BEING CHASED BY PHILADELPHIA POLICE. THE CAR WAS

OCCUPIED BY FOUR INDIVIDUALS, INCLUDING ONE JAmes Davis,

ALL OF WHOM WERE ARRESTED, BALLISTICS EXPERTS DETER-

MINED THAT THE RIFLE WAS THE ONE USED TO SHOOT SPINKS,

APPELLANT DID NOT BECOME A SUSPECT IN THE SHOOTING

UNTIL SEPTEMBER 5, 1975, WHEN SHELLY KNOX, WHO WAS

BEING QUESTIONED ABOUT THE UNRELATED KILLING OF A

STOREKEEPER, SAID THAT APPELLANT TOLD HIM ON OCTOBER

1, 1972, THAT HE HAD SHOT SPINKS. KNOX SAID THAT JAMES

DAVIS WAS LATER ARRESTED WITH THE WEAPON USED TO MURDER

SPINKS, APPELLANT WAS ARRESTED AT HIS HOME WITHOUT

A WARRANT AT 6:35 A.M. ON SEPTEMBER 6, 1975, HE Gave

A STATEMENT TO THE POLICE IN WHICH HE SAID THAT HE

BROKE INTO A CAR ON THE NIGHT OF THE SHOOTING AND TOOK

A .22 CALIBER RIFLE FROM WHICH HE FIRED A SHOT TOWARD

SPINKS AND NorwoopD, HE GAVE THE RIFLE AWAY THE NEXT

DAY. HE SAID THAT HE DID NOT KNOW WHO SPINKS AND

NORWOOD WERE AT THE TIME OF THE SHOOTING, BUT LEARNED

THE NEXT DAY THAT THE DECEDENT WAS SOMEONE KNOWN TO HIM

AS “CHUCKIE,” AND THAT HE HAD KNOWN THE DECEDENT FOR

APPROXIMATELY TWO YEARS. APPELLANT LATER REPUDIATED

THE STATEMENT AND ATTEMPTED TO HAVE IT SUPPRESSED.

3A

HE TESTIFIED AT TRIAL AND DENIED INVOLVEMENT IN THE

SHOOTING, APPELLANT WAS EIGHTEEN AT THE TIME OF THE

ARREST AND FIFTEEN AT THE TIME OF THE SHOOTING.

APPELLANT ARGUES THAT THE EVIDENCE DOES NOT

SUPPORT THE VERDICT. HE CLAIMS THAT NEITHER INTENT

TO KILL NOR MALICE CAN PROPERLY BE INFERRED FROM THE

FIRING OF A SHOT FROM A DISTANCE TOWARD PEOPLE APPEL-

LANT DID NOT KNOW, THEREFORE, IN APPELLANT’S VIEW,

THE DEGREE OF GUILT COULD NOT RISE HIGHER THAN VOLUNTARY

OR INVOLUNTARY MANSLAUGHTER, HE CLAIMS TO BE ENTITLED

TO A DISCHARGE ON THE BASIS THAT THE STATUTE OF LIMITA-

TIONS BARRED A MANSLAUGHTER PROSECUTION. WE DO NOT

ACCEPT APPELLANT’S CLAIM. WE REVIEW THE EVIDENCE IN

LIGHT OF THE STANDARD SET FORTH IN COMMONWEALTH V.

Rose, 463 Pa. 264, 344 A.2p 824 (1975), WHERE WE STATED

THAT:

“THE TEST OF SUFFICIENCY OF THE

EVIDENCE IS WHETHER, VIEWING THE EVI-

DENCE IN THE LIGHT MOST FAVORABLE TO

THE COMMONWEALTH AND DRAWING THE PROPER

INFERENCES FAVORABLE TO THE COMMON-

WEALTH, THE TRIER OF FACT COULD REASON-

ABLY HAVE FOUND THAT ALL OF THE ELEMENTS

OF THE CRIME HAD BEEN ESTABLISHED BEYOND

A REASONABLE DOUBT.... MOREOVER, IT IS

THE PROVINCE OF THE TRIER OF FACT TO

PASS UPON THE CREDIBILITY OF WITNESSES

AND THE WEIGHT TO BE ACCORDED THE EVI-

DENCE PRODUCED.... IHE FACT-FINDER IS

FREE TO BELIEVE ALL) PART, OR NONE OF

THE EVIDENCE....”. (CITATIONS OMITTED.)

4A

IT MAY BE INFERRED FROM THE EVIDENCE THAT APPEL-

LANT SHOT THE DECEDENT IN A VITAL PART OF THE BODY,

ALLOWING AN INFERENCE OF MALICE AND PREMEDITATION,

ComMONWEALTH v. O’SeaRo, 466 Pa, 224 352 A.2p 30

(1976), THE INFERENCE MAY BE DRAWN EVEN IF APPELLANT

SHOT THE DECEDENT FROM A DISTANCE AND DID NOT KNOW

HIM, SEE COMMONWEALTH v. Kampo, __ Pa, __, __ A.2p

__ (FILED Octoper 5, 1978), APPELLANT’S ARGUMENT

THAT HE SHOULD BE DISCHARGED ON THE BASIS OF THE

STATUTE OF. LIMITATIONS FOR VOLUNTARY MANSLAUGHTER IS

MERITLESS,

APPELLANT NEXT ARGUES THAT THE COURT ERRED IN

REFUSING TO SUPPRESS HIS CONFESSION. HE CLAIMS THAT

SINCE HE WAS ARRESTED IN HIS HOUSE WITHOUT A WARRANT

IN THE ABSENCE OF EXIGENT CIRCUMSTANCES, THE ARREST

WAS, THEREFORE, VIOLATIVE OF THE FOURTH AMENDMENT PRO-

TECTIONS AGAINST UNREASONABLE SEARCH AND SEIZURE. HE

FURTHER ARGUES THAT THE CONFESSION WAS A PRODUCT OF

THE ILLEGAL ARREST, THEREBY RENDERING IT INADMISSIBLE,

WHILE WE HAVE NEVER BEEN CONFRONTED WITH THE

ISSUE OF WHETHER AN ARREST WARRANT IS REQUIRED TO

EFFECTUATE A VALID ARREST INSIDE THE ARRESTEE’S

5A

1

HOME, SAID ISSUE HAS BEEN CAREFULLY CONSIDERED IN

THE VARIOUS CIRCUIT COURTS, THERE, VARIOUS CASES HAVE

HELD THAT BECAUSE OF THE FOURTH AMENDMENT AND THE SUB-

STANTIAL EXPECTATION OF PRIVACY IN ONE’S HOME, AN

ARREST WARRANT IS REQUIRED TO VALIDLY ARREST SOMEONE

IN HIS HOME UNLESS EXIGENT CIRCUMSTANCES EXIST TO

JUSTIFY THE WARRANTLESS INTRUSION. UNITED STATES

y, Reep, 572 F.2p 412 (2p Cir. 1978); Untren States

vy. SHve, 492 F.2p 886 (61H Crr. 1974); Dorman v. UNITED

States, 435 F.2p 385 (D.C. Crr. 1970); anp Vance v.

NorTH Carouina, 432 F,2p 984 (4tH Cir, 1970),

As tHE UntTep States Supreme CourT STATED IN

UniTep States v, Martinez-Fuerte, 428 U.S, 543, 561

(1976), WHEN DISCUSSING BORDER-CHECKPOINT STOPS:

“WE THINK THe SAME CONCLUSION IS APPRO-

PRIATE HERE (THAT IN CERTAIN INSTANCES,

A GOVERNMENTAL INTEREST IN ALLOWING A

MINIMAL INTRUSION OUTWEIGHS A ai

CITIZEN'S EXPECTATION OF PRIVACY

I Goyponepac tt vs Flewel en, 475 Pa. 442, 380 A.2p

i317'¢ WE UPHELD THE VALIDITY OF A WARRANTLESS

ARREST IN DEFENDANT'S HOUSE, THERE, HOWEVER, THE DE-

FENDANT ALLEGED ONLY THAT THE ARREST WAS MADE WITHOUT

PROBABLE CAUSE. WE WERE NOT CALLED UPON TO ANSWER

THE QUESTION POSED IN THE INSTANT CASE.

6A

WHERE WE DEAL NEITHER WITH SEARCHES

NOR WITH pat Pg SANCT ITY ge So ag

BOST Snpicki FOURTH -

PHASIS ADDED

Se THE COURT STATED IN Se

SUPRA, AT 392-93: :

"TERMS. LIKE ‘'EXIGENT CIRCUMSTANCES’ OR

"URGENT NEED’ ARE USEFUL IN UNDERSCORING

THE HEAVY BURDEN ON. THE POLICE TO SHOW

THAT THERE WAS A NEED THAT COULD NOT BROOK

THE DELAY INCIDENT TO OBTAINING A WARRANT,

AND THAT IT IS ONLY IN THE LIGHT OF THOSE

CIRCUMSTANCES AND THAT NEED THAT THE WAR-

RANTLESS SEARCH MEETS THE ULTIMATE TEST

OF AVOIDING CONDEMNATION UNDER THE OURTH

ENDMENT AS ‘UNREASONABLE, HILE THE

NUMEROUS AND VARIED STREET FACT SITUATIONS

DO NOT PERMIT A COMPREHENSIVE CATALOG ?F

THE CASES COVERED BY THESE TERMS, IT MAY

BE USEFUL TO REFER TO A NUMBER OF CONSID-

ERATIONS THAT ARE MATERIAL, AND HAVE

PARTICULAR PERTINENCE IN THE CASE AT BAR.

“FIRST, THAT A GRAVE OFFENSE IS INVOLVED,

ei ONE THAT IS A CRIME. Of ‘ a

G4 Poa Vv. United 51 rare

A N N

§ MERON Mig tN GBD, eis

des OPINION OF ‘eee ACKSON

NTRARIWISE THE RESTRICTIVE REQUIREMENT

FOR A WARRANT IS MORE LIKELY TO BE RETAINED,

AND THE NEED FOR PROCEEDING WITHOUT A

WARRANT FOUND LACKING, WHEN THE OFFENSE

IS WHAT HAS BEEN SOMETJMES REFERRED TO AS

ONE OF THE ‘COMPLACENT’ CRIMES, LIKE GAMBLING.

"SECOND, AND OBVIOUSLY INTER-RELATED,

THAT THE SUSPECT IS REASONABLY BELIEVED

TO BE ARMED. DELAY IN ARREST OF AN ARMED

FELON MAY WELL INCREASE DANGER TO THE

COMMUNITY MEANWHILE, OR TO THE OFFICERS AT

TIME OF ARREST. IHIS CONSIDERATION BEARS

MATERIALLY ON THE JUSTIFICATION FOR A

WARRANTLESS ENTRY,

7A

“THIRD, THAT THERE EXISTS NOT MERELY

THE MINIMUM OF PROBABLE CAUSE, THAT [IS *

REQUISITE EVEN WHEN A WARRANT HAS BEEN

ISSUED, BUT BEYOND THAT A CLEAR SHOWING

OF PROBABLE CAUSE, INCLUDING REASONABLY

TRUSTWORTHY INFORMATION, TO BELIEVE

THAT THE. SUSPECT COMMITTED THE CRIME

“FouRTH, STRONG REASON TO BELIEVE THAT

THE SUSPECT IS IN THE PREMISES BEING

ENTERED,

“FIFTH, A LIKELIHOOD THAT THE SUSPECT

WILL ESCAPE IF NOT SWIFTLY APPREHENDED.

“SIXTH, THE CIRCUMSTANCES THAT THE

ENTRY, THO NOT CONSENTED, IS MADE

PEACEABLY. RCIBLE ENTRY MAY IN SOME

INSTANCES BE JUSTIFIED, UT THE FACT

THAT ENTRY WAS NOT FORCIBLE AIDS IN SHOW-

ING ners OF POLICE ATTITUDE AND

CONDUCT, [HE POLICE, BY IDENTIFYING

THEIR MISSION, GIVE THE PERSON AN OPPOR-

TUNITY TO SURRENDER HIMSELF WITHOUT A

STRUGGLE AND THUS TO AVOID THE INVASION

OF PRIVACY INVOLVED IN ENTRY INTO THE HOME,

"ANOTHER FACTOR TO BE TAKEN INTO ACCOUNT,

THOUGH IT WORKS IN MORE THAN ONE DIRECTION,

RELATES TO TIME OF ENTRY -- WHETHER IT IS

MADE AT NIGHT, THE ONE HAND, AS WE

SHALL LATER DEVELOP, THE LATE HOUR MAY

UNDERSCORE THE DELAY (AND PERHAPS IMPRAC-

TICABILITY OF) OBTAINING A WARRANT, AND

HENCE SERVE TO JUSTIFY PROCEEDING WITHOUT

ONE. ON THE OTHER HAND, THE FACT THAT AN

ENTRY 'S MADE AT NIGHT RAISES PARTICULAR

CONCERN 0 R its Faguay'gopggts AS I Die

CA N Cc 0 N JON

Vv, fer tep TATES QBLAN & 108 Hg48))°

AND MAY ELEVATE THE DEGREE OF PROBABLE

CAUSE REQUIRED, BOTH AS !MPLICATING THE

SUSPECT, AND AS SHOWING THAT HE IS IN THE

PLACE ENTERED. OOTNOTES OMITTED.

IN THE INSTANT CASE, THE FOLLOWING FACTORS WOULD

WEIGHT IN FAVOR OF UPHOLDING THE WARRANTLESS I!TRUSION.

8A

FIRST, THE CRIME APPELLANT WAS ARRESTED FOR WAS MURDER,

CLEARLY A VIOLENT CRIME, SECOND, THE POLICE HAD MORE

THAN SUFFICIENT PROBABLE CAUSE TO ARREST APPELLANT,

THIRD, AS THE STRUCTURE ENTERED WAS APPELLANT'S RESI-

DENCE, POLICE HAD GOOD REASON TO BELIEVE APPELLANT

WAS PRESENT. FOURTH, THE ARRESTING OFFICERS WERE

ADMITTED INTO THE HOUSE BY APPELLANT'S STEPFATHER.

FINALLY, THE INTRUSION ‘AT 6:30 A.M, MUST BE CONSIDERED

A DAYTIME SEARCH,

ON THE OTHER HAND, POLICE HAD INFORMATION THAT

THE RIFLE USED IN THE INSTANT HOMICIDE WAS IN THE

POSSESSION OF POLICE, AS ANOTHER INDIVIDUAL HAD BEEN

ARRESTED AND HAD POSSESSION OF THE RIFLE, THUS, THE

POLICE HAD NO REASON TO BELIVE THAT APPELLANT WAS

ARMED AT THE TIME OF ARREST, EVEN MORE IMPORTANTLY,

THE INSTANT HOMICIDE PRE-DATED THE DATE OF ARREST BY

APPROXIMATELY THREE YEARS, THERE WAS LITTLE NEED OF

SWIFT APPREHENSION. IN OUR VIEW, WE BELIEVE THESE

TWO FACTORS OUTWEIGH THE FIVE FACTORS MILITATING IN

FAVOR OF ALLOWING THE WARRANTLESS INTRUSION, IN

\itep States vy. Reep, supra, AT 425, THE COURT

FOUND THE TIME FACTOR TO BE CRUCIAL AND WE BELIEVE

THAT, UNDER THESE CIRCUMSTANCES, THE POLICE SHOULD

HAVE OBTAINED AN ARREST WARRANT, WE THUS BELIEVE

9A

: 2

APPELLANT'S ARREST WAS ILLEGAL.

As THE ARREST OF APPELLANT WAS ILLEGAL, WE MUST

NOW DETERMINE IF THAT FACT REQUIRES SUPPRESSION OF

APPELLANT’S CONFESSION. AS THE UNITED STATES SUPREME

CourT STATED IN Wonc Sun v, Unirep States, 371 U.S,

471, 488 (1963), THE TEST 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 DISTING-

UISHABLE TO BE PURGED OF THE PRIMARY TAINT,

HERE, APPELLANT CONFESSED WITHIN A HALF HOUR OF BEING

TAKEN TO POLICE HEADQUARTERS. WE THUS BELIEVE THE

CONFESSION WAS DIRECTLY RELATED TO THE ILLEGALY ARREST,

AND WAS NOT “SUFFICIENTLY AN ACT OF FREE WILL.” Com-

MONWEALTH V, BrsHop, 425 Pa, 175, 182-83, 228 A.2p

661 (1967) ._

APPELLANT ALSO ALLEGES THAT THE TRIAL COURT

ERRED IN TELLING THE JURY, IN RESPONSE TO A QUESTION,

THAT HIS AGE HAD NO BEARING ON HIS CULPABILITY, IN

ADMITTING THE MURDER WEAPON INTO EVIDENCE, IN ALLOWING

2. FURTHER, THE POLICE CANNOT JUSTIFY THE WARRANTLESS

ENTRUS JON ON THE BASIS OF HOT PURSUIT,

SUPRA OR sV._SAN nya yy all Sie OY)

10A

TESTIMONY CONCERNING APPELLANT'S ASSOCIATION WITH ONE

OF THE INDIVIDUALS ARRESTED WITH THE WEAPON, AND IS

NOT ALLOWING HIM TO QUESTION PROSPECTIVE JURORS AS TO

WHETHER THEY WOULD BE MORE INCLINED TO BELIEVE A POLICE

OFFICER THAN A CIVILIAN, OUR FINDING THAT THE ARREST

WAS IMPROPER MAKES IT UNNECESSARY TO REACH THESE ISSUES,

JUDGMENT OF SENTENCE REVERSED AND A NEW TRIAL

IS GRANTED,

Mr, JUSTICE PANDERINO FILED A_CONCURRING

OPINION IN WHICH Mr, JUSTICE ROBERTS JOINS.

Mr, Justice LARSEN FILED A DISSENTING OPINION,

Mr, CHIEF Justice EAGEN CONCURS IN THE RESULT,

“

LIA

f

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA

i Alena

v, : pp AL FROM JUDGMENT

KEVIN WILLIAMS, Court OF LEAS,

APPELLANT : CRIMINAL, 0 ig Te

: PHIA, AT

; Srezeroer S ESSION,

CONCURRING OPINION

JUSTICE MANDERINO

ALTHOUGH I AGREE WITH THE MAJORITY THAT APPEL-

LANT’S ARREST WAS INVALID, AND THAT HIS CONFESSION

WAS THE PRODUCE OF THAT ILLEGAL ARREST, I CANNOT AGREE

WITH THE MAJORITY’S CONCLUSION THAT A WILLFUL, DELI-

BERATE, AND PREMEDITATED KILLING MAY BE INFERRED SOLELY

FROM THE USE OF A DEADLY WEAPON ON A VITAL PART OF

THE BODY, COMMONWEALTH v, O’SEaRO, __ Pa, __, __

A.2p __ (1978) (concuRRING OPINION OF ManperRINO, J.),

COMMONWEALTH vy, O’SeaRO, 466 Pa, 244, 352 A.2p 30 (1976)

(DISSENTING OPINION OF MANDERINO, J., JOINED BY ROBERTS,

J.). PROOF OF THE USE OF A DEADLY WEAPON ON A VITAL

PART OF THE BODY IS SUFFICIENT TO SUPPORT AN INFERENCE

12A

OF MALICE ONLY,

IN THE CASES IN WHICH WE HAVE UPHELD CONVICTIONS

OF MURDER IN THE FIRST DEGREE, THE EVIDENCE ESTABLISHED

NOT ONLY THE USE OF A WEAPON ON A VITAL PART OF THE

BODY, BUT ALSO OTHER FACTS FROM WHICH THE FACT FINDER

COULD CONCLUDE THAT THE KILLING WAS WILLFUL, DELIBERATE,

AND PREMEDITATED. COMMONWEALTH v. PeTRAKOviIcH, 459

Pa, 570, 329 A.2p B44, 848 (1974); ComMMONWEALTH Vv.

Mostey, 444 Pa, 134, 279 A.2p 174 (1971); CommonwEALTH

y. Hornpercer, 441 Pa. 57, 270 A.2p 195 (1970); Common-

WEALTH Vv. EWING, 439 Pa. 88, 264 A.2p 661 (1970); Com-

MONWEALTH v. Commanner, 436 Pa. 532, 260 A.2p 773 (1970).

IN THIS CASE, HOWEVER, THE MAJORITY RELIES ON

ONLY ONE FACT -- THE FIRING OF A SHOT FROM A DISTANCE

TOWARD PEOPLE APPELLANT DID NOT KNOW -- TO SUPPORT

ITS CONCLUSION THAT DELIBERATION AND PREMEDITATION,

AS WELL AS MALICE, CAN BE INFERRED,

AN INFERENCE OF DELIBERATION AND PREMEDITATION

CAN BE MADE ONLY IF THE EVIDENCE CONTAINS OTHER FACTS

SUCH AS:

"(1) FACTS ABOUT HOW AND WHAT THE DEFENDANT

DID PRIOR TO THE ACTUAL KILLING WHICH SHOW

HE WAS ENGAGED IN ACTIVITY DIRECTED TOWARD

THE KILLING, THAT IS, PLANNING ACTIVITY.

(2) FACTS ABOUT THE DEFENDANT’S PRIOR RELA-

TIONSHIP AND CONDUCT WITH THE VICTIM FROM

WHICH MOTIVE MAY BE INFERRED.

135A

(3) FACTS ABOUT THE NATURE OF THE KILL-

ING (WHICH INDICATE) THAT THE MANNER OF

KILLING WAS SO PARTICULAR AND EXACTING

THAT THE DEFENDANT MUST HAVE INTENTIONALLY ,

‘ LLED ACCORDING TO A PRECONCEIVED DESIGN,”

HASIS IN ORIGINAL).

A Fave AND SGOT HANDBOOK IN CRIMINAL

THE MAJORITY’S RELIANCE ON COMMONWEALTH Vv, Kampo,

__. PA. __, 391 A.2p 1005 (1978) For THE PROPOSITION

THAT MALICE AND PREMEDITATION CAN BE INFERRED IS MIS-

PLACED, IN COMMONWEALTH v. KAMPO, SUPRA, TWO WITNESSES

TESTIFIED THAT APPELLANT TOLD THEM SOMEONE WAS GOING

TO DIE THAT DAY. CLEARLY, THIS TESTIMONY SHOWED A

PLAN TO KILL SOMEONE AND THEREFORE, A FACT FINDER COULD

FIND DELIBERATION AND PREMEDITATION, HERE, THERE IS

NQ SUCH ADDITIONAL EVIDENCE.

Mr, JuSTICE ROBERTS JOINS IN THIS CONCURRRING

OPINION,

14A

IN THE SUPREME CautT OF PEANSYLVANIA

COMMONWEALTH OF PENNSYLVANIA (ei 59 JANUARY

= ERM, 19

PEAL FROM JUDGMENT

| bunt’ or" Cong Pees

KEVIN WILLIAMS, : CRIMINAL, OF PATA ’

APPELLANT : DELPHIA, ty 75

Seereracr ESSION,

DISSENTING OPINION

JUSTICE ROLF LARSEN

I DISSENT AND IN SUPPORT THEREOF QUOTE FROM

Jupce HucH R, Jones oF THE New York Court oF APPEALS

(THAT STATE’S HIGHEST COURT) IN HIS MAJORITY OPINION

In People vy. Payton, 45 N.Y.2p 300, 309-312, 380 N.E.2p

224, 228-230 (1978):

THE PARTIES ALSO DRAW THE CONFLICTING

INFERENCES (WHICH OTHERS HAVE SIMILARLY

RAWN) FROM HOLDINGS MD WRITINGS OF THE

UPREME COURT OF THE TER. TATES AND

ITS INDIVID IUSTICER.

From UNITED States Vv. Watson (403 US 411)"

THAT AN ARREST FOLLOWING A Dy THe PEF

CONCLUDE rma fae Is ere Hug Aote®

v4

THAT THE CONTRARY IS THE CASE. THE

FACT IS THAT THE SUPREME CoURT HAS NOT

YET RESOLVED THE ISSUE, AS APPEARS FROM

THE EXPLICIT STATEMENT IN THE PLURALITY

OPINION IN WATSON THAT THE QUESTION

15A

"WHETHER AND UNDER WHAT CIRCUMSTANCES AN

OFFICER MAY ENTER A suspesT 8 YOME ri

MAKE A WARRA .

SETTLED’ (3 LS AT P ils, N 6), “Hor

HAS THE ISSUE BEEN RESOLVED IN OUR COURT.

Th DETERMINING NOW THAT THE WARRANTLESS

ARRESTS EFFECTED IN THESE CASES DID NOT

VIOLATE DEFENDANTS’ CONSTITUTIONAL RIGHTS

TO BE FREE FROM UNREASONABLE SEARCHES AND

SEIZURES, WE RELY BOTH ON WHAT WE PERCEIVE

TO BE A SUBSTANTIAL DIFFERENCE BETWEEN THE

INTRUSION WHICH ATTENDS AN ENTRY FOR THE

PURPOSE OF SEARCHING THE PREMISES AND THAT

WHICH RESULTS FROM AN ENTRY FOR THE PURPOSE

OF MAKING AN ARREST, AND ON THE SIGNIFICANT

DIFFERENCE IN THE GOVERNMENTAL INTEREST IN

ACHIEVING THE OBJECTIVE OF THE INTRUSION

IN THE TWO INSTANCES,

IN THE CASE OF THE SEARCH, UNLESS APPRO-

PRIATELY LIMITED BY THE TERMS OF A WARRANT,

THE INCURSION ON THE HOUSEHOLDER’S DOMAIN

NORMALLY WILL BE BOTH MORE EXTENSIVE AND

MORE INTENSIVE AND THE RESULTING INVASION

OF HIS PRIVACY OF GREATER MAGNITUDE THAN

WHAT MIGHT BE EXPECTED TO OCCUR ON AN

ENTRY MADE..FOR THE PURPOSE OF EFFECTING

HIS ARREST. A SEARCH BY ITS NATURE CONTEM-

PLATES A POSSIBLY THOROUGH RUMAGING

THROUGH POSSESSIONS, WITH CONCURRENT

UPHEAVAL OF THE OWNER’S CHOSEN OR RANDOM

PLACEMENT OF GOODS AND ARTICLES AND DIS-

CLOSURE TO THE SEARCHES OF A MYRIAD OF

PERSONAL ITEMS AND DETAILS WHICH HE WOULD

EXPECT TO BE FREE FROM SCRUTINY BY UNIN-

VITED EYES. THE HOUSEHOLDER BY THE ENTRY

AND SEARCH OF HIS RESIDENCE IS STRIPPED

BARE, IN GREATER OR LESSER DEGREE, OF

THE PRIVACY WHICH NORMALLY SURROUNDS HIM

IN HIS DAILY LIVING, AND, IF HE SHOULD

BE ABSENT, TO AN EXTENT OF WHICH HE WILL

BE UNAWARE,

ENTRY FOR THE PURPOSE OF ARREST may

BE EXPECTED TO BE QUITE DIFFERENT. WHILE

THE TAKING INTO CUSTODY OF THE PERSON

OF THE HOUSEHOLDER IS UNQUESTIONABLY OF

GRAVE IMPORT, THERE IS NO ACCOMPANYING

16A

PRYING INTO THE AREA OF EXPECTED PRIVACY

TTENDING. HIS POSSESSIONS AND AFFAIRS,

HAT PERSONAL SEIZURE ALONE DOES vl RE~

Qo ATE A y aten Coe Se oh .

WHICH UPHELD A WARRANTLESS ARREST MADE

IN A PUBLIC PLACE, iN VIEW OF THE MINIMAL

INTRUSION ON THE ELEMENTS OF PRIVACY OF

THE HOME WHICH RESULTS FROM ENTRY ON THE

PREMISES FOR MAKING AN ARREST (AS COMPARED

WITH THE GROSS INTRUSION WHICH ATTENDS

THE ARREST ITSELF), WE PERCEIVE NO SUFFI-

CIENT REASON FOR DISTINGUISHING BETWEEN

AN ARREST IN A. PUBLIC PLACE AND AN ARREST

IN A RESIDENCE. [0 THE EXTENT THAT AN

ARREST WILL ALWAYS BE DISTASTEFUL OR

OFFENSIVE, THERE IS LITTLE REASON TO ASSUME

THAT ARREST WITHIN THE HOME IS ANY MORE

SO THAN ARREST IN A PUBLIC PLACE; ON THE

CONTRARY, IT MAY WELL BE THAT BECAUSE

OF THE ADDED EXPOSURE THE LATTER MAY BE

MORE OBJECTIONABLE,

AT LEAST AS IMPORTANT, AND PERHAPS EVEN

MORE SO, IN CONCLUDING THAT ENTRIES TO

MAKE ARRESTS ARE NOT ‘UNREASONABLE’ --

THE SUBSTANTIVE TEST UNDER THE CONSTITU-

TIONAL PROSCRIPTIONS -- IS THE OBJECTIVE

FOR WHICH THEY ARE MADE, VIZ., THE ARREST

OF ONE REASONABLY BELIEVED TO HAVE COMMIT-

TED A FELONY, WITH RESULTANT PROTECTION

TO THE COMMUNITY. JHE ‘REASONABLENESS

OF ANY GOVERNMENTAL INTRUSION IS TO BE

JUDGED FROM TWO PERSPECTIVES -- THA? OF

THE DEFENDANT, CONSIDERING THE DEGREE

AND SCOPE OF THE INVASION _OF HIS PERSON

OR PROPERTY; THAT OF THE PEOPLE, WEIGHING

THE OBJECTIVE AND IMPERATIVE QF GOVERN-

MENTAL ACTION. [HE COMMUNITY'S INTEREST

IN THE APPREHENSION OF CRIMINAL SUSPECTS

IS OF A HIGHER ORDER THAN IS ITS CONCERN

FOR THE RECOVERY OF CONTRABAND OR EVIDENCE;

NORMALLY THE HAZARDS CREATED BY THE FAILURE

TO APPREHEND FAR EXCEED THE RISKS WHICH

MAY FOLLOW NONRECOVERY,

17A

.+ a THE MERI CAR Law | STi TUTE ‘s MODEL

Cope OF PRE- RRALGNPENT P ROCEDURE MAKES

SIMILAR PROVISION IN SECTION 6, WITH

SUGGESTED SPECIAL RESTRICTIONS ONLY AS

TO NIGHTTIME ENTRIES, [HE ACCOMPANYING

COMMENTARY STATES: °10 GO FURTHER AND

REQUIRE A WARRANT OR A SHOWING OF NECESSITY

BEFORE POLICE MAY MAKE A FELONY ARREST

ON PRIVATE PROPERTY EVEN IN DAYTIME SEEMS

UNDULY RESTRICTIVE. MOREOVER, APART FROM

THE SPECIALLY ALARMING QUALITY OF NIGHTTIME

ENTRIES AND APART FROM SEARCH CONSIDERA-

TIONS, ,I[T IS FAR FROM CLEAR THAT AN ARREST

IN ONE’S HOME IS SO MUCH MORE THREATENING

OR HUMILIATING THAN A STREET ARREST AS

TO JUSTJFY FURTHER fest ICTIONS ON. THE

POLICE, pt RICAN STITUTE, 9S

CopF a Pre-ARRAIGNMENT PROCEDURE ( -

P

snails B

Supreme Court of Permsylvania

a ce at rmaoeirnin. 16?

OSPUTY PROTHONOTARY

February 16, 1979

RECEIvep

a

Robert B. Lawler, Esquire

Chief, Appeals Division DISTRICT

2300 Centre Square ATTaRney

Philadelphia, PA 19102

Re: Commonwealth of Pennsylvania v. Kevin Williams, Appellant

No. 559 January Term, 1976

Dear Mr. Lawler:

This is to advise you that the following Order has

been endorsed on your Application for Reargument, filed in

the above-captioned matter:

"2/12/79

Petition denied.

Per Curiam."

Very truly yours,

Frenne /

Sally Mrvos

Prothonotary

SM:bl

cc: Leslie J. Carson, Esquire

West Publishing Company

Argued 4/20/7

Decision 11/18/78 - J-212

Jt,

19A

Appenpix C

gi COUNTY

ce oe aH

COMMONWEALTH OF PENNSYLVANIA — : SGETEMBER TERM,

v,

KEVIN WILLIAMS : No, 1675

OPINION

SMITH, THEODORE B., JR., J.

A JURY FOUND DEFENDANT GUILTY OF First DEGREE

MURDER, AND IN ACCORDANCE WITH THE LAW IN EFFECT OF

SepTemMBER 30, 1972, THE DATE OF THE HOMICIDE WITH

WHICH HE WAS CHARGED, HE WAS SENTENCED TO LIFE

IMPRISONMENT, HE APPEALS FROM DENIAL OF HIS POST-

TRIAL MOTIONS IN ARREST OF JUDGMENT AND FOR NEW

TRIAL,

THE EVIDENCE FOR THE COMMONWEALTH CAN BE

SUMMARIZED AS FOLLOWS: (NT, 231) ON THE NIGHT

oF SepTemBeR 30, 1972 at aBouTt 9:30 P.M, JAMES

Norwoop, 26 YEARS, LEFT HIS HOME WITH JAMES SPINKS,

21 YEARS, THE DECEASED IN THIS CASE, AND WALKING,

REACHED THE INTERSECTION OF 32ND AND BERKS STREETS

IN PHILADELPHIA, THEN AT THE SOUND OF A GUNSHOT

BOTH MEN RAN AND WHEN NORWOOD MISSED THE PRESENCE

OF SPINKS, WENT IN SEARCH OF AND FOUND HIM LYING

20A

ON THE FRONT STEPS OF A HOUSE AT 32ND AND MONTGOMERY

Avenue, NORWOOD HAILED A YELLOW CAB AND THE WOUNDED

SPINKS WAS TAKEN TO THE Women’s MeprcaL Hospi Tac

WHERE HE DIED AT APPROXIMATELY 11:00 P.M, THAT NIGHT,

FROM A SINGLE .22 CALIBER GUNSHOT WOUND OF THE CHEST,

AS SUBSEQUENTLY DETERMINED BY Dr. Dimitri ConTosTAvoLos

OF THE PHILADELPHIA MeprcaL ExAMINeR’S OFFIce, IN

THE COURSE OF HIS POST-MORTEM EXAMINATION OF THE

DECEDENT, Dr. ConTOSTAVOLOS REcOvERED (N.T, 209) THE

BULLET WHICH CAUSED SPINKS’ DEATH WHICH WAS ULTIMATELY

GIVEN TO THE BALLISTICS UNIT OF THE PHILADELPHIA POLICE

DEPARTMENT.

On Octoper 14, 1973, at APPROXIMATELY 10:45 P.M,

(N.T, 254) Officer James HARRIS WITH OTHERS (N,T,

256) PURSUED A FLEEING AUTOMOBILE AND SUBSEQUENTLY

ARRESTED FOUR YOUNG MALES, ONE OF WHOM WAS NAMED JAMES

DAVIS, A KNOWN FRIEND OF DEFENDANT WHO LIVED NEAR

32ND AND Berks Streets (fl,T. 260), During THE CHASE

OF THE CAR A .22 CALIBER, SINGLE SHOT BOLT-ACTION

RIFLE WAS THROWN FROM IT, THIS RIFLE, MARKED FOR

IDENTIFICATION AT TRIAL AS COMMONWEALTH EXHIBIT 7,

WAS SUBSEQUENTLY TEST-FIRED BY WILLIAM DANBACHER,

FIREARMS EXAMINER IN THE PHILADELPHIA Povice DEPaRT-

MENT’S FIREARMS IDENTIFICATION UNIT, WHO THEN COMPARED

THE RECOVERED TEST-FIRED BULLET WITH THE EVIDENTIARY

21A

BULLET PREVIOUSLY RECOVERED FROM THE BODY OF JAMES

Spinks. Mr. DANBACHER TESTIFIED THAT IN HIS OPINION

BOTH THE EVIDENTIARY AND TEST-FIRED BULLETS WERE FIRED .

FROM THE SAME ExHIBIT C-7 Gun (N.T. 273).

On Septemper 7, 1975 at 6:35 a.m, Detectives

RoBeRT KANE AND ALBERT PASCALI ARRESTED THE DEFENDANT,

AGE 18 YEARS, AT HIS HOME 3227 West Berks Street (N.T.

283-4), THEY TOOK HIM TO THE POLICE ADMINISTRATION

BUILDING, WHERE HE WAS WARNED OF HIS CONSTITUTIONAL

RIGHTS AND FIRST INTERROGATED AT 7:10 A.M. AT WHICH

TIME HE ADMITTED IN A WRITTEN SIGNED STATEMENT THAT HE,

WITHOUT REASON, ON SEPTEMBER 30, 1972, FROM AN ALLEY ON

BERKS STREET, SHOT AT TWO MEN, UNKNOWN TO HIM THEN,

WITH A .22 CALIBER SINGLE SHOT BOLT-ACTION RIFLE WHICH

HE HAS JUST TAKEN FROM THE TRUNK OF A CAR, NOT HIS,

HE ALSO SAID THAT HE LEARNED THE NEXT DAY THAT THE

PERSON SHOT WAS A “CHUCK”, WITH WHOM HE USED TO GANG

WAR, THAT ON THE DAY AFTER THE SHOOTING HE GAVE THE

RIFLE TO SOMEONE, AND THAT LATER THE RIFLE, BEING

A GANG WEAPON, WAS RECOVERED BY THE POLICE WHEN SOME

BOYS WERE ARRESTED WITH IT,

TESTIFYING IN HIS OWN BEHALF, THE DEFENDANT

DENIED THAT THE FACTS SET FORTH IN THE WRITTEN STATE-

MENT WERE TRUE, 10 THE CONTRARY, HE STATED THAT HE

22A

DID NOT SHOOT JAMES SPINKS, AND NEITHER OWNED NO[R]

EVER POSSESSED ANY GUN AND IN PARTICULAR, NOT THE

RIFLE IN EVIDENCE,

THE DEFENDANT ALSO PRESENTED HIS BROTHER,

ELL1oTT WILLIAMS, AND JOHN ROBINSON WHO BOTH TESTI-

FIED TO A CAR PULLING TO A STOP ON SEPTEMBER 30, 1972

IN THE SHOOTING VICINITY, AND OF TWO MEN GETTING OUT

OF IT, WILLIAMS SAID HE SAW THEM LIFT THE HOOD OF

THE CAR, REACH UNDER IT AND THEN GET BACK INTO THE

CAR, AND THAT WHILE HE HEARD NO SHOT, HE DID SEE

SPINKS STAGGERING, ROBINSON SAID HE SAW ONE OF THE

MEN WHO HAD A RIFLE, SHOOT AT THE DECEASED, AFTER

WHICH THE MEN JUMPED BACK INTO THE CAR AND SPED AWAY

AS SPINKS FELL.

GRANT OF THE MOTION IN ARREST OF JUDGMENT IS

PRECLUDED BY THE EVIDENCE ABOVE SUMMARIZED. THE

CRITERIA FOR DETERMINATION OF THE MERIT OF SUCH A

MOTION ARE FIRMLY ESTABLISHED, THE STANDARD TEST

OF THE WEIGHT OR SUFFICIENCY OF EVIDENCE TO CONVICT

IS WHETHER, ACCEPTING AS TRUE ALL THE EVIDENCE AND

ALL REASONABLE INFERENCES THEREFROM, UPON WHICH, IF

BELIEVED, THE JURY COULD PROPERLY HAVE BASED ITS

VERDICT, IT IS SUFFICIENT IN LAW TO PROVE BEYOND A

REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE

CRIME OR CRIMES OF WHICH HE HAS BEEN CONVICTED,

23A

IN ADDITION, ALL THE EVIDENCE ADMITTED AT TRIAL IS

TO BE VIEWED IN THE LIGHT MOST FAVORABLE TO THE

COMMONWEALTH, AND ALL REASONABLE INFERENCES DRAWN

IN THE COMMONWEALTH’S FAVOR. COMMONWEALTH V. JACKSON,

353 A.2p 379; CoMMONWEALTH v. Fowarps, 353 A.2p 383;

COMMONWEALTH v, ILGENFPITZ, 353 A.2p 387; COMMONWEALTH

vy. Baker, 353 A.2p 454,

INDEED, DEFENDANT SERIOUSLY URGES ONLY TWO CON-

SIDERATIONS IN SUPPORT OF HIS MOTION IN ARREST OF

JUDGMENT: (1) THE CIRCUMSTANCES OF HIS ACQUIRING

THE RIFLE BY THEFT, ONLY A FEW MINUTES BEFORE THE

SHOOTING, AND THEN FIRING IT AT SOMEONE HE DID NOT

KNOW, AT NIGHT, ON A POORLY LIGHTED STREET, FROM A |

DISTANCE OF 125 FEET, OBVIATE ANY INFERENCE OF INTENT |

OR MALICE AS NECESSARY ELEMENTS, RESPECTIVELY, OF

EITHER FIRST or Seconp Decree MurDER, AND, RATHER,

COMPEL THE CONCLUSION THAT THIS WAS AN INNOCENT

ADOLESCENT IMPULSIVELY TRYING OUT A NEW TOY; (2) HIS

EXTREME YOUTH RENDERS HIM INCAPABLE OF FORMING OR

HARBORING THE INTENT OR MALICE NECESSARY TO SUPPORT

HIS CONVICTION, TO THE CONTRARY, (1) BY THE INFERENCES

TO WHICH THE COMMONWEALTH IS ENTITLED AT THIS JUNCTURE,

DEFENDANT BY HIS OWN WRITTEN STATEMENT KNEW HOW TO

FORCE OPEN A LOCKED AUTOMOBILE TO THIEVE ITS CONTENTS,

24A

AND WAS OF SOME EXPERIENCE IN GANG WARS, GLARING INCON-

SISTENCIES WITH THE PORTRAIT OF HIM PRESENTLY URGED;

NEITHER IS THERE ANY WORD IN THE TESTIMONY THAT HE

WAS IMPULSIVELY TRYING OUT A NEW-FOUND ACQUISITION,

RATHER HE TESTIFIED THAT HE NEVER HAD POSSESSION OF

AND NEVER FIRED THE WEAPON, (2) IT IS STILL THE LAW

THAT USE OF A DEADLY WEAPON ON A VITAL PART OF A

VICTIM’S BODY AFFORDS GROUND FOR THE INFERENCE OF

BOTH SPECIFIC INTENT TO KILL AND OF MALICE. COMMON-

WEALTH V, PapGeTT, __ PA, __, 348 A.2p 87; Common-

WEALTH Vv, Acre, 449 Pa, 187, 296 A.2p 741,

No AUTHORITY IS OFFERED FOR THE PROPOSITION

THAT THE AGE OF 15 (A) IPSO FACTO NEGATES THE EXISTENCE

OF EITHER INTENT OR MALICE AS NECESSARY ELEMENTS OF

EITHER First orn Second Decree Murder, or (B) REQUIRES

ANY EVALUATION OF EVIDENCE FOR EXISTENCE OF THESE

ELEMENTS OTHER THAN BY THE STANDARD APPLICABLE TO

AN ADULT DEFENDANT, THIS COURT KNOWS OF NO SUCH

AUTHORITY, AND RESEARCH DISCLOSES NONE,

IN SUPPORT OF THE MOTION FOR NEW TRIAL, THE

KINDRED PROPOSITION IS ADVANCED THAT THE JURY, PARTIC-

ULARLY IN RESPONSE TO ITS OWN DIRECT QUESTION, SHOULD

HAVE BEEN INSTRUCTED THAT IT MUST TAKE THE DEFENDANT’S

AGE INTO CONSIDERATION IN DETERMINING EXISTENCE OF

25A

EITHER INTENT OR MALICE, THE JURY INTERRUPTED ITS

DELIBERATIONS TO ASK THIS QUESTION OF THE CouRT:

"DoES THE DEFENDANT'S AGE AT THE

TIME OF THE CRIME HAYE ANY BEARING ON

THE DEGREE OF GUILT?

THe CourT’S ANSWER TO THE QUESTION POSED WAS:

veeee” THE DEFENDANT'S AGE STATED BY THE POLICE TO

BE 16, STATED BY THE DEFENDANT TO BE 15, AT THE TIME

OF THE COMMISSION OF THIS CRIME, ALTHOUGH HE WAS

APPREHENDED WHEN 18, HAS NO BEARING ON THE DEGREE

OF GUILT.....IF BY THAT YOU MEAN FIRST DEGREE MURDER,

SECOND DEGREE MURDER OR VOLUNTARY MANSLAUGHTER, IT

HAS” NO BEARING ON THE DEGREE OF GUILT, LET ME SAY

THIS, THAT ON THE SCORE OF AGE CONSIDERED ALONE, A

15 or 16-YEAR-OLD YOUNG MAN AT THE COMMISSION OF THE

CRIME, HAS FULL RESPONSIBILITY AS AN ADULT FOR ANY

CRIMES COMMITTED.” WHEN QUESTIONED, THE FOREMAN OF

THE JURY INFORMED THE COURT THAT THIS HAD, HE BELIEVED,

ANSWERED THE JURY'S QUESTION,

THIS ADDITIONAL INSTRUCTION WAS IN ACCORDANCE

WITH ALL THE LAW, AS KNOWN TO THE TRIAL JUDGE, AND

NO AUTHORITY TO ANY DIFFERENT EFFECT HAS BEEN OFFERED

BY DEFENDANT OR DISCOVERED BY THE CouRT’S INDEPENDENT

RESEARCH, THE SAME IS TO BE SAID AS TO THE CONTENTION

THAT THE DEFENDANT’S YOUTH REQUIRED THE CouRT TO

26A

INSTRUCT THE JURY TO CONSIDER IT AS ONE OF THE DETER-

MINING FACTORS OF THE EXISTENCE OF INTENT OR MALICE

AS DISTINGUISHED FROM THE PRECISE POINT BY THE JuRY,

ITS BEARING ON DEGREE OF GUILT,

THE AGE OF THE DEFENDANT IS CERTAINLY RELEVANT

ON THE QUESTION OF CAPACITY TO COMMIT CRIME OR AS IN

THIS CASE WHERE THE VOLUNTARINESS OF A CONFESSION

IS CONCERNED, THE DEFENDANT IN THIS CASE was 15 or

16 YEARS OF AGE AT THE CRIME’S COMMISSION AND HENCE,

IS PRESUMED CAPABLE OF THE COMMISSION OF CRIME AND

THE COURT DID CALL THE JURY’S ATTENTION TO HIS AGE

BEING 18 (oR 19) WITH REGARD TO THEIR CONSIDERATION

OF IT ON THE QUESTION OF VOLUNTARINESS OF THE CON-

FESSION (N.T, 406-407), THE DEFENDANT WAS ENTITLED

TO NO MORE,

FURTHER, AS GROUND FOR NEW TRIAL DEFENDANT

ASSERTS THAT THE POLICE LACKED PROBABLE CAUSE TO MAKE

A WARRANTLESS ARREST FOR THE SPINKS SLAYING AND HENCE,

THE STATEMENT WAS INADMISSIBLE,

AT THE SUPPRESSION HEARING HELD BEFORE JUDGE

ARMAND DELLA Porta, Detective RoBerTt KANE OF THE

HOMICIDE DIVISION OF THE PHILADELPHIA PoLice Depart-

MENT, TESTIFIED THAT PRIOR TO THE DEFENDANT’S ARREST

ON SEPTEMBER 7, 1975, aT HIS HOME AT 3227 West Berks

27A

STREET, PHILADELPHIA, A SHORT DISTANCE FROM THE SHOOTING

SCENE AT WHICH JAMES SPINKS WAS KILLED ON SEPTEMBER

30, 1972, HE WAS POSSESSED OF THE FOLLOWING INFORMATION:

SHetty Knox (S.N.T. 59): ToLD HIM THAT ON OcToBER 1,

1972, THE DAY FOLLOWING THE INCIDENT, KNOWING OF JAMES

Spinks’ a/K/A “CHuckre” (S.N.T. 8) BEING SHOT, HE

WENT TO THE DEFENDANT’S HOME AND IN A CONVERSATION

WITH THE DEFE’ANT WAS TOLD BY THE DEFENDANT THAT

HE HAD SHO) .#@ AILLED “CHUCKIE” THE NIGHT BEFORE

WITH A RIFLE, .°2 CALIBER, SINGLE SHOT. THE INFORMANT

ALSO SAID THE RIFLE WAS LATER “BUSTED” IN EAST FALLS

WITH “SATCH” WHOSE REAL NAME WAS James Davis (S.N.T,.

9-10), THE INTERVIEW WITH KNOX AS INFORMANT WAS ON

SepTemBer 6, 1975 (S.N.T. 10). A CHECK WITH BALLISTICS

REVEALED THAT IN FACT JAMES DAVIS HAD BEEN ARRESTED

(“BUSTED”) WITH A .22 CALIBER RIFLE ON OcToBer 14,

1973, WHICH THEY HAD IN THEIR POSSESSION,

WITH OR WITHOUT A WARRANT, IN ORDER FOR AN ARREST

TO BE VALID, IT MUST BE BASED UPON PROBABLE CAUSE,

IF THE ARREST IS ILLEGAL, ANY CONFESSION FOLLOWING

IT WILL BE TAINTED AND UNLESS TAINT IS REMOVED, WILL

BE INADMISSIBLE. THE CONSTITUTION OF THE UNITED STATES

PROHIBITS THE ARREST OF A PERSON UNLESS THE ARRESTING

OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT A CRIME HAS

28A

BEEN OR IS BEING COMMITTED, PROBABLE CAUSE EXISTS

ONLY WHERE THE FACTS AND CIRCUMSTANCES WITHIN THE

OFFICERS’ KNOWLEDGE AND OF WHICH THEY HAVE REASONABLY

TRUSTWORTHY INFORMATION ARE SUFFICIENT IN THEMSELVES

TO WARRANT A MAN OF REASONABLE CAUTION IN THE BELIEF

THAT AN OFFENSE HAS BEEN OR IS BEING COMMITTED,

COMMONWEALTH VY. EiisworTH, 421 Pa, 169, 218 A.2p 249

(1966); BrineGar v, UNITED States, 338 U.S, 160, 197-76,

69 S,Cr. 1302, 1311 (1949),

WHERE PROBABLE CAUSE FOR A WARRANTLESS ARREST

IS BASED ON HAARSAY INFORMATION SUPPLIED BY AN ANONY-

MOUS INFORMER, THE ARRESTING OFFICER MUST HAVE TWO

TYPES OF ADDITIONAL INFORMATION BEFORE PROBABLE CAUSE

IS ESTABLISHED: FIRST, IN ORDER TO ASSURE THAT THE

TIP IS NOT MERELY AN UNSUPPORTED RUMOR, THE OFFICER

MUST KNOW THE UNDERLYING CIRCUMSTANCES FROM WHICH

THE INFORMER CONCLUDED THAT THE SUSPECT PARTICIPATED

IN THE CRIME; SECOND, IN ORDER TO REDUCE THE POSSI-

BILITY THAT A TIP MEETING THE FIRST STANDARD IS MERELY

A WELL-CONSTRUCTED FABRICATION, THE OFFICER MUST HAVE

SOME REASONABLE BASIS FOR CONCLUDING THAT THE SOURCE

OF THE TIP WAS RELIABLE. BEeTRAND Appeal, 451 Pa,

48], 303 A.2p 486 (1973).

IN THE PRESENT CASE THE INFORMER WAS NOT AN

29A

ANONYMOUS ONE BUT A FRIEND OF THE DEFENDANT WHOSE

NAME IS SHELLY KNOX AND THIS NAME WAS SUPPLIED AT

THE SUPPRESSION HEARING (S.N.T, 59), FURTHER, THE

DETECTIVE WAS SUPPLIED THE UNDERLYING CIRCUMSTANCES

FROM WHICH THE INFORMER CONCLUDED THE SUSPECT DEFENDANT

DID THE SHOOTING. THE DEFENDANT DECLARED AGAINST

HIS PENAL INTEREST THAT HE SHOT SPINKS THE PREVIOUS

NIGHT, AND THUS THE INFORMANT HAD PERSONAL KNOWLEDGE

OF THE CRIME ITSELF, THE INFORMANT FURTHER TOLD THE

DETECTIVE THAT THE INSTRUMENT USED IN THE SHOOTING,

AS TOLD HIM BY DEFENDANT, WAS A .22 CALIBER SINGLE

SHOT RIFLE AND THAT HE, THE INFORMER, KNEW THAT IT

HAD BEEN RECOVERED BY THE POLICE AT THE TIME OF THE

ARREST OF ONE JAMES DAVIS, WHO LIVED CLOSE TO THE

SHOOTING SCENE. THE DETECTIVE THEN CHECKED WITH THE

BALLISTICS UNIT OF THE PHILADELPHIA POLICE DEPARTMENT

AND LEARNED THAT IN FACT THEY HAD SUCH A RIFLE AT

THE TIME JAMES DAVIS WAS ARRESTED PRIOR TO DEFENDANT'S

ARREST,

ALL OF THE FOREGOING INFORMATION WOULD HAVE

BEEN SUFFICIENT TO MEET THE TWO-PRONG TEST PROVIDED

IN SPINELLI Vv. UniTep States, 393 U.S. 410, 89 S.Ct.

S84 (1969) AND IN THE CASE OF THE ANONYMOUS TIPSTER

OF THE BETRAND APPEAL, SUPRA.

30A

Tuts CourT AGREES WITH JupGe DELLA Porta’s

DENIAL OF THE MOTION TO SUPPRESS THE STATEMENT AND

HIS HOLDING IT ADMISSIBLE,

As ERROR AT TRIAL REQUIRING CORRECTION BY NEW

TRIAL, THE DEFENDANT ASSIGNS DENIAL OF HIS REQUEST

TO HAVE THE FOLLOWING QUESTION ASKED ON VOIR DIRE:

"III, IF THERE IS A QUESTION OF

WHICH PERSON TO BELIEVE, WOULD YOU

TEND TO BE INFLUENCED BECAUSE OS

THE OTHER WAS A CIVILIANS” (eT. 3-49)

THE EXAMINATION OF JURORS UNDER VOIR DIRE IS

SOLELY FOR THE PURPOSE OF SECURING A COMPETENT, FAIR,

IMPARTIAL AND UNPREJUDICED JuRY. ITS PURPOSE IS NOT

TO PROVIDE THE DEFENDANT WITH A BETTER BASIS UPON

WHICH TO USE HIS PEREMPTORY CHALLENGES. COMMONWEALTH

vy. Lopinson, 375 Pa, 518, 100 A.2p 467 (427, Pa, 284,

234 A.2p 5521; ComMONWEALTH v, BreBiGHauser, 450 Pa,

336, 300 A.2p 70,

THE INQUIRY ON VOIR DIRE RELATIVE TO THE ATTITUDE

OF PROSPECTIVE JURORS AS TO THE TESTIMONY OF A POLICE

OFFICER VIS A VIS THAT OF A CIVILIAN MAY BE PROPER FOR

A DEFENDANT CANNOT BE TRIED FAIRLY BY A JUROR WHO

GIVES UNQUALIFIED CREDENCE TO A POLICEMAN SIMPLY

BECAUSE HE IS SUCH BY OCCUPATION, RECOGNIZING THIS,

IN ACCORDANCE WITH HIS UNVARYING PRACTICE, THE TRIAL

31A

JUDGE TOOK GREAT PAINS TO INSTRUCT ON THIS POINT IN

HIS PRELIMINARY INSTRUCTIONS --ALL WITNESSES ARE TO

BE TREATED EQUALLY AS TO CREDIBIILITY REGARDLESS OF

OCCUPANTION, COUNSEL FOR DEFENDANT WAS FREE TO ASK,

AS THE COURT DID ON MANY OCCASIONS, WOULD THE VENIREMAN

FOLLOW THESE INSTRUCTIONS - INCLUDING THAT AS TO

POLICEMEN’S TESTIMONY, BUT DID NOT CHOOSE TO DO SO,

THE CouRT TOLD COUNSEL HE COULD ASK ALL VENIREMEN

IF THEY WOULD FOLLOW THE CourT’s INSTRUCTIONS (N.T. 3).

INSTEAD HE WISHES TO ASK AN IMPROPER QUESTION

WHICH WOULD SET UP A STANDARD OF THE LAW CONTRARY

TO WHAT THE COURT’S INSTRUCTIONS PROVIDED,

As SET FORTH IN BROWN V, UNITED Srares, 338

Fep.2p 543, tHE CourT SAID “IF THE QUESTION IS PUT,

IT SHOULD INCLUDE WHETHER THE JUROR WOULD TEND TO

GIVE EITHER MORE OR LESS CREDENCE BECAUSE OF THE STATUS

OF THE OFFICER,”

THE DEFENDANT ALSO GROUNDS HIS MOTION FOR NEW

TRIAL ON THE OVERRULING OF HIS OBJECTION TO THE TES-

TIMONY OF THE WITNESS WHO TESTIFIED AS TO HOW THE

EVIDENTIARY RIFLE WAS RECOVERED BY OFFICER JAMES HARRIS

on October 14, 1973 (N.T. 254 ET sea.), OF HIS ARREST

OF FOUR YOUNG MEN IN A SPEEDING CAR FROM WHICH THE

RIFLE WAS THROWN AS IT WAS PURSUED AT RIDGE AVENUE

32A

AND CALUMET STREET ON OcToBerR 14, 1973, OFFICER HarRIS

TESTIFIED TO HIS PURSUIT OF THE AUTOMOBILE, THE DIS-

CARDING OF THE RIFLE BY ITS OCCUPANTS AND ITS RECOVERY,

IDENTIFIED AT TRIAL AS C-7, THE STOPPING OF THE CAR

AND ARREST OF THE OCCUPANTS, THREE OF WHOM RESIDED

NEAR 32ND AND BERKS STREETS, AND ONE OF WHOM WAS JAMES

Davis, 15 YEARS OLD AND RESIDENT OF 1926 NorTH 32ND

STREET, PHILADELPHIA, PA, AS RELATED BEFORE THIS

WAS IDENTIFIED BY THE POLICE BALLISTICIAN TO BE THE

SAME GUN USED TO SHOOT AND KILL Mr, SPINKS, THE DECE-

DENT IN THIS CASE. IT IS ALSO TO BE RECALLED THAT

THE DEFENDANT IN HIS STATEMENT TO THE INTERROGATING

DETECTIVE KANE, SUBSEQUENT TO HIS ARREST, SAID THAT

HE SHOT “CHUCK” OR JAMES SPINKS AND THE DAY AFTER

GAVE THE GUN (DESCRIBED AS SIMILAR TO THE C-7 RIFLE)

TO SOMEONE AND THAT THIS GANG GUN (HE BEING A GANG

MEMBER) HAD BEEN RECOVERED BY THE POLICE WHEN SOME

BOYS WERE ARRESTED WITH IT (N.T, 254-57),

THE COINCIDENCE AND SIMILARITY OF HIS ACCOUNT

OF HIS DISPOSITION OF THE RIFLE HE USED TO SHOOT MMR.

SPINKS AND RECOVERY OF A SIMILAR TYPE .22 CALIBER

RIFLE FROM BOYS, ONE OF WHOM LIVED AROUND THE CORNER

FROM WHERE HE LIVED AND WHERE HE SHOT DECEDENT, IS

TOO COMPELLING NOT TO HAVE BEEN SUBMITTED TO THE JURY,

TO AID, ALBEIT CIRCUMSTANTIALLY, TO HELP THEM DETERMINE

33A

THE TRUTH OF THE MATTER,

FINALLY, THE DEFENDANT ASSERTS AS PREJUDICIAL

ERROR THE ADMISSION OF OFFICER PAUL STANLEY'S TESTIMONY

AT TRIAL THAT IN 1972 and 1973 As A POLICEMAN HE WAS

ASSIGNED TO THE GANG ContRoL UNIT, NorTH CENTRAL

DIVISION (ENCOMPASSING THE SHOOTING SCENE), HIS KNOW-

LEDGE OF THE DEFENDANT AND JAMES Davis IN 1972 AND

1973, AND OF SEEING THEM TOGETHER IN THE SAME AREA

AND DURING THE SAME PERIOD OF TIME (N.T, 258-261),

THIS LIKEWISE IS PART OF THE CIRCUMSTANTIAL MOSAIC

THE COMMONWEALTH CONSTRUCTED IN PROOF OF ITS CASE,

DEFENDANT ASSIGNS NO REASON OR AUTHORITY IN SUPPORT

OF HIS REASON FOR THE INADMISSIBILITY OF THIS EVIDENCE

EITHER,

CAREFULLY CONSIDERED, THE GROUNDS ADVANCED BY

DEFENDANT FOR EITHER THE MOTION IN ARREST OF JUDGMENT

OR NEW TRIAL ARE INSUFFICIENT, IN THIS CourT’S VIEW,

TO REQUIRE THE GRANT OF EITHER MOTION,

BY THE COURT:

J.

DATED: August 17, 1976

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