Commonwealth v. Devan ( 1985 )

HOFFMAN, Judge:

Appellant contends that the trial court erred in denying her motion to suppress certain oral statements and physical evidence because they were obtained in violation of Pa.R. Crim.P. 130 and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Because we agree that the oral statements should have been suppressed, we reverse and remand for a new trial.

On October 28, 1981, at approximately 3:30 p.m., appellant was arrested while walking along York Road in Abing-ton Township after police received information from security personnel at the Lord and Taylor’s department store that two women had stolen a jacket from the store. Appellant, upon being advised of her Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), told the police that her name was Sylvia Gray and that she was seventeen years old. After an arrest report was completed, she was turned over to the Juvenile Division so that her parents could be contacted. The officers were unable to verify the name given, and at about 5:20 appellant told them her name was Charlene Devan but furnished no identification in support thereof. Following further unsuccessful attempts to verify her name, the officers, at approximately 8:00 p.m., reread appellant her Miranda rights and proceeded to question her. In the course of this conversation, appellant again stated that her name was Charlene Devan and that identification could be found in the glove compartment of an Oldsmobile automobile which the police had impounded.¹ The officers found the glove compartment locked, however, and, after speaking with appellant, they were given a key to the compartment and the trunk. In the glove compartment, the police found a checkbook and various identification, including a driver’s license, in the name of Charlene Devan. They also found an assortment of new clothes from several stores in the trunk, and appellant then made several statements concerning who had purchased those items. At about this time the officers received information from Lord and Taylor’s that appellant had attempted to purchase some merchandise with a check in the name of Charlene Gaither. When confronted with this new information, appellant told the police that this checkbook was hidden at the scene of her arrest. At approximately 9:00 that evening, the officers took appellant back to York Road where the checkbook in the name of Charlene Gaither and the check which they had received information about were found.

Immediately after returning to the police station with appellant, the officers prepared a new complaint which they completed around 11:00 p.m. Sometime between 11:00 and 11:30, the officers attempted to have appellant arraigned,

[b]ut Magistrate Plummer was not to be bothered at night, and Magistrate Peterson was unable to be contacted, so the complaints were left for the Justice of the Peace who came in in the morning, and they were sent down when the office opens at 9:00. He [Magistrate Plummer] called, he had the paperwork completed sometime after that for the arraignment.

(N.T., Suppression Hearing, April 20, 1982 at 30-31). Appellant was finally arraigned the next day, October 29, 1981, “[i]n the area of 12:00 or noon, sometime within, give or take an hour.” (Id. at 30). She was charged with criminal conspiracy, criminal attempt to commit theft by deception, criminal attempt to commit the crime of bad checks, theft by deception, and theft by receiving stolen property.

Appellant’s pre-trial motion to suppress was denied on April 20, 1982. Following trial on April 21-22, appellant was found guilty of the criminal attempt charges. Post-verdict motions were timely filed, argued, and denied. Appellant was then sentenced on January 3, 1983 to a term of imprisonment of one-to-two years for attempted theft² and ordered to pay the costs of prosecution on the attempted bad checks offense.³ This appeal followed.

“[W]hen a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendant and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.” Pa.R.Crim.P. 130(a) (emphasis added). To enforce Rule 130 (then Pa.R.Crim.P. 118), our Supreme Court has held that evidence obtained during an unnecessary delay between arrest and preliminary arraignment is inadmissible at trial. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Following Futch, the Court adopted a rule pursuant to its supervisory power under which statements obtained after arrest and before arraignment are inadmissible at trial if the accused is not arraigned within six hours of arrest. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). A delay of two minutes beyond the six-hour period has been held to be a violation of the Davenport rule. Commonwealth v. Bennett, 287 Pa. Superior Ct. 485, 430 A.2d 994 (1981), aff'd per curiam, 498 Pa. 656, 450 A.2d 970 (1982); see also Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1981) (per curiam; ten minute delay required suppression); cf. Commonwealth v. Robertson, 317 Pa.Superior Ct. 158, 463 A.2d 1133 (1983).

Here, appellant contends that because arraignment did not take place until approximately twenty and one-half hours after her arrest, her oral statements and the physical evidence obtained as a result of such statements should be inadmissible at trial. The Commonwealth, in turn, argues that the delay was excusable because of exigent circumstances, the presence of which constitute an exception to the six-hour rule: “Six hours provides a workable rule which can readily be complied with in the absence of exigent circumstances.” Commonwealth v. Davenport, supra 471 Pa. at 286 n. 7, 370 A.2d at 306 n. 7; see also Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983); Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982); Commonwealth v. Williams, 313 Pa.Superior Ct. 243, 459 A.2d 830 (1983); Commonwealth v. Ryles, 274 Pa.Superior Ct. 547, 418 A.2d 542 (1980). In the instant case, the lower court found two such circumstances: appellant’s “obfuscatory tactics” and the unavailability of a magistrate on the night of October 28. (Lower Court Opinion at 2).

We agree with the lower court that part of the delay was due to appellant’s own actions. Not until 5:20 p.m., almost two hours after her arrest at 3:30, did appellant give the police her correct name. While there are no Rule 130 cases holding that a defendant’s conduct can constitute an exigent circumstance, we note that several Pa.R.Crim.P. 1100 “prompt trial” cases hold that a defendant cannot profit from delay which he or she has caused. See, e.g., Commonwealth v. Machi, 294 Pa.Superior Ct. 338, 439 A.2d 1230 (1982); Commonwealth v. Gallo, 276 Pa.Superior Ct. 562, 419 A.2d 601 (1980); cf. Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied sub nom., Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982) (no unnecessary delay under Futch, supra, where two hours of administrative processing were caused in part by defendant’s misleading police as to his identity). As one officer testified:

We spend several hours trying to determine who the defendant was and who the other two defendants were, and because of the size of the problem that we had — we don’t have that big of a police department — there was only a couple officers working on it. It took us two hours just to get her to tell us she was Charlene DeVan, and she was only one of three people that we had to go through with the same exact problem about who they were. Several arrest reports had to be made up. And then when they’d tell us that’s not their name, they had to be destroyed and new ones had to be made up. It’s a very time-consuming process. And, in the meantime, we used all the normal police procedures such as the computer, such as the phone book, trying to verify the information that we were receiving. The delay was also caused by the fact that she told us she was a juvenile, and she was turned over to Juvenile, and it took them a little while to decide that she wasn’t, in fact, a juvenile, and returned her back to us. So it was a very time-consuming thing.

(N.T., Suppression Hearing, April 20, 1982 at 27-28). Therefore, we will exclude the delay from 3:30 to 5:20 in determining whether or not the Davenport rule has been violated in this case.

Even excluding these two hours from the six-hour calculation, however, appellant still was not arraigned until over eighteen and one-half hours later. Beginning at 5:20, the Davenport rule would mandate an arraignment no later than 11:20 p.m. Between 11:00 and 11:30, however, the officers attempted to contact a magistrate, but one “was not to be bothered at night,” and another could not be reached. (N.T., Suppression Hearing, April 20, 1982 at 30). The Commonwealth apparently begins the six-hour period at approximately 8:00, rather than at 5:20, because “[i]n light of [appellant’s] previous deception, the police attempt to confirm the information can only be viewed as a prudent exercise of administrative caution.” (Appellee’s Brief at 6). Therefore, under Davenport, an 8:00 starting time would compel that the arraignment be held by 2:00 a.m. But we need not decide whether 5:20 or 8:00 is the correct starting time because of our disposition of the case.

The absence of a judicial officer has been held to be an exigent circumstance. Commonwealth v. Keasley, supra; Commonwealth v. Jenkins, supra; Commonwealth v. Ryles, supra. In Keasley, the defendant was not arraigned until twelve hours after his arrest. Although he was brought before the court for an arraignment well within the six-hour period, the judge scheduled to be on duty was absent because he had accompanied his clerk, who had suffered a heart attack, to the hospital. Then,

[ejfforts by police to secure the presence of the arraignment judge scheduled to be on duty as well as another arraignment judge were unsuccessful, and appellee was not arraigned until 6:25 a.m. that morning, after the judge scheduled to be on duty at 8:00 a.m. came on duty early at police request.

501 Pa. at 463, 462 A.2d at 217. In Jenkins, the police released the defendant five hours after his arrest “[w]hen it became apparent that it would become impossible to find an available judicial officer to arraign [him]____” 500 Pa. at 146, 454 A.2d at 1005. The defendant was then re-arrested the next day and arraigned within two and one-half hours. In Ryles, the defendant was taken for arraignment five hours and fifty-three minutes after his arrest, but “[t]he judge, although assigned for a [sic] eight hour shift which began at 4:00 p.m., was not present. The judge had left the court for supper____” 274 Pa.Superior Ct. at 550, 418 A.2d at 543. As in Jenkins, the police search for the judge was unsuccessful; however, unlike Jenkins, the judge returned shortly thereafter and arraignment began six hours and twenty-five minutes following Ryles’ arrest.

The instant case differs from Keasley, Jenkins, and Ryles. Here, after the unsuccessful attempt to hold the arraignment at about 11:30, appellant was neither released nor arraigned shortly thereafter. Assuming that the absence of a judicial officer between 11:00 and 11:30 constituted an exigent circumstance, we find nothing in the record to suggest that any effort was made to promptly arraign appellant thereafter. We note that our Supreme Court, in Jenkins, stated:

Interestingly, both the suppression court and appellee implicitly concede that if the police had caused appellee to remain in custody, even beyond the six hour limit, while they were attempting to secure a judicial officer the case would probably have fallen within the exigent circumstances dispensation. We agree with this conclusion assuming the Commonwealth’s ability to establish its diligent effort in seeking a timely arraignment.

500 Pa. at 151, 454 A.2d at 1007 (emphasis added). Here, appellant remained in custody from 11:30 p.m. until 12 noon the following day. Nowhere in the record is there any showing that the police officers attempted to have appellant arraigned after their initially unsuccessful try.⁴ Cf. Commonwealth v. Keasley, supra 501 Pa. at 463, 462 A.2d at 217 (“On this record, the Commonwealth has shown that the police diligently sought to locate an arraignment judge and to secure appellee’s prompt arraignment both before and after it became apparent that the six-hour limit could not be met.”). Nor is the three-hour delay on the morning of October 29 explained; although the complaints “were sent down when the office open[ed] at 9:00,” N.T., Suppression Hearing, April 20, 1982 at 30-31, appellant was not arraigned until sometime “[i]n the area of 12:00 or noon____” Id. at 30. We believe that the officers, knowing appellant's arrest to have taken place at around 3:30 the previous day, should have made every effort to expedite her appearance before a magistrate. Because we hold that this delay was inexcusable in light of the purposes that Davenport was designed to serve, we are constrained to find a violation of the six-hour rule.

The “unnecessary delay” rule and the six-hour rule were “adopted not simply to guard against the coercive influence of custodial interrogation, but to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.” Commonwealth v. Davenport, supra 471 Pa. at 284, 287-88, 370 A.2d at 305-06. The purposes served by prompt arraignment are fourfold:

to protect the accused’s right to know “the nature and cause of the accusation against him,” Pa.Const. art. I, § 9, his right to counsel, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); U.S. Const. Amends. VI, XIV; Pa.Const. art. I, § 9, and his right to reasonable bail. Pa.Const. art. I, § 14. It also protects the accused’s right to be free from unreasonable seizure of his person. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); U.S.Const. amends. IV, XIV; Pa.Const. art. I, § 8.

Id., 471 Pa. at 283, 370 A.2d at 304 (emphasis added); see also Pa.R.Crim.P. 140(a) (preliminary arraignment requirements).

Therefore, because appellant’s right “to receive an immediate and reasonable opportunity to regain [her] freedom by the posting of bail,” Commonwealth v. Jenkins, supra 500 Pa. at 148, 454 A.2d at 1006, citing Commonwealth v. McGeachy, 487 Pa. 25, 28, 407 A.2d 1300, 1301 (1979), was denied, appellant’s statements between the time of her arrest and arraignment must be suppressed. As our Supreme Court stated in Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973): “The danger of any such unnecessary and unconstitutional restriction of liberty diminishes significantly when a citizen is brought before a neutral judicial authority, there to be informed of the charges and provided with an immediate and reasonable opportunity to regain his liberty by the posting of a reasonable bail.” Id., 454 Pa. at 446, 311 A.2d at 614 (emphasis in original).

Having determined that appellant’s oral statements must be suppressed, we must next determine whether physical evidence obtained as a result thereof must also be suppressed. In Commonwealth v. Rhem, 283 Pa.Superior Ct. 565, 424 A.2d 1345 (1980), we held that the Davenport rule does not apply to physical evidence. In Rhem, however, the defendant was searched; the search was not a result of any statements he made. Therefore, we believe instead that the instant case is controlled by the “fruit of the poisonous tree” doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In such a case, we ask “ ‘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 distinguishable to be purged of the primary taint.’ ” Id. at 488, 83 S.Ct. at 417, citing Maguire, Evidence of Guilt, 221 (1959).

[W]here the prosecution can establish that the challenged evidence would have come to its attention from an independent source free of taint, there is not the type of exploitation of the illegality that requires the imposition of the rule of exclusion. Restated, where the evidence obtained as the result of illegal police activity would have been discovered in the course of a lawfully conducted investigation, no purpose is served in applying the exclusionary rule.

Commonwealth v. Brown, 470 Pa. 274, 284, 368 A.2d 626, 631 (1976). Because this case is being remanded, then, the trial court will have the opportunity to determine whether or not the evidence seized as a result of appellant’s statements would have been found independently in the course of a lawfully conducted police investigation. If so, the evidence will be admissible. See Commonwealth v. Jones, 271 Pa.Superior Ct. 528, 536, 414 A.2d 379, 383 (1979).

Judgment of sentence is reversed and case is remanded for a new trial.

Reversed and remanded. Jurisdiction is not retained.

MONTEMURO, J., files a concurring opinion. DEL SOLE, J., concurs in the result.

1 . Lord and Taylor personnel had told the investigating officers that a third suspect, a male, had come into the store with the two women, left, and gotten into the Oldsmobile. The car was found abandoned with a jacket, apparently purchased at some other store, lying on the back seat. The male suspect was apprehended in a store adjacent to Lord and Taylor’s.

2 . 18 Pa.C.S.A. §§ 901 and 3922.

3 . Id. § 4105.

4 . Although one of the judges in the instant case was not to be bothered at night, we note this language from Ryles:

We do not suggest or imply any improper or negligent conduct was involved. But, we assume it for purposes of our ruling in order to point out that, whatever conduct of an individual member of the judiciary may be involved, the direct supervisory authority of our courts of common pleas and of the appellate courts of this Commonwealth provides an adequate vehicle to deter it without resort to suppression on a per se basis.

274 Pa.Superior Ct. at 552 n. 4, 418 A.2d at 544 n. 4. That is not to say, however, that judicial conduct will never warrant suppression:

We do not mean to imply that the absence of any effort by the judiciary to afford prompt arraignment will also constitute an exigent circumstance. Many counties have established schedules for district judges to make themselves available and others, as in the case instantly, have established working shifts. If a case arose in which no judicial efforts were made to afford prompt arraignment by shifts, schedules, or the like, the drastic remedy of suppression might indeed be warranted because such would necessarily involve a total disregard of the right to a prompt arraignment and because such would show an abdication by the courts involved of their responsibility to exercise supervision over judicial activity.

Id., 274 Pa.Superior Ct. at 551-52 n. 3, 418 A.2d at 544 n. 3 (emphasis added). We do not know whether or not the Montgomery County courts have established shifts or schedules for purposes of arraignment. Cf., e.g., Philadelphia Ct. C.P. Rule 550(A) ("Preliminary arraignments shall be held at 12 midnight, 4 a.m., 8 a.m., 12 noon, 4 p.m., and 8 p.m.”). Nonetheless, we need not decide whether the judicial conduct here warrants suppression because we find that the police officers were not diligent in their efforts to promptly arraign appellant.