Commonwealth v. Logan

¶1(dissenting).

¶2I dissent. Appellee’s trial counsel failed to raise the defense that appellee’s incriminating statements were impermissibly tainted by an illegal arrest. The hearing court, ruling on appellee’s petition for post-conviction relief, recognized the merit of the illegal arrest claim and granted a new trial. The majority reverses, holding that the claim was waived. In so doing, the majority asserts that the record does not support the hearing court’s finding that the arrest was illegal and concludes that the otherwise inexplicable failure of appellee’s trial counsel to raise the claim did not constitute ineffective assistance of counsel. This assertion ignores substantial portions of the record supporting the illegal arrest claim. I would affirm the hearing court's order.

¶3Appellee raises several issues in the PCHA petition, including: (1) an incriminating statement used against him at trial was impermissibly tainted by an illegal arrest; (2) he was denied his right to effective assistance of counsel.1

¶4Judge Doty, in his opinion granting PCHA relief, found that appellee’s first claim was meritorious:

“The arrest took place at 15th and Clearfield Streets, Philadelphia, and the defendant was present there with a number of other juvenile males, all of whom were likewise arrested at that time.

The record amply supports the conclusion that the police viewed this killing as a gang-related incident and proceeded to arrest many juveniles, whom they thought to be gang members, in an effort to ascertain the facts surrounding the killing. Without doubt, the defendant was part of a ‘drag net’ type of arrest, spe*435cifically condemned by the United States Supreme Court and the Pennsylvania Supre e Court.”

¶5The majority, in rejecting Juc a Doty’s conclusion states: “[t]he record is devoid of any evidence of the circumstances of appellee’s arrest other than time and location.” Such a conclusion can only be reached by ignoring substantial evidence in the record which establishes that a “dragnet” arrest occurred.

¶6The record contains the following facts in support of Judge Doty’s finding. The shooting in question was attributed to a gang to which the appellee allegedly belonged. Several youths believed to be gang members were arrested and interrogated. Appellee put the number arrested at ten or more. The testimony of Detective Sincavage, whose interrogation produced the statement from appellee, indicates that the police had little basis for a belief that the appellee was responsible for the shooting. In fact, Detective Sincavage’s suspicion apparently was based on information obtained from the defendant and the other youths after their arrests rather than information received prior to the arrest. Appellee’s mother testified that a detective told her: “they have several boys there and they’re being questioned and they would be released when they got done questioning him.” The record indicates that the arrest at issue here was part of a pattern and practice of arresting suspected gang members without probable cause and holding them for questioning. Several times that summer police investigating a gang related crime had arrested a number of youths, including the appellee, only to release them after interrogation. Appellee’s mother testified that “they got so that they’d pick them up even if they were just standing on the corner.”

¶7Thus, the record reveals that several youths were arrested merely because the police suspected, without probable cause, that they were members of a gang involved in the shooting and that they were held without probable *436cause for the sole purpose of obtaining a confession. This is precisely the kind of “dragnet arrest” condemned by this Court in Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). As Mr. Justice Eagen, speaking for the majority stated:

“[W]e specifically condemn this type of ‘dragnet arrest’ . . . particularly where it results in hours of involuntary confinement. Such a practice can only lead to the illegal and unjust detention of innocent persons and raise serious doubts in the minds of all good citizens as to whether or not the police live within the law they are charged with upholding. The Commonwealth’s position that [appellant’s] police custody (before he confessed) was not an ‘arrest’, but merely the act of detaining and interviewing possible material witnesses is belied by the facts and rejected by every pertinent legal decision. See Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).”

¶8449 Pa. at 556-57, 296 A.2d at 758. Accord, Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976).

¶9The hearing court, based on the evidence in this record, was fully warranted in finding that there was no probable cause for appellee’s arrest and in finding that appellee’s incriminating statements were a direct result of his illegal detention. Because there are no intervening circumstances to purge the taint of the illegal arrest, the hearing court’s findings mandate suppression of appellee’s statements. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973).

¶10The hearing court, as fact finder, must resolve conflicts in the testimony and must determine the credibility of the witnesses and the weight to be accorded to the evidence. See Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976). Its findings are conclusive on appeal if *437supported by the record. See Commonwealth v. Kichline, 468 Pa. 265, 281, 361 A.2d 282, 290 (1976).

¶11The majority concludes that appellee must be denied relief because he waived the illegal arrest issue by his failure to raise it in his pretrial suppression motion, at trial or on appeal. I do not agree.

¶12As the majority states, the failure to raise an issue in any prior proceeding in which the issue could have been raised constitutes a waiver for the purpose of the Post Conviction Hearing Act unless the petitioner can show “extraordinary circumstances,” Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 4(b), 19 P.S. § 1180-4(b) (Supp.1976). Ineffective assistance of counsel is an “extraordinary circumstance” as provided in section 4(b) (2) and precludes a finding of waiver. Commonwealth v. Musser, 463 Pa. 85, 343 A.2d 354 (1975) .

¶13The test for establishing ineffective assistance of counsel is well established:

“[0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hind-sight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” (Emphasis in original.)

¶14Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967); accord, Commonwealth v. Moore, 466 Pa. 510, 353 A.2d 808 (1976); Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

¶15*438Here appellee’s trial counsel failed to assert a valid suppression claim. There can be no “reasonable basis designed to effectuate [appellee’s] interests” in his failure to proceed on this issue. The facts of appellee’s arrest were readily available to him, and the applicability of Foganand Davisto those facts cannot be disputed. If counsel had raised this issue, an incriminating statement would have been suppressed, materially improving appellee’s position at trial. No tactical reason can be advanced for trial counsel’s failure to file a suppression motion. Thus, trial counsel must be deemed ineffective for failing to raise the illegal arrest claim. Therefore, the claim has not been waived. The hearing court’s order granting a new trial should be affirmed.2