Commonwealth v. Richman , 458 Pa. 167 ( 1974 )

Concurring Opinion by

Mr. Justice Pomeroy:

Under the facts of the present case, I am in agreement that the defendant was entitled to counsel at the line-up, which occurred 4% hours after his arrest. Because, however, the principles which lead me to that conclusion differ substantially from those expressed in both the majority and concurring opinions, I find it necessary to concur separately.

I am in basic disagreement with the majority’s holding that, as a matter of federal constitutional law, the right to counsel at a pre-trial lineup attaches upon arrest. To be sure, such a rule does assure counsel in many cases in which, as in the one before us, the confrontation between the accused and the witness occurs a substantial period of time after the incident (in the case at bar, five days after), and the delay necessary in order to obtain counsel is unlikely to affect the accuracy of the identification or the efforts of the police to apprehend the responsible person. A totally different situation, however, is presented when a suspect is apprehended within a few hours of the crime. In that situation, a prompt confrontation increases the likelihood of an accurate identification.¹ Russell v. United States, 408 F.2d 1280, 1284 (D.C. Cir. 1969); see also Commonwealth v. Mackey, 447 Pa. 32, 36, 288 A.2d 778 (1972); Commonwealth v. Hall, 217 Pa. Superior Ct. 218, 226-28, 269 A.2d 352 (1970); F. Levine and J. Tapp, The Psychology of Criminal Identification: Wade to Kirby, 121 U. Pa. L. Rev. 1079, 1101 (1973). The difficulty with the rule espoused by the majority is that it provides no basis for distinguishing between confrontations which take place shortly after a crime and those occurring days later.

The source of this difficulty is the broad definition which in Pennsylvania we have given to “arrest”. In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), we stated that an arrest was accomplished by “ ‘any act that indicates an intention to take [a person] into custody and that subjects him to the actual control and will of the person making the arrest:’ 5 Am. Jur. 2d, Arrest, §1, p. 695” (411 Pa. at 68). In that case, we held that a person seated in a bar was arrested at the point at which he was ordered to stand and turn around. Similarly, in Commonwealth v. Sharpe, 449 Pa. 35, 41, 42, 296 A.2d 519 (1972), we held that a suspect was under arrest when he was ordered to stop, approach the police car, and display the contents of a bag which he was carrying. See also the recent case of Commonwealth v. Hall, 456 Pa. 243, 249, 317 A.2d 891 (1974), wherein the Court seemingly held that an arrest occurred when the suspect was taken to a near-by police station for an immediate confrontation.

The import of these decisions is that any person who is or may be a suspect and who is taken back to the scene of the crime, or to a hospital, or to a police station, must be deemed “arrested”. Requiring counsel at every post-arrest confrontation, consequently, virtually eliminates the possibility of on-the-scene identifications, even though such confrontations come within an exception to Wade which was widely recognized even before Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411 (1972). See Commonwealth v. Ray, 455 Pa. 43, 48-49 n. 2, 315 A.2d 634 (1974) (plurality opinion); Model Code of Pre-Arraignment Procedure, Tentative Draft No. 6, §160.2(1) (a), and commentary thereto, at p. 215 (American Law Institute, April 1, 1974).

So broad a rule is certainly not necessary for decision of the case at bar, nor, as my brother Eagen demonstrates in his separate concurrence, is it required by Kirby. Similarly, the rule now adopted by the Court is not required by our decision in Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970). In that case, we emphasized (by italicizing the word “after”, 439 Pa. at 207) the fact that the accused there, like the accused in Wade, had in fact already been arrested when the challenged identifications took place, but there was no discussion whatever of the significance of that fact; nor, contrary to the majority suggestion, was there any determination that arrest marks the initiation of adversary judicial proceedings — the Kirby guidepost— in Pennsylvania.² Indeed, Whiting was decided before Kirby, and was grounded entirely upon the critical stage analysis in Wade. See 439 Pa. at 208-210. That approach has, of course, been refined, and no doubt limited, by Kirby. See Kirby v. Illinois, supra, at 688 (plurality opinion of Mr. Justice Stewart) and 696-699 (dissenting opinion of Mr. Justice Brennan).

In Commonwealth v. Ray, supra, we held that a defendant did not have a Sixth Amendment right to counsel at a pre-arrest confrontation of a suspect who had been detained for investigation shortly after commission of a crime.³ We left to another day determination of whether, in Pennsylvania, adversary judicial proceedings, in the Kirby sense, commence with a formal arrest, or at some other point. 455 Pa. at 49-50. It is my present view that the institution of “adversary judicial proceedings” under Pennsylvania criminal procedure occurs not later than the preliminary hearing (see Pa. R. Crim. P. 120), for it is then that the Commonwealth, through the district attorney, must decide whether to recommend discharge of the accused or to endeavor to make out a prima facie case against him. [Our rule expressly provides that an accused is entitled to counsel at this hearing, and it is, of course, a “critical stage” under Coleman v. Alabama, 399 U.S. 1, 10, 26 L.Ed.2d 387, 397 (1970).] It is, however, a tenable position, which Mr. Justice Eagen espouses, that the preliminary arraignment, required by Pa. R. Crim. P. 119, marks the commencement of such proceedings. The preliminary arraignment precedes the preliminary hearing by three to seven days. While the district attorney is not present, and no decision whether or not to prosecute is then made, the accused is, of course, then in custody of the police before a magistrate, is furnished with a copy of the complaint against him, and is informed of his rights to counsel, to a preliminary hearing, and to bail.

However that may be, as Mr. Justice Eagen has observed in his present concurrence, and as this writer noted in Commonwealth v. Ray, supra, at 49-50 n. 4, we are not obliged to limit Pennsylvania requirements to the minimum which is required by the federal constitution. If, however, we are to formulate a state right to counsel at pre-trial line-ups which is broader than the federal requirement as set forth in Kirby (and I can see merit in so doing), I would not do so as a matter of state constitutional law. Our Court has a well-founded reluctance to decide issues of constitutional law when disposition can be had on some other adequate ground. I observed in a similar situation to that now before us, “As we are empowered to adopt rules of criminal procedure, it is both unnecessary and unwise for us to proceed by the more rigid and inflexible route of constitutional adjudication. We have only recently recognized that the rule-adoption route is the better alternative. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). Cf. Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973).” Commonwealth v. Campana, 452 Pa. 233 at 270, 304 A.2d 432 (1973) (Pomeroy, J., dissenting).

This approach is particularly desirable in dealing with the present problem, where the endeavor is to strike the right balance between police procedures and fairness to a criminal suspect. The degree to which extending a right to counsel to a pre-preliminary arraignment (or pre-preliminary hearing) confrontation creates an unwarranted interference with proper police investigation is primarily a factual matter. All the relevant facts are not known, at least to me, at this writing. I believe we should retain the flexibility which a rule permits to reevaluate and change the procedures as time goes on without the constriction of a constitutional principle, whether state or federal. By the same token, we avoid the difficult problems of retroactivity which attach to constitutional pronouncements.

In sum, I would favor a rule which would allow a person who has been arrested to have counsel at a lineup which occurred thereafter, except as to those confrontations which take place within a short period of time after commission of a crime.⁴

1 A prompt confrontation also allows the police to continue with their investigation, if the wrong person is mistakenly apprehended, and to terminate the investigation upon obtaining an identification. Terminating the investigation is itself an important consideration; it not only permits the police to use their resources elsewhere, but it also limits the intrusions into the privacy of uninvolved individuals which can accompany any investigation. See Simmons v. United States, 390 U.S. 377, 384-85, 19 L. Ed. 2d 1247, 1253 (1968); A Model Code of Pre-Arraignment Procedure, Tentative Draft No. 6, §160.2(1) (a), and commentary thereto, p. 214 (American Law Institute, April 1, 1974).

2 1 note that Mr. Justice Roberts, in his concurring opinion, supra, p. 183, uses the phrase “accusatory criminal process”. This does not, to me at least, denote the same thing as the Kirby expression, but, in any event, Whiting did not depend on any such determination.

3 In Commonwealth v. Ray, the opinion announcing the decision of the Court expressed the views of Mr. Justice Pomeroy, joined by Mr. Chief Justice Jones. Mr. Justice Hagen and Mr. Justice O’Brien concurred in the result; Mr. Justice Roberts, Mr. Justice Nix and Mr. Justice Mandebino dissented.

4 The American Law Institute’s tentative draft of rules pertaining to identification procedures is, in my view, a helpful contribution to the thinking on this subject, and worthy of our serious consideration. See A Model Code of Pre-Arraignment Procedure, Tentative Draft No. 6, Part 10 (April 1, 1974). Sections 160.2 and 160.3 are particularly pertinent to the subject matter of the instant opinions.