Petition for Writ of Certiorari — Pennsylvania v. McDade

LIBRARY § i

Suprenve Court, U. 8

SUPREME coil

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IN THE

Supreme Court of the United States

No. October Term, 1975 v4 5 - “4 4 ] '

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

Vv.

JOHN McDADE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

JOHN J. HICKTON,

District Attorney of Allegheny County,

Attorney for Petitioner.

Rosert L. EBERHARDT,

Assistant District Attorney,

Of Counsel,

401 Courthouse,

Pittsburgh, Pennsylvania 15219.

BATAVIA TIMES, APPELLATE COURT PRINTERS <>

EDWARD W. SHANNON, SENIOR REPRESENTATIVE

HAROLD L. BERKOBEN, REPRESENTATIVE

1701 PARKLINE DOR., PITTSBURGH, PA. 18227

412-681-7463

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INDEX.

Page

Opinions Below ............025se seer renee eee eee es l

Statement of Jurisdiction ...........6 6650s eee eee eee 2

Statement of Question Involved ............-+++5: me Pp

Constitutional Provisions Involved ............5++++: 2

Statement of the Case...... 02.6... eee eee ee eee teens 2

ArQuMeNt ... 0. eee eee eee eee eee e ee eeees 6

Reason for Allowance of Writ............+++: 6

The Pennsylvania Supreme Court erred in ap-

plying the “Fruit of the Poisonous Tree Doctrine”’,

as the voluntary nature of the subsequent statement

given to Respondent's friends while no police were

present was sufficient to purge the taint of the

original questioning .............eess0eee sree 6

cre were Ae eres Pee rer ee eh yes ns 8

Appendix “A”—Opinion of the Court of Common Pleas

of Allegheny County, Pennsylvania by Judge Clarke 9

Appendix “B"—Majority and Dissenting Opinion of the

Supreme Court of Pennsylvania in Commonwealth v. é

hc ache baie axe ap ou oe me ie 25

TABLE OF CITATIONS.

Bivens v. Six Unknown Agents, 403 U.S. 388, 413 (1971) 7 ’

Commonwealth v. McDade, .... Pa. ...., .... A.2d F

ae CIS ake San SAG Cd hws Seen Seiwa d ces dan thes | |

Wong Sun v. United States, 371 U.S. 471, 488 (1963). 6 ;

:

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II.

CONSTITUTION.

United States Constitution:

IN THE

Supreme Court of United States

a ccaes October Term, 1975

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

v.

JOHN McDADE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

To the Honorable, The Chief Justice and The Associate

Justices of the Supreme Court of The United States:

Petitioner, the Commonwealth of Pennsylvania, by its At-

torneys, JOHN J. HICKTON, District Attorney of Allegheny

County, Pennsylvania, and ROBERT L. EBERHARDT,

Assistant District Attorney, respectfully prays that a Writ of

Certiorari issue to review the Opinion of the Supreme Court

of Pennsylvania entered in this proceeding on July 7, 1975,

relating to the Respondent, John McDade.

Pursuant to Rule 23 of this Honorable Court, your

Petitioner respectfully represents as follows:

Opinions Below

COMMONWEALTH v. McDADE

The Opinion of the Court of Common Pleas of Allegheny

County appears in Appendix “A” hereto.

The Opinion and dissenting Opinion of the Pennsylvania

Supreme Court, Commonwealth v. McDade, .... Pa. ....,

.... A.2d .... (1975) appears in Appendix “B” hereto.

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Statement of Jurisdiction

The Opinion of the Supreme Court of Pennsylvania was en-

tered on July 7, 1975, and this Petition was filed within ninety

(90) days of that date. The jurisdiction of this Honorable

Court is invoked under 28 U.S.C. Section 1257(3).

Statement of Question Involved

Whether the Pennsylvania Supreme Court erred in applying

the “fruit of the poisonous tree” doctrine, as the voluntary

nature of the subsequent statement given to the Respondent's

friends while no police were present was sufficient to purge

the taint of the original questioning?

Constitutional Provisions Involved

The Fifth Amendment to the Constitution of the United

States in pertinent part provides:

“No person. . . shall be compelled in any criminal case

to be a witness against himself”

The Fourteenth Amendment to the Constitution of the

United States in pertinent part provides:

“Nor shall any state deprive any person of life, liberty,

or property, without due process of law.”

Statement of the Case

Respondent was indicted at No. 4039A May Sessions. 1973

on a bill charging counts of Murder, Voluntary Man-

slaughter, and Involuntary Manslaughter. On January 21,

1974, a hearing was held on the Respondent’s oral application

to suppress any and all statements, written or oral, made by

the Respondent. Respondent was represented by counsel of

the Public Detender’s Office of Allegheny County, Penn-

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sylvania. On January 22, 1974 the Honorable James F. Clarke

entered an Order granting the Respondent's Application to

Suppress.

On January 24, 1974, the Commonwealth of Pennsylvania

filed an appeal with the Supreme Court of Pennsylvania,

Western District, at No. 83 March Term, 1974, from the Or-

der of the Court of Common Pleas of Allegheny County dated

January 22, 1974. The appeal was presented to the Supreme

Court of Pennsylvania at its Session at Pittsburgh, Penn-

sylvania during the month of September, 1974. On July 7,

1975, a majority of the Pennsylvania Supreme Court held that

the “Fruit of the Poisonous Tree” Doctrine applied to the

statements given by the Respondent voluntarily to two female

friends during a requested conversation. In so doing, the

Pennsylvania Supreme Court modified the Order of the Sup-

pression Hearing Court by excluding from the lower court

Order a statement given by the Respondent to a fellow-in-

mate. As so modified, the Order of the lower court was af-

firmed. Mr. Justice Nix filed a dissenting opinion in which he

indicated that a direct causal connection between the

Respondent's initial statement and Respondent's statements

to his female friends was not established. The majority and

dissenting opinions of the Pennsylvania Supreme Court are

attached hereto as Exhibit “B”.

The facts surrounding the Respondent’s arrest and his

giving of various statements can be adequately summarized as

follows:

On June 8, 1972, the body of Joseph Wells, age 14 years,

was found lying in a creek in Harrison Township, Allegheny

County, Pennsylvania. The deceased had his hands wired

behind his back and had been shot three (3) times. Local

police and Allegheny County detectives immediately launch-

ed an intensive investigation. During that investigation, the

name of John McDade was mentioned as being possibly the

person last to have seen Joseph Wells alive.

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On July 13, 1972, Allegheny County Detective Joseph Start

briefly interviewed Respondent at the Tarentum Borough Jail

where he was being held on an unrelated summary conviction

awaiting transfer to the Allegheny County Jail to serve time

for failure to pay a fine (T. 55).

The following day, Friday July 14, 1972, Respondent was

transferred to Allegheny County Jail (T. 53). At ap-

proximately 10:30 A.M., Allegheny County detectives

removed him from the Allegheny County Jail and he was

taken by them to the Fourth Floor of the Courthouse and ws

subjected to an interview and interrogation for a period ot

approximately eight and one-half hours or until 7:00 P.M. of

that day at which time he was returned to the County Jail.

During this period, he was interviewed by detectives, had

lunch, was administered a polygraph test, and was taken to

the White Tower Restaurant for supper (Judge’s finding of

fact No. 7).

Two days later on Monday, July 17, 1972 at approximately

10:30 A.M., Allegheny County detectives again removed

Respondent from the County Jail and took him first to the

Detective “»-eau Headquarters in the Courthouse and

ultimately by automobile to the Millvale Borough Municipal

Building for questioning (T. 59). At about 12:00 noon, after

having arrived at the Millvale Borough Police Station,

Respondent was informed of his constitutional rights, given

his constitutional warnings, and he executed a valid waiver in

writing at that time (Judge’s finding of fact No. 10). This

period of police custodial interrogation continued for ap-

proximately sixteen hours or until 2:50 A.M. the following

morning, July 18, 1972. During this time, Respondent made

several incriminating statements to police officers, finally

culminating in a seven-page typewritten confession and a two-

page supplement to that confession which was signed by

Respondent. Respondent was then returned to the County

Jail.

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About nine hours later, at noon on July 18, 1972, Respon-

dent was taken by Captain Start and Detective Finello to the

New Kensington home of two women-friends of his: one Jody

Delacroix and Jerry Weir, and during the visit to these friends

while out of earshot of the police officers he made certain in-

criminating statements to them. These two women were close

friends of Respondent (T. 84),' and he indicated that they

could give the correct name of a person who had supplied him

with the weapon which he used to commit the murder. He

also indicated that he wished to see them on a personal matter

(T. 85). The visit was made to their apartment at the request

of Respondent and because he wanted to “sit down and talk

with them and tell them about this charge that was then pend-

ing against him” (T. 85).

While police officers remained in the living room of the

apartment, Respondent and his friend Jody requested per-

mission to talk alone and were permitted to go to another

room for a period of fifteen to twenty minutes (T. 87). Jerry

intermittently went into the other room during that period. It

was during this period of time, out of earshot of the police of-

ficers, that the incriminating statements were made by

Respondent to his friends. After Respondent’s visit to his

friends was concluded, Respondent was then taken by police

officers to several places near the scene of the crime and was

finally returned to the Allegheny County Detective Bureau

and thence to the jail at approximately 2:00 A.M. on July 19,

1972.

The trial court issued a blanket suppression order as to all

statements made by Respondent. Petitioner appealed to the

Supreme Court of Pennsylvania alleging that the statements to

the girls were not obtained by police questioning, and should

not have been suppressed. The Court held, inter alia, that

' Numerals in parentheses preceded by the letter “T" refer to the pages

of the Hearing Transcript.

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Petitioner failed to prove the statement to the girls was

purged of the taint of the original illegal questioning.

ARGUMENT

REASON FOR ALLOWANCE OF WRIT

I. The Pennsylvania Supreme Court erred in applying

the ‘Fruit of the Poisonous Tree Doctrine”, as the volun-

tary nature of the subsequent statement given to Respon-

dent’s friends while no police were present was sufficient

to purge the taint of the original questioning.

The question presented by Petitioner involves the Penn-

syivania Supreme Court’s application of the “Fruit of the

Poisonous Tree” Doctrine. As stated by your Honorable

Court the test to be applied 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 in-

stead by means sufficiently distinguishable to be purged

of the primary taint.

Wong Sun v. United States, 371 U.S. 471, 488

(1963).

Petitioner has consistently conceded that the statements

given directly to the police, following custodiai interrogation

without Miranda warnings, must be excluded. The statements

were clearly obtained by exploiting the original questioning.

The statement given by Respondent to his friends is another

matter. Petitioner contends that the statement was voluntarily

given, and as such, an independent act of the Respondent's

free will. Wong Sun v. United States, supra, at 486. Respondent

was taken to the friends’ house at his own request. No police

were present during the discussion between the girls and

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Respondent. The record is simply void of any evidence of

police exploitation.

This problem has arisen because the trial court failed to

make a specific finding of tact on this point. As a result, the

Pennsylvania Supreme Court was required to act as the fact

finder, with the majority and dissent having opposing views.

Your Petitioner submits that the Dissenting Opinion by Mr.

Justice Nix more adequately reflects the true record.

If Petitioner is correct on the lack of police exploitation,

exclusion is improper. As stated by Mr. Chief Justice Burger,

dissenting:

The exclusionary rule has rested on a theory that

suppression of evidence in these circumstances was im-

perative to deter law enforcement authorities from using

improper methods to obtain evidence.

Bivens v. Six Unknown Agents, 403 U.S. 388, 413

(1971).

There was no “exploitation” in allowing Respondent to

discuss his situation with friends. The statement should be

held to be constitutionally admissible.

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Conclusion

The Commonwealth asserts that the failure of the Penn-

sylvania Supreme Court to recognize the controlling decisions

of your Honorable Court in the instant situation was con-

stitutionally infirm. For the reasons stated above, it is urged

that the Petition be granted or, in the alternative, that the

Pennsylvania Supreme Court be summarily reversed.

Respectfully submitted,

JOHN J. HICKTON,

District Attorney of Allegheny County,

Attorney for Petitioner.

Robert L. Eberhardt,

Assistant District Attorney,

of Counsel.

401 Courthouse,

Pittsburgh, Pa. 15219.

PENANCE IR NEN TAFT NRT NE TIE emp eee |

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Appendix “A”—Opinion of the Court of Common Pleas

of Allegheny County

OPINION

(Filed: February 26, 1974.)

CLARKE, J.

On or about June 8, 1972, in Allegheny County, Penn-

sylvania, the body of Joseph Wells was found under cir-

cumstances indicating his life had been taken by criminal

means and defendant, John McDade, was eventually charged

and indicted for the alleged homicide.

On Monday, January 21, 1974, a hearing was held on oral

application of defendant's attorney to suppress any and all

statements, written or oral, made by defendant. After hearing

the suppression, court ruled in defendant's favor, ordering

that any statement of defendant obtained on or after July 14,

1972, be suppressed.

REVIEW OF TESTIMONY

During the course of its investigation, the Homicide

Division of the Allegheny County Detective Bureau,

specifically Captain Joseph Start, saw and spoke to defendant

while defendant was lodged in jail in the Borough of Taren-

tum Police Station on charges unrelated to the Wells’

homicide. The encounter took place at 8:00 P.M. or 9:00 P.M.

on Thursday, July 13, 1972, while defendant was inside the

jail cell and Captain Start was outside the cell. Captain Start

testified at a Suppression Hearing that at that time he did not

suspect defendant as the perpetrator of the homicide, but that

the interview was one of many made of a number of persons

following the discovery of the body during the course of the

early part of the ‘vestigation.

On cross-examination Captain Start said he learned from

defendant during their initial talk at Tarentum Police Station

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Appendix “A"—Opinion of the Court of Common

Pleas of Allegheny County.

that defendant had seen Joseph Wells about 7:00 P.M. or 7:30

P.M. on the evening of what was thought to be the last day the

victim was seen alive and that defendant might have been the

“last one who had seen him.”

The next day, Friday, July 14, 1972, defendant was brought

from Tarentum jail to the County Detective Bureau, where

Captain Start again interviewed him at 10:30 or 10:45 A.M.,

with a Detective Miller present who also interviewed defen-

dant. Again at this time, Captain Start testified that he did not

suspect defendant of the homicide. Defendant remained at

the Detective Bureau and had lunch there, remaining until

4:30 P.M. Defendant was not free to leave the Bureau because

he was to be committed to the County Jail on the unrelated

summary charge which had led to his incarceration in Taren-

tum Police Station. He was to serve two weeks in the County

Jail.

During the period time from 10:30 A.M. until 4:00 P.M. on

July 14th, accounting for the time according to Captain Start,

arrangements were made for defendant to be given a poly-

graph test, and he was interviewed by the two detectives. The

polygraph test was administered by the Director of the Al-

legheny County Crime Laboratory sometime after 4:00 P.M.,

and defendant was taken to a White Tower restaurant for sup-

per and then lodged in County Jail after 7:00 P.M.

Captain Start next saw defendant on Monday, July 17,

1972, obtaining a court order for his release from County Jail

to be brought to the Detective Bureau again on the fourth

floor of the Courthouse where he arrived about 10:30 A.M.

Captain Start testified that up until this time defendant was

not yet under suspicion nor was he arrested for the Wells’

homicide, but that because of the presence of newsmen and

television cameramen at the Detective Bureau, he directed

a

Appendix ““A"—Opinion of the Court of Common

Pleas of Allegheny County.

detectives Finello, Ringel and Miller to take defendant away

from the Courthouse to question him at the Millvale Borough

Police Station where there “would be more privacy” and then

to take him to Fawn Township, the scene of the alleged

homicide for defendant to point out the place where defen-

dant had claimed he saw the victim alive shortly prior to

discovery of the body.

On cross-examination, Captain Start said he had instructed

the detectives to stop on the way out to Fawn Township, “and

get the whole story from him out there at the Millvale Police

Station . sd

Captain Start then said he received a telephone call from

one of the three detectives around noon that day, from the

Millvale Police Station, reporting that defendant made an in-

criminating statement, after which Start next saw defendant at

the homicide scene about 3:00 P.M. Defendant was then in the

back seat of Detective Finello’s car, crying, with his elbows

on his knees and bent over with his head between clenched

fists.

Captain Start spoke to defendant and asked him if he knew

his “rights and defendant said that he did and then told Cap-

tain Start information “implicating himself”, and gave a

statement relating “what happened there”, and pointed to an

area in a creek where “he threw the gun.” At this point, Fawn

Township Police Officer Durochia, also at the scene, said he

had known defendant for some time and received Start’s per-

mission to talk with defendant.

After some time, all of the officers and the defendant went

to the Fawn Township Municipal Building. Defendant asked

to see his mother. Defendant's mother and sister were brought

to the Municipal Building about 9:00 P.M. where the three of

aitpel. ARAN RETAIN AE NIE FLL IL EI PE ATOR DAMN AG OO NER ORR SNE NY epee at

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Appendix ‘‘A‘’—Opinion of the Court of Common

Pleas of Allegheny County.

them talked for an hour, more or less, during which deten-

dant made “inculpatory statements.”

At 10:00 P.M. the officers and defendant left the Municipal

Building to return to the Detective Bureau, stopping on the

way for something to eat. At the Detective Bureau, Captain

Start asked defendant “if he would care to make a statement

concerning what he had toid us and defendant indicated he

would.” That statement was marked as Commonwealth’s Sup-

pression Exhibit One, and was dated July 18, 1972, and timed

at 12:26 A.M., taken in Captain Start’s office in the Court-

house. During the course of interrogation which produced

the statement, Captain Start advised defendant, “John, on

Thursday, June 8, 1972, at approximately 7:20 P.M., the body

of Joseph Wells, white male, age 14 of Sheldon Park, Natrona

Heights in Harrison Township was lying in a creek off Howes

Run Road, Fawn Township, Pennsylvania. He, the victim,

Joseph Wells was fatally shot. You are now under arrest and

charged with the murder of this fatal shooting. Do you clearly

understand this?” This statement, Exhibit One, included a

supplement, given at 2:50 A.M., to the original statement of

two pages, there being nine pages altogether, typewritten,

signed and initialed by defendant.

Then on Wednesday, July 19, 1972, “in the early hours,”

Captain Start received from defendant, in the Detective Bu-

reau, a statement handwritten by defendant, consisting of

four pages on yellow legal pad paper, single spaced, which

was marked as Commonwealth's Exhibit Two. This hand-

written statement was apparently given shortly after midnight

on July 19, 1972, and came about as a result of information

learned from the defendant's statement of the previous day.

In the meantime, defendant was taken from County Jail to

New Kensington, Westmoreland County, where he arrived at

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13

Appendix “A"’—Opinion of the Court of Common

Pleas of Allegheny County.

1:00 P.M. at the home of two women friends of his, Jody

Delecroix and Jerri Weir. He was taken there by Captain Start

and Detective Finello.

Jody and defendant spoke privately for 15 or 20 minutes,

during which defendant made to Jody what Captain Start said

he later learned were “some inculpatory statements”, which

he then repeated in the presence of Start, Finello, Jody and

Jerri, while seated in the bedroom.

CLE IOP SLO AGEING SHED II SRO AAS

Following this episode, on the basis of information learned

during it, the officers and defendant went to the residence of

one Johns, at R. D. No. 2, Saxonburg, and confiscated two

22 caliber rifles, one of which, defendant said, was “The one

he used to shoot Joey Wells with.”

VRE

On the way back to the Courthouse from Saxonburg, at

defendant's request, Captain Start arranged for defendant to

meet and talk with his brother and sister-in-law at a firehall

in Fawn Township, at the end of which meeting Captain Start

asked defendant's brother, “Has he told you what he did?” to

which the brother replied, “Yes, but | don’t believe it.”

It was following this, upon arrival at the Detective Bureau

in the Courthouse, when the handwritten statement, Exhibit

No. Two was made by defendant.

Then Captain Start related an encounter with one Richard

Jones in the County Jail on November 1, 1972, and received a

statement from Jones which was said to have been made by

defendant to Jones and to be of an inculpatory nature. And

then again on January 18, 1973, Jones delivered to Start a let-

ter or note which is said to incriminate defendant.

Captain Start related that he had informed defendant he

was under arrest on July 18, 1972, but that defendant was not

Loreriaretnee wore

I OLS PL AE ROLL Si SLOT NEN RET: WII te NIE IG LR BGR I LOA ED PE ery eel

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Appendix “‘A"—Opinion of the Court of Common

Pleas of Allegheny County.

arraigned on the charge of homicide of Joseph Wells until

April 23, 1973, more than nine months later.

Detective Finello testified that he was assigned to remove

defendant from County Jail to the Detective Bureau on July

17, 1972, from whence he, Detectives Ringel and Miller took

defendant to Millvale Police Station, shortly before noon. In

the car, on the way, Finello said there was “speaking, getting

acquainted with the defendant,” and whether or not defen-

dant knew the victim, and that defendant had said, “he didn’t

like Joey Wells,” and “that he hated him.”

Upon arrival at Millvale Police Station, the group entered

the Chief’s Office and Detective Ringel “informed Mr.

McDade of his rights”. Then Finello left the room to have

lunch and upon his return about 1:00 P.M. Detective Ringel

informed him “that he received a confession,” and that

defendant was crying. Commonwealth's Suppression Exhibit

No. 3 was marked and said by Finello to contain the “rights

warnings” and a waiver of rights signed by defendant.

Finello said that after the confession at Millvale, Detective

Ringel accused defendant of the killing, although his

testimony as to whether or not defendant was then and there

placed under arrest for the homicide was unclear, although

Finello did acknowledge that defendant was still in custody

for the summary offense for which he had been committed to

Allegheny County Jail.

Fawn Township Police Officer Donald Durochia testified

that he was engaged in a search of the area surrounding the

place where the victim's body was found on July 17, 1972 and

saw defendant arrive in a detective’s car, about 3:00 or 4:00

P.M. Between six and seven o'clock P.M., Durochia took

defendant from the car to the bank of the creek where the vic-

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Appendix “4"—Opinion of the Court of Common

Pleas of Allegheny County.

tim’s body had been found and, “I asked him if he understood

his rights. and if his rights had been given to him, and if they :

were. did he understand them. and he said he did.” Then

Durochia said defendant gave him a statement inculpating

himself.

From a stipulation entered into by counsel and trom the

reading by the court into the record of data from the Com-

plaint, it appears that Joseph J. Start signed a Complaint on

April 23, 1973, charging John McDade with the murder of

Joseph Wells and that preliminary arraignment was held

before a Deputy Coroner the same day and that Coroner's

Inquest was held on May 2, 1973.

LEON TALN LEEL ELD OPE LOE MT ETE Be

The testimony of Dr. E. H. Davis, Director and Chief

Psychiatrist of the Behavior Clinic, was taken on request of

defendant's counsel. A written report of Doctor Davis, which

was made available to defense counsel at the suppression

hearing, was dated December 18, 1973. From this report it ap-

pears that defendant was examined by various staff members

of the clinic in June and October, 1972, April, May and

December of 1973. The report states that “defendant is a

physically healthy 21 year old single white man who has never

been insane or psychotic and is of low-average intelligence

with a ninth grade education. He should be criminally

responsible for his behavior and he most certainly has the

capacity to be tried.” Doctor Davis referred to the defendant

as mendacious and emotionally unstable.

The defendant did not offer any testimony himself, nor any

witness other than Doctor Davis.

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Appendix ““A’’—Opinion of the Court of Common

Pleas of Allegheny County.

FINDINGS OF FACT

1. Defendant, John McDade, is a competent 21 year old

man of low-average intelligence with a ninth grade education.

2. On Thursday, June 8, 1972, at about 7:20 P.M., the

body of Joseph Wells, white male age 14, of Sheldon Park,

Natrona Heights, Harrison Township, Allegheny County,

Pennsylvania, was found in a creek in Fawn Township, Al-

legheny County, Pennsylvania, dead as a result of gunshot

wounds.

3. From June 8th to July 13, 1972, Allegheny County

Detectives and local police conducted an investigation into

the death of Joseph Wells (R. 49).

4. During the course of the investigation, Detective Cap-

tain Start heard the name of John McDade, defendant, men-

tioned, and that he was lodged in Tarentum Jail on a unre-

lated charge.

5. Captain Start interviewed defendant at about 9:00

P.M., July 13, 1972, the defendant being in custody ina cell at

Tarentum Jail at the time, and no constitutional warnings

were given, nor was defendant advised of his constitutional

rights regarding silence and the right to counsel.

6. During the interview of July 13, 1972, Captain Start

learned that defendant knew deceased and may have been

among the last of persons to see Joseph Wells alive (R. 50,

52). (Defendant’s Statement No. 1).

7. The next morning, July 14, 1972, defendant was trans-

ferred from Tarentum Jail to the Allegheny County Jail to

serve a two week sentence on the unrelated charge of a sum-

mary offense, and at about 10:30 A.M. on July 14, 1972, was

17

Appendix ““A"—Opinion of the Court of Common

Pleas of Allegheny County.

removed from the County Jail in the custody of two County

Detectives and taken to the office of Captain Start in the

Detective Bureau on the fourth floor of the Courthouse,

where he was questioned and interviewed by Captain Start

and Detective Miller, without being given constitutional

warnings nor advised of constitutional rights. Defendant :

remained in custody of the detectives on July 14, 1972, until )

he was returned to County Jail at about 7:00 P.M. During this

approximately 8-1/2 hour period he was interviewed by the j

detectives, had lunch'in the Detective Bureau, was ad-

ministered a polygraph test by the Crime Laboratory and was 4

taken to a White Tower restaurant for supper (R. 56, 57). '

(Defendant’s Statement No. 2).

8. At about 10:30 A.M. on July 17, 1972, defendant was

again removed from County Jail by County Detectives and in ;

their custody was brought again to the Detective Bureau in the :

Courthouse, but upon Captain Start’s instructions there, he

‘ : J

was taken by automobile in custody of three County Detec-

tives to the Millvale Borough Municipal Building for

questioning (R. 60).

9. En route to Millvale, in the detective’s car, the defen-

dant was asked questions concerning the victim (R. 121) to

which he gave responses without as yet having been given con-

PE ONT &

stitutional warnings or informed of his constitutional rights. :

10. At the Millvale Borough Building to which he was t

taken for questioning, defendant was informed of his consti- ;

tutional rights and given constitutional warnings, which he '

waived in writing (Suppression Exhibit No. 1), at 12:00 Noon }

on July 17, 1972, and thereafter made an inculpatory state- ¢

ment to Detective Ringel (R. 124, 125). (Defendant's State-

ment No. 3). ‘

*

5

menses le 5/1 ROSIN IS RIE NE AE AOE NOTE SLES RO LEE IE LEA DLA LAL EEE ALL RAE A

EILEED

a POOR COPY

18

Appendix “‘A’’—Opinion of the Court of Common

Pleas of Allegheny County.

11. Three hours later at the scene of the alleged homicide,

to where defendant was transported from Millvale, defendant

made another inculpatory statement to Captain Start (R. 67).

(Defendant's Statement No. 4).

12. Defendant and the detectives remained in the vicinity

of the scene of the alleged homicide for about three hours and

at 6:00 P.M. defendant made an incriminating statement to

Fawn Township Officer Durosha (R. 145). (Defendant's

Statement No. 5).

13, Several hours later, still on July 17, 1972, defendant

was at the Fawn Township Municipal Building. At his re-

quest, the officers brought defendant's mother and sister to

the Municipal Building where he was allowed to speak with

them and was overheard by the officers making incriminating

statements to them (R. 71, 146). (Defendant's Statement No.

6).

14. Defendant was transported from the Fawn Township

Municipal Building in the detective’s car and still in their

custody to the Detective Bureau in the Courthouse, where at

12:26 A.M., July 18, 1972, he was reminded of his rights by

Captain Start (R. 73), told he was under arrest for the Joseph

Wells’ homicide by Captain Start, and a seven page type-

written confession was signed by defendant (R. 72, ef seq.). At

2:50 A.M. on July 18, 1972, this confession was supplemented

by two additional typewritten pages signed by defendant (R.

81). (Defendant's Statement No. 7).

15. Defendant had been removed from County Jail by the

County Detectives at 10:30 A.M. on July 17, 1972, and re-

mained constantly in their custody until he was returned to

County Jail sometime after 2:50 A.M. on July 18, 1972,

following his signing a nine page typewritten confession,

representing a period of about 16 hours.

~~

Wee OTR

19

Appendix “A’’—Osinion of the Court of Common

Pleas of Allegheny County.

16. On July 18, 1972, about noon, or about nine hours af-

ter having signed the confession and having been returned to

County Jail, defendant was taken by Captain Start and Detec-

tive Finello to the New Kensington home of two women

friends, Jody Delacroix and Jerry Weir to whom he made in-

criminating statements (R. 87). (Defendant's Statement No.

8).

17, From New Kensington, defendant was taken by the

detectives to a John’s residence, Saxonburg, where two .22

caliber rifles were confiscated, one of which defendant said

was the one he used to shoot Wells (R. 90).

18. From Saxonburg, defendant was taken to a firehall in

. awit ashine agen ;

Fawn Township where he was allowed to visit with his brother 4

and from there to a farm area where a search was made for f

; ; ; t

wire which was supposed to have been used to bind the vic- i

tim’s hands (R. 91), and then defendant was returned to the ¢

Detective Bureau in the Courthouse. é

19. At 2:00 A.M. on July 19, 1972, defendant made a writ-

ten confession in his own handwriting, consisting of four

pages, signed by him and witnessed by the County Detectives;

this confession being made in the Detective Bureau, about 14

| hours after he had been removed from jail for the new Ken-

sington visit, and defendant being in continuous custody of

the detectives during that time (Defendant's Statement No. 9). i

20. Defendant was released from County Jail on July 28,

1972, having served his time for conviction of a summary of- :

fense. ;

21. On November 1, 1972, Richard Jones, a prisioner in :

County Jail gave the detectives a report of an incident in é

which defendant, according to Jones, incriminated himself to i

the Wells killing (R. 94). t

.

;

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E| FED THROUGH POOR COPY

NAGA AREER MT I |) OE

20

Appendix “4"—Opinion of the Court of Common

Pleas of Allegheny County.

22. On April 23, 1973, defendant was formally charged

with the murder of Wells, Captain Start being the affiant on

the complaint, whereupon he was arrested and preliminarily

arraigned the same day, and on May 2, 1973, held for court

on a charge of murder following Coroner’s inquest.

23. Defendant was continuously in custody from July 13,

1972 until July 28, 1972, and was advised of his rights for the

first time at 12:00 Noon on July 17, 1972 at Millvale Station.

24, Defendant was placed under arrest by Captain Start at

about 12:30 A.M. on July 18, 1972, but was not arraigned un-

til April 23, 1973, more than nine months later.

CONCLUSIONS.

Although defendant was not in custody in the Tarentum

Jail as a result of any suspicion of or charges of the Wells’

homicide on July 14, 1972, he was, in fact, in custody.

McDade was in a jail cell and Start spoke to him through the

bars from outside the cell. McDade’s name had come to Cap-

tain Start’s attention during his investigation of the homicide

and he went to the Tarentum Jail specifically to question

defendant about the case, although Start disclaimed that he

had any suspicion of McDade at that time. In these circum-

stances it appeared to the court from all of the circumstances

that defendant should have been given the MIRANDA warn-

ings prior to the interview. McDade’s name was known to

Start as a result of his investigation and Start went to Taren-

tum Jail specifically to ask him about Wells and the shooting.

In Mathis v. United States, 391 U.S. 1, 88S. Ct. 1503 (1968), an

Internal Revenue agent failed to give the defendant the

Miranda warnings when questioning him about his prior in-

come tax returns while petitioner was incarcerated in a state

we - P .

Wr ey hs tah ad ae ei el ell LPG Me RONG HEN ty RT PN AYES RL ON

Lert # Fe, ae A Se pera ha Aad Ey) yah a he

nor

ee eee aera. Eh ae i Se att ns eet ee aunmesemncts

21

Appendix ‘‘A’’—Opinion of the Court of Common

Pleas of Allegheny County.

jail serving a state sentence. The prosecution maintained that

Miranda was not applicable because, (1) the questioning was

part of a “routine tax investigation” and (2) defendant had

been jailed by the interrogating officers but was there for an

entirely different offense. The Supreme Court of the United

States declared these “differences ... too minor and shadowy

to justify a departure from the well-considered conclusion of

Miranda with references to warnings to be given to a person

held in custody.” Start’s interview with McDade in the Taren-

tum Jail was custodial interrogation, and the omission of

Miranda warnings renders inadmissible any information ob-

tained on that occasion.

“The admissibility of the instant confession is con-

trolled by Miranda v. Arizona, 384 U.S. 436, 86S, Ct. 1602

(1966). There the United States Supreme Court held: ‘To

summarize we hold that when an individual is taken into

custody or otherwise deprived of his freedom by the

authorities in any significant way and is subjected to

questioning, the privilege against self-incrimination ts

jeopardized. ... He must be warned prior to an) question-

ing that he has the right to remain silent, that anything he

says can be used against him ina court of law, that he has

the right to the presence of any attorney, and that if he

cannot afford an attorney, one will be appointed for him

prior to any questioning if he so desires. Opportunity to

exercise these rights must be afforded him throughout the

interrogation ... (emphasis added).” Com. v. Ware, 438

Pa. at 519, 520 (1970).

In footnote 3 on page 520 of Com. v. Ware, supra, the Court

says:

“The requirement that warnings be given before in-

terrogation begins was emphasized throughout Miranda.

Ea hares “t IRL PAV OP

22

Appendix “A°—Opinion of the Court of Common

Pleas of Allegheny County.

E.g.: “(Df a person is to be subjected to interrogation, he

must first be informed in clear and unequivocal terms that

he has a right to remain silent.’ 384 U.S. at 467-68, 86

S.Ct. at 1624 (emphasis added). ‘The principles an-

nounced today deal with the protection which must be

given to this privilege against self-incrimination when the

individual is first subjected to police interrogation. ... It

is at this point that our adversary system of criminal

proceedings commences ...° 384 U.S. at 477, 86 S.Ct.

at 1629 (emphasis added).”

On the matter of whether defendant was interrogated

initially as a suspect or not, and whether or not warnings were

required at Tarentum Jail and the Detective Bureau the next

day, the physical aspects of almost daily interrogation for

long hours is significant. One session lead to another and

eventually a confession was obtained.

“The Commonwealth argues that up to the moment

Banks first admitted this participation in the crime, he

was merely being questioned ‘as a witness’ to a crime and

it was unnecessary to advise him of his right to remain

silent so long as this role continued. With this we cannot

agree. The appellation given the individual questioned is

not controlling. Otherwise the police could evade the

procedural safeguards required by Escobedo, supra, and

Miranda, supra, to protect one’s privilege against self-

incrimination as ‘a witness’. If questioning is initiated

and pursued during custodial interrogation, proper

warning of constitutional rights is first required, Miranda

v. Arizona, supra. While the courts of other jurisdictions

have experienced difficulty in determining whether

questioning under certain circumstances constitutes

‘custodial interrogation,’ there is universal agreement

FSS RODEN GALEN TNR, IRE TE IY EP

SANE Be MT a) are REHM.

mse eo

23

Appendix ‘“‘A"—Opinion of the Court of Common

Pleas of Allegheny County.

that if the police questioning occurs under an atmosphere

or circumstances which leave the individual no freedom

or choice and which are inherently coercive, this is

‘custodial interrogation’ ...” Com. v. Banks, 429 Pa. 53,

58, 59 (1968).

The court believes that the initial taint or defect in the

method of obtaining information from the defendant by the

County Detectives was perpetuated in the experience of the

defendant on July 14, 1972, when he was interviewed in the

Detective Bureau and given a polygraph test, without any in-

dication in the record of Miranda warnings having been

given. On this occasion defendant was taken from County Jail

and kept in the Detectives’ custody for more than eight hours.

This had all the appearance of serious and searching

questioning, even if not continuously for the eight hour

period, and considering the experience of the interrogation,

the previous evening at Tarentum Jail, and defendant's

custodial status, he should have been given constitutional

warnings.

The first occasion in the record where it appears defendant

was appropriately warned was at 12:00 Noon on July 17, 1972,

at Millvale Police Station, at the time defendant made a con-

fession to Detective Ringle. The court feels that the initial

taint of failure to warn at Tarentum on July 13, 1972 and at

the Detective Bureau on July 14, 1972, so permeated defen-

dant’s status that it was not removed by the rights warning

given at Millvale, and that his confession there and sub-

sequent statements were rendered inadmissible.

“The final question is whether or not the recorded

statement admitted in evidence secured after Banks was

advised of his right to remain silent was purged of the

original illegality. We conclude not ... ‘a statement or

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24

Appendix ‘‘A"—Opinion of the Court of Common

Pleas of Allegheny County.

confession made subsequent to another confession of in-

criminating admission obtained absent a required warn-

ing of constitutional rights may not be used as evidence,

unless it is first established that the last statement or con-

fession was not the exploitation of the original illegality

and was obtained under circumstances sufficiently dis-

tinguishing to purge it of the original taint.’ Com. v.

Banks, 429 Pa. 53, at pp. 58, 59 (1968). See also Com. v.

Burdner, 432 Pa. 405 (1968).

While there may be an arguable issue that defendant was

placed under arrest by Detectives Ringle and Finello at

Millvale Police Station, it appears uncontradicted that Cap-

tain Start placed defendant under arrest shortly after mid-

night on July 18, 1972, in the Detective Bureau at the Court-

house, and accused him of fatally shooting Joseph Wells. It is

also uncontradicted that defendant was not arraigned on this

charge until April 23, 1973. The delay during an interval of

nine months plus five days between arrest and arraignment

was not justified by the Commonwealth and therefore all

evidence obtained during the period of unnecessary delay,

having a reasonable relationship to the delay, must be ex-

cluded. Com. v. Futch, 447 Pa. 389 (1972). Com. v. Dutton, 453

Pa. 547 (1973); Com. v. Wayman, 454 Pa. 79 (1973). Pa. R.

Crim. Procedure 130.

THEREFORE, the suppression court is of the opinion that

any evidence obtained from the time of arrest on July 18, 1972

until arraignment on April 23, 1973, is inadmissible under

Rule 130, and furthermore, because of failure to give ade-

quate and appropriate constitutional warnings at the outset,

all statements made by defendant are inadmissible.

JAMES F. CLARKE.

ore PRIEST GER EE SERIE SLES OLN GLE IIE IO LL LE TEE SINE

s » , =a _ — ~ - wore 2 ee ~ OE Sh EL eT

oes ee OR AEE Sat IAA OER PAR SELLS SELLERS BE WLI RE GS a 2 eee CRED — ~

} 4

:

25

Appendix “B’’—Opinion of the Pennsylvania

Supreme Court

[J. 338]

—

IN THE SUPREME COURT OF PENNSYLVANIA

Western District

COMMONWEALTH OF PENNSYLVANIA,

Appellant,

LIGRS REL! LCE SIEGES Ae It o>

V.

JOHN McDADE.

ie need

No. 83 March Term, 1974

Appeal from the Order of the Court

of Common Pleas of Allegheny County, ;

at No. 4039A, May Sessions, 1973 ‘

OPINION OF THE COURT

POMEROY, J., Filed: July 7, 1975

The Commonwealth has appealed from an order of the trial

court suppressing certain incriminating statements made by

John McDade, the appellee, in connection with the homicide

of one Joey Wells.' The trial court, after a hearing on ap-

‘It is clear from the record that the suppression of the challenged

evidence will handicap the Commonwealth in its prosecution of the case. It

is for that reason that the Commonwealth has the right to appeal from the

suppression order. Commonwealth v. Wormsley, .... Par... .. ere

A.2d ..... no} (1975): Commonwealth vo Bosurgi, 411 Pa. 56, 190 A.2d 304

(1063).

ke

— nw a re |

Ee! FED THROUGH POOR COPY

Ee

26

Appendix **B’—Opinion of the Pennsylvania

Supreme Court.

pellee’s oral motion to suppress,” issued a blanket order sup-

pressing all statements made by the defendant because he had

not been advised of his constitutional rights as mandated by

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694 (1966),

prior to his initial interview by the police concerning the

Wells slaying; and suppressing all evidence obtained during

the period between defendant's arrest and arraignment for the

additional reason that that evidence was the product of an un-

necessary delay in violation of Rule 118 of the Pennsylvania

Rules of Criminal Procedure, and hence inadmissible under

Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

The Commonwealth complains only of the suppression of

two of the incriminating declarations: (1) a statement made by

the defendant to two women friends: and (2) a statement

made by the defendant to a fellow-inmate while he was in-

carcerated on an unrelated charge. For the reasons here-

inafter stated, we conclude that the order was correct except

insofar as it suppressed the statement made to the fellow-

inmate. We will therefore affirm with an appropriate

modification.

A review of the facts surrounding the giving of these state-

ments is necessary. On June 8, 1972 the body of 14 year old

Joey Wells was discovered lying in a creek in Fawn Township,

? It is to be noted that the oral motion to suppress did not comply with the

requirements of Pa. R. Cr. P., Rule 304 and Rule 323, 19 P.S. Appendix

(Supp. 1974-75). Cf. Commonwealth vo Turra, 442 Pa. 192, 275 A.2d 96

(1971). The court apparently permitted the defendant to proceed on the

basis of an oral motion to suppress because the court was aware of the fact

that the defendant was represented by new counsel, and that previous coun-

sel had prepared a written motion which had become misplaced before it

could be filed.

At the suppression hearing. the prosecutor objected to the motion on the

ground that it was untimely, but neither that objection nor any other ob-

jection to the procedures employed below has been pursued on appeal.

a i th oe ————————

27

Appendix ‘‘B’’—Opinion of the Pennsylvania

Supreme Court.

Allegheny County. The deceased’s hands were wired behind

his back and there were indications that he had been shot

three times. During the subsequent police investigation it was

learned that John McDade may have been the last person to

have seen Joey Wells alive. McDade was first interviewed

concerning the Wells homicide on July 13, 1972. At that time

he was not suspected as being involved in the crime. no

Miranda warnings were given to him, and no inculpatory

statements were made. The next day the defendant was trans-

ferred from the police station at the Borough of Tarentum to

the Allegheny County Jail to commence serving a two-week

sentence on a summary conviction for an unrelated offense.

On the same day he was taken by county detectives to the

Detective Bureau, where he remained in custody of the detec-

tives for approximately eight and one-half hours.*

Three days later, July 17, 1972, McDade was again in-

terrogated. By this time he had become the focus of the in-

vestigation, and the questioning was preceded by the giving,

apparently for the first time, of warnings concerning his con-

stitutional rights, which were waived in writing. From noon

until midnight of that day, the defendant was questioned in-

termittently, first at the Millvale police station,* then at the

scene of the discovery of Wells’ body, again at the nearby

Fawn Township Municipal Building where he was allowed to

talk for about an hour with his mother and sister, and finally

'‘ During this time McDade was interviewed by the detectives, had lunch

in the Detective Bureau, was administered a polygraph test, and was taken

to a restaurant for supper. It does not appear that any incriminating state-

ments were made during this period.

' This interview took place at the Municipal Building of the Borough of

Millvale, near Pittsburgh, in order to avoid numerous newsmen who were

present at the Allegheny County Detective Bureau, where such interviews

normally are held.

, i — ok cles SL Eats Fs KEPT

E| FED THROUGH POOR COPY

28

Appendix ‘B’-—Opinion of the Pennsylvania

Supreme Court.

at the Allegheny County Detective Bureau. During this

period, McDade made various incriminating statements to the

police, culminating in a seven-page written confession ob-

tained after his return to the Detective Bureau. The taking of

this formal statement began at 12:26 A.M., July 18, 1973,

prior to which the defendant was again advised of his con-

stitutional rights, which he again waived. He then was told by

one of the officers that he was under arrest for the Wells

slaying.

At about noon on July 18, 1972, McDade was taken by the

police, at his own request, to the New Kensington, Penn-

sylvania home of two women friends for the purpose of

discussing the homicide with them. The defendant was

permitted to converse with the women in a room out of ear-

shot of the police. After this conversation one of the women

then told the police that McDade wished to change his story,

but that he was afraid that the policy would “be angry with

him because he told you a lie with regard to the gun.” Upon

being assured that the police would not be angry, the woman

requested McDade to repeat to the police the story he had

told her and her friend. This he proceeded to do. He was not

advised of his constitutional rights before reciting this altered

version of his story.

The detectives and the defendant then proceeded to Saxon-

burg, Pennsylvania, where McDade had indicated in his

altered story that the gun he had used in the slaying might be

found. A weapon was found, but, as it turned out later, it was

not the gun used in the Wells murder. Upon returning to the

Allegheny County Detective Bureau early on July 19, 1972,

McDade made a supplementary written statement to reflect

the changes in his earlier narrative.

ENA ELE CLINI ALLIED POR ELIOT Pee

Sj we Me PRENSA RE SE MARAT MRILT OME ESET AT CAD EN

——— Olt ell Leal ARAN WARIS CaN AL CHR MATIRE NS

29

App. ndix ‘“‘B’—Opinion of the Pennsylvania

Supreme Court.

Notwithstanding these various inculpatory statements, the

police did not then formally charge McDade with the Wells

murder because they believed they lacked sufficient

corroborating evidence for a successful prosecution. Ac-

cordingly, on July 28, 1972, after having served his fortnight’s

sentence on the unrelated summary offense, McDade was

released from the Aliegheny County Jail and allowed to go

free. Three months later, on November 1, 1972, while serving

time in jail on still another unrelated offense, the defendant

again made an incriminating statement concerning the Joey

Wells slaying, this one to a fellow-inmate. The statement was

communicated to the police by the inmate by letter.

As noted at the beginning of this opinion, the hearing judge

suppressed all statements made by the defendant on the

ground that he had not been properly advised of his con-

Stitutional rights at the outset of his interrogation by the

police on July 13, 1972. The court believed that the taint thus

created “‘so permeated defendant's status it was not removed

by the [subsequent] rights warning.”

In Commonwealth v. Moody, 429 Pa. 39, 239 A.2d 409

(1968), we pointed out that “[a] confession secured after the

person involved has been adequately advised of his con-

stitutional rights is not rendered inadmissible ipso facto be-

cause an earlier confession or inculpatory admission was

made in the absence of a warning of these rights, Evans v. U.

S., 375 F.2d 355 (8th Cir. 1967), U. S. v. Hickey, 247 F. Supp.

621 (E.D. Pa. 1965).”’ 429 Pa. at 44. See also Commonwealth v.

Frazier, 443 Pa. 178, 279 A.2d 33 (1971). However, we have

said that in order for evidence of a subsequent incriminating

statement to be admissible, it must be “first established that

the last statement or confession was not the exploitation of

the original illegality and was obtained under circumstances

ee SILANE EI FEIT I

E| FED THROUGH POOR COPY

$i MA . OPIS PEDO IIE FS AOA A OETA EIEIO OF EE LE SORT

30

Appendix “‘B’—Opinion of the Pennsylvania

Supreme Court.

sufficiently distinguishing to purge it of the original taint.”

Commonwealth v. Banks, 429 Pa. 53, 59, 239 A.2d 416 (1968).

See also Wong Sun v. U. S., 371 U.S. 471, 9 L.Ed. 2d 441

(1963).

The Commonwealth has chosen not to contest the sup-

pression of the formal written statement which McDade gave

in the early morning of July 18, 1972, which preceded by ap-

proximately nine hours the statement to the women. We thus

must accept as a premise the decision of the suppression court

that the formal statement was vitiated by the inital failure of

the police to give Miranda warnings on July 13. Although we

do not have that particular statement before us, it apparently

was of a seriously inculpatory nature. As such it formed an

additional link in the chain of causality leading from the in-

tial failure to inform appellant of his Miranda rights to his

eventual admissions to his friends. See Commonwealth v.

Whiteker. 20. PO. 3 ayo. A... CASTS.

The Commonwealth urges that the statements to the women

were voluntarily made in a non-custodial setting to persons

unconnected with the police. Such factors, if truly present,

would of course go a long way to dissipate any taint of

previous illegality. Under the facts of this case, however, we

cannot agree that these factors were established. The ap-

parently damaging nature of McDade’s formal statement to

the police understandably created a compulsion upon him to

“come clean” by giving the correct details about disposition

of the murder weapon. Realistically viewed in light of the

surrounding circumstances, the statement to the women,

repeated to the police, was in the nature of a mere amendment

to the previous invalid statement which appellant, apparently

out of fear, chose to transmit through an intermediary rather

than directly. The detectives were aware that McDade’s pur-

ats LEADON BEALE IL IR EEE ALE LLLP LE NILE ELL

31

Appendix *B'—Opinion of the Pennsylvania

Supreme Court.

pose in requesting to see the two women was to discuss the

homicide with them, and that conversation took place with

police permission while they waited in the next room.

Although this episode occurred outside of a police station,

McDade was at all times in police custody and was under ob-

servation even during the conversation. We thus conclude

that the Commonwealth did not sustain its burden of proving

that the statement to the women was purged of the taint of the

prior illegal statement: hence the new statement was properly

suppressed. /n Re Betrand, 451 Pa. 381, 303 A.2d 486 (1973).

A different situation is presented in regard to the later in-

criminating statement given by the defendant to his fellow-in-

mate on November 1, 1972. This took place three months af-

ter his release from custody and without police intervention

of any sort. A statement obtained under such circumstances

cannot be said to be still affected either by the initial failure

of the police to advise the defendant of his Miranda rights or

by the subsequently obtained tainted statements. Cf. Westover

v. U. S., 384 U.S. 436, 496, 16 L.Ed.2d 694, 736 (1966): U.S. v.

Bayer, 331 U.S. 532, 91 L.Ed. 654 (1947). In concluding to the

contrary, we think that the suppression judge erred.

We must deal, finally, with the finding below that the

November | statement was the product of an unnecessary

delay between the time of the defendant’s arrest and arraign-

ment. The suppression court found as a fact that the defen-

dant was arrested at approximately 12:30 A.M. on July 18,

1972 when he was told by an interrogating detective that he

was under arrest. The preliminary arraignment did not come

about until April 23, 1973, more than nine months later.

Based on these facts the court concluded, in light of the ex-

clusionary rule announced in Commonwealth v. Futch, supra,

that all evidence obtained before the arraignment, including

SESS NA SABE

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EF! FED THROUGH POOR COPY

Aa ENN IE OPP REE POOR AESIG MNEPELONN TWIST A PLT TE SM AE NE SS NGG 0 St a ery

32

Appendix ‘‘B''—Opinion of the Pennsylvania

Supreme Court.

the statement made to the fellow-inmate, must be suppressed

as the product of that delay.

In our view, the court misperceived which arrest was the

ciritical one for purposes of Rule 118 of the Rules of criminal

Procedure, and hence also for the application of Com-

monwealth v. Futch. The arrest the court found to have taken

place on July 18, 1972 was negated or rescinded when the

police, after consultation with the district attorney’s office,

decided to forego prosecution of the defendant at that time

due to the absence of corroborating evidence, as noted above.

It was for that reason that the appellee was neither arraigned

nor otherwise administratively processed in connection with

the Wells slaying, but instead was released upon the con-

clusion of his sentence on the summary conviction. At that

point he was no longer in police custody and he remained at

liberty until his arrest on another unrelated offense. It was

during his incarceration on that offense that the statement

was made to the fellow-inmate. McDade was not rearrested

for the Wells slaying until April 23, 1973 and on that same

day was preliminarily arraigned. For Rule 118 and Futch pur-

poses, the critical time was that between his arrest and

arraignment on that date. Because the statement to the fellow-

inmate was not made during that period, there was no basis

for suppressing it on the ground of unnecessary delay.

The order of the suppression court is modified so as to ex-

clude from its operation the statement of the appellee to his

fellow-inmate on November 1, 1972. As so modified, the

order is affirmed.

Mr. Justice NIX filed a dissenting opinion.

Mr. Chief Justice JONES did not participate in the con-

sideration or decision of this case.

aes SA ENE CoM eM a LRMUINE TT TPA SRR ERIS HLL GLAM BITS ROAM SRN TREE MAS SUING

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Appendix ‘B’—Opinion of the Pennsylvania

Supreme Court.

[| 338]

IN THE SUPREME COURT OF PENNSYLVANIA

Western District

COMMONWEALTH OF PENNSYLVANIA,

Appellant,

Vv.

JOHN McDADE.

No. 83 March Term, 1974

Appeal from the Order of the

Court of Common Pleas of Allegheny

County, at No. 4039A May Session,

1973

DISSENTING OPINION

NIX, J. Filed: July 7, 1975

I agree with the majority opinion reversing the suppression

of appellee's statement to his fellow inmate. However, |

believe that it was also improper to suppress the statements

made to appellee’s two women friends. The majority con-

cludes that because the statements given to the women were

“in the nature of amendment[s! to [the] previous

[inadmissible] statement ... there was a ‘real and direct

causal connection’ between the two.” Moreover the majority

ee

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Appendix ‘‘B’—Opinion of the Pennsylvania

Supreme Court.

finds that the statement to the women was tainted by the

initial statement because appellee felt a “compulsion” to

“come clean.”

In my view the statements to the women were totally volun-

tary and independent of the initial illegality and the ex-

clusionary rwhe te cart emproper police conduct should not

be applied be Chews sasnements

First @ o& umperetane Ge mete that this is not a case where the

friends to «thew he statements were made were acting on

behalf of the poluwe compare Escobedo v. Ilinois, 378 U.S.

478 (196% Mewsne » Onnted States, 377 U.S. 201 (1964). In-

deed in this case appellee requested that he be taken to see the

women. He talked with them alone and the statements made

to them were totally voluntary. Clearly if a defendant, in

custody, makes statements which are not the result of initiat-

ed interrogation, those statements are admissible. See United

States v. Mattson, 469 F.2d 1234, 1237 (9th Cir. 1972), United

States v. Henderson, 469 F.2d 1074, 1075 (Sth Cir. 1972) cert

denied 410 U.S. 985 (1973); 62 Georgetown L.J. (1973).

Furthermore the majority has failed to adequately establish

a direct causal connection between appellee’s initial statement

and his statements to the women. The majority relies heavily

on the fact that appellee felt compelled to use the women as

intermediaries in order to “come clean” regarding mis-

statements in his initial statement. On the contrary the record

reflects that appellee wished to speak to these women not be-

cause of the earlier statement, but rather because he wished to

obtain advice and guidance concerning his predicament at

that time. There is no evidence that he wished to tell the truth

(i.e. “come clean’) at the time he voluntarily initiated the

conversation with the women or that he was coerced by the

police to speak to the women. It was only after this con-

PRE FOOLER Pee ea eT

SPIED III MR GIL PARE TET EO MERTON LIRR ILE ET ISOND SGOT

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Appendix “B’—Opinion of the Pennsylvania

Supreme Court.

versation occurred that the police were told that he wished to

be candid and to correct certain misstatements in his prior

statement to them.

In Commonwealth v. Greene, 456 Pa. 195, .... A.2d ....

(1974) the writer of the majority opinion in the instant appeal

wrote:

. appellant’s second statement was made after a

time lapse of one and one half hours, in a different

physical setting, to a different police officer. factors

which we have recognized as significant in cleansing any

taint from an earlier statement.” /d at 198, .... A.2d

.. Citing Commonwealth v. Mitchell, 445 Pa. 461, 285

A.2d 93 (1971).

Here the evidence reveals that the statements were made

voluntarily at the home of two friends: that the statements

were made only to these friends who were not agents of, nor

employed by the police: and that the statements were made at

least nine hours after the inadmissible statements to the

police. Moreover there is no evidence that there was any

police coercion before the statements were made: nor is there

evidence that when appellee made the statements to these

women he was motivated to do so by the initial statement to

the police. Indeed the desire to correct former misstatements

and be candid after meeting with these friends further

suggests that his motive in speaking with them was solely to

obtain advice and counsel.

Under these facts I find no basis for applying an ex-

culsionary rule designed to deter illegal police conduct. Ac-

cordingly I dissent from that portion of the majority opinion

which upholds the suppression of the statements to the two

women.

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