Commonwealth v. Brown , 700 A.2d 1310 ( 1997 )

CIRILLO, President Judge Emeritus,

dissenting.

Because the Commonwealth has offered sufficient evidence to demonstrate that Samuel Brown’s statements made to the police in December of 1995 and in January of 1996 are not fruits of the poisonous tree, I conclude that they are admissible at trial. I must, therefore, respectfully dissent.

At the outset I wholeheartedly agree with the majority’s finding that Samuel Brown’s statements made during the interviews that took place in January of 1967 were correctly suppressed due to the Commonwealth’s failure to prove that Brown was properly Mirandized. I cannot agree, however, with the majority’s logic concerning the suppression of Brown’s subsequent statements in 1995 and 1996. In my view, the majority incorrectly concludes that these subsequent statements, given approximately thirty years after the initial statements, were garnered as a direct and substantial result of the initial illegally obtained 1967 statements and thus “fruit of the poisonous tree.”

As the majority ably explains, evidence is “fruit of the poisonous tree” and thus subject to suppression if the evidence comes to light by way of exploitation of the illegality. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977). Where, however, the evidence is ferreted out by “means sufficiently distinguishable” from the illegality, it is said to be “purged of the primary taint” and, thus, admissible. Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417. See Commonwealth v. Ariondo, 397 Pa.Super. 364, 377, 580 A.2d 341, 347 (1990)(the fruit of the poisonous tree doctrine excludes evidence obtained from, or acquired as a consequence of, lawless official acts; it does not exclude evidence obtained from an independent source).

In the context of a series of statements elicited by the police, our supreme court has held that when a subsequent statement is an act of free will, it is sufficient in itself to sever the causal connection between an initial illegally obtained statement and the subsequent statement. See Commonwealth v. Chacho, 500 Pa. 571, 580-82, 459 A.2d 311, 315-17 (1983); Commonwealth v. Diggs, 351 Pa.Super. 444, 506 A.2d 431 (1986). See also Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986) (where initial illegal statement did not contain inculpatory information, subsequent statements containing defendant’s confession were not the product of exploitation of the earlier illegality). The rationale behind the “subsequent taint rule,” was explained by the United States Supreme Court in Oregon v. Elstad:

No further purpose would be served by imputing “taint” to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uneoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.

470 U.S. 298, 318, 105 S.Ct. 1285, 1298, 84 L.Ed.2d 222 (1985).

In the present case the suppression court found that Brown’s 1995 statement was voluntarily elicited in a non-custodial setting. The suppression court further found that Brown’s 1996 statement was made after Brown knowingly and intelligently waived his Miranda rights. Thus, according to the suppression court’s findings, which the majority completely sanctions, both statements were voluntarily made. Because these statements were voluntarily made, and because the 1967 statement contained no inculpatory information, and thus was not coercive, the causal connection between the initial 1967 statement and the subsequent voluntary statements has been sufficiently severed.¹ Chacko, supra; Oregon, supra.

Even if the voluntariness of the subsequent statements alone were not sufficient to purge the taint of the illegally obtained 1967 statements, the record is replete with a virtual cornucopia of facts that support the conclusion that the 1995 and 1996 statements were not fruit of the poisonous 1967 statement. First, the 1995 and 1996 statements were made approximately thirty years after the illegally obtained statement. See Diggs, 351 Pa.Super. at 454, 506 A.2d at 437 (lapse of time between legally and illegally obtained statements is an important factor when determining whether taint is purged). Second, the entire impetus for the 1995 and 1996 statements was that Samuel Brown’s brother, who is presently serving a life sentence for the murder of Ada Lumley, contacted authorities and informed them that his brother, Samuel, was present and during and aided in the commission of the murder. See Wong Sun, supra. Finally and perhaps most importantly, Samuel Brown testified during his brother’s trial to the exact events that were contained in his 1967 illegally obtained statement. By repeating practically verbatim everything contained in the 1967 statement during his brother’s trial, Samuel in essence gave a voluntary statement (the trial testimony) that purged the taint of the 1967 interview. See Wong Sun, supra; Cunningham, supra; Chacho, supra.

It is beyond comprehension, therefore, to conclude that the 1995 and 1996 statements should be suppressed as fruits of the poisonous tree. The taint of the 1967 statement has been purged not once, but a multitude of times. Accordingly, I would reverse the suppression court’s ruling and find that the 1995 and 1996 statements are admissible during Samuel Brown’s trial.

1 . Indeed if the 1967 statement had been inculpa-tory, then Samuel Brown would have been charged in 1967 with his brother in connection of the murder of Ada Lumley.