Hager v. State

Moore, J., delivered the opinion of the Court. Appellant, Jess Lewis Hager, one of three young men involved in the abduction and rape of a 30-year old married woman, received a total sentence of 40 years after his conviction by a jury in the Circuit Court for Allegany County (Getty, J. presiding) of the crimes of kidnapping, rape, perverted sex acts, robbery and larceny of a motor vehicle. Pretrial motions to dismiss the four indictments against him and for suppression of evidence were denied. On this appeal he alleges error in the denial of these ⁴⁷⁷ motions and also contends that the court erred in denying his motion for removal; in denying a trial motion that the indictments be dismissed or that witnesses who allegedly heard, in a related proceeding, certain statements of fact by the State’s Attorney be precluded from testifying; and finally in admitting “various exhibits and testimony as to oral statements of the defendant.” Upon careful review of the entire record and exhibits, we find the assignments of error unsubstantiated.

We shall treat appellant’s claims seriatim. I Pretrial Motions to Dismiss and to Suppress As the trial court found, the motions to dismiss and to suppress raised essentially the same issue, namely, the validity of the arrest of the appellant in the Commonwealth of Pennsylvania. With respect to the motion to dismiss the indictment, we hold that even if the appellant’s arrest had been unlawful, this would not be grounds for dismissal of the indictments. Hammond and Couser v. State, 7 Md. App. 588, 594 (1969); Westcott v. State, 11 Md. App. 305, 308 (1971); Silbert v. State, 12 Md. App. 516, 524 (1971).

The trial judge, in a careful memorandum opinion filed at the conclusion of the pretrial hearing on the motion, held that there was a valid warrantless arrest in Pennsylvania. He stated: “The testimony adduced at the hearing on a Motion to Dismiss establishes clearly that the arrest of the Defendant, Hager, by a Pennsylvania Police Officer, Clish, was a valid warrantless arrest based upon probable cause (McCray v. Ill. 386 U. S. 300 , Ker v. California 374 U. S. 23 , Commonwealth v. Kenney, Pa., 297 Atl. 2d 794). At the time of arrest the officer knew from the confession of a Co-defendant that a felony had been committed in Maryland and that the Defendant had been implicated as the perpetrator thereof. He further knew the description of the vehicle involved and ⁴⁷⁸ had seen the Defendant, Hager, and the Co-defendant who had involved Hager, in the car several days previously.

Nothing further is necessary to provide probable cause for the Defendant’s arrest without a warrant.” Our examination of the record demonstrates to us that there was abundant support for the above findings. Indeed, the evidence discloses a remarkable performance of cooperative investigatory and detective work by state and local Maryland police officers and police officers in nearby Pennsylvania, acting swiftly and effectively in the apprehension of appellant and his two companions. The other individuals were Joseph John Albert (a co-defendant, age 19, who was sentenced to 30 years upon his plea of guilty) and Robert Lee Clark (who had not been apprehended at the time of trial in this case but was subsequently tried and convicted on February 21, 1975, and was also sentenced to a 30-year term.) The trio, residents of Washington County, Pennsylvania, came together in the afternoon hours of Monday, March 4, 1974, when they consumed two (2) fifths of vodka and smoked marijuana. They had the use of a 1967 Ford, with Pennsylvania license tag number 7Y-2267, a vehicle which had been borrowed by Albert to provide transportation to and from his employment at a junkyard.

Later in the day, the young men started to ride in the direction of Cumberland. Enroute, appellant and Clark decided to steal cars in Maryland. Clark thereafter stole a truck in Frostburg which he later abandoned. He then rejoined the other two and, in a shopping center parking lot outside Cumberland, he stole a Pontiac GTO in which he followed his cohorts into Cumberland proper.

In Cumberland, Albert noticed the victim walking on Green Street. The testimony developed that she was about to mail a letter and intended then to take a walk, an exercise in which she and her husband engaged almost daily. (On this occasion, however, he was not present.) Joseph Albert motioned appellant Hager to stop the vehicle and appellant did so. Albert alighted, followed the ⁴⁷⁹ victim, overcame her struggles and then dragged her into the front seat of the Ford.

She was transported to a location in the eastern slope of Big Range Mountain above Frostburg where she was raped by all three. This was preceded by unnatural and perverted acts which appellant required her to perform enroute to the scene. Jewelry was snatched from her neck and a small amount of money removed from her purse. Beaten about the face and head by appellant she sustained a broken jaw and a broken finger when she resisted the efforts of her captors to steal her wedding band and engagement ring.

The abduction had been witnessed by youths riding on motorcycles and by an adult citizen. The Maryland State Police in the Cumberland-Frostburg area and the Cumberland City Police were alerted for the Ford car with Pennsylvania license plates. The assailants returned the victim to the vicinity of Green Street at approximately 9 p.m. and sped from the scene. Shortly thereafter the state and local police were in hot pursuit of the vehicle and it was abandoned by the fleeing trio in front of the Continental Motel in Cumberland.

They took refuge in the dense woods behind the motel and escaped. (a) The Suppression Hearing One week prior to appellant’s trial, Judge Getty held an evidentiary hearing on the motions to dismiss. Appellant Hager testified in support of the motions and the State offered the testimony of Corporal John F. McGowan, Criminal Investigator for the Maryland State Police from Barrack “C” in LaVale; Frank Douglas Clish, Chief of Police of the Central Borough Police Department in Washington County, Pennsylvania, and William F. Baker, County Investigator, Office of State’s Attorney for Allegany County. The testimony developed the facts that the Maryland police ascertained the identity of the owner of the Ford by inquiry to the police department in Washington County, Pennsylvania and this information led them to the home of Joseph Albert.

On March 5, the day after the crime, Corporal ⁴⁸⁰ McGowan went to the California Police Department in Washington County, Pennsylvania, in the company of William Baker and Lieutenant Morrisey, a Cumberland detective. This occurred at approximately 2:15 p.m. Informed by the desk operator that Chief Clish already had Joseph Albert in custody, the Maryland officers interrogated Albert from 4:25 to 5:00 p.m. They obtained from Albert a written statement in which he implicated Hager and Clark, describing their roles in the crimes committed.

After advising Chief Clish of the confession and the implication of Hager and Clark, Corporal McGowan testified that . . Chief Clish informed me that he was very familiar with both men, that he would leave and try to see if he could locate them for us”; and that prior to his departure, Corporal McGowan and Mr. Baker related to him the details of the kidnapping and rape of the previous evening, Mr. Baker having interviewed the victim in the early morning of March 5, 1975 at Memorial Hospital in Cumberland where she was hospitalized. At approximately 8 p.m. Corporal McGowan received a radio message from Chief Clish that appellant Hager was in custody.

A half hour later Chief Clish delivered appellant to the California, Pennsylvania Police Department. During the course of the testimony of Mr. Clish, it was brought out that he had had occasion to arrest appellant Hager previously and had known Albert for 2V2 to 3 years. His search for Hager and Clark led him first to Clark’s residence and then to the residence of James Tallman. Chief Clish was accompanied by Officer Ronald Shumar of Redstone, Pennsylvania, as well as by Lieutenant Morrisey of Cumberland.

He was driving a Pennsylvania police vehicle. Lieutenant Morrisey remained in the car when they arrived at Tallman’s. Chief Clish quickly noticed appellant departing the house by a rear window, drew his revolver and ordered him to halt. Appellant complied.

Appellant was placed in a police vehicle of Redstone Township, Pennsylvania. The vehicle was operated by Pennsylvania Officer Shumar. Chief Clish operated his own vehicle back to the California Police Department. ⁴⁸¹ Mr. Baker testified that he did not see appellant until approximately 8:50 p.m. when be began to interview him after giving him his rights. He was jailed in California overnight and taken the next afternoon, March 6, to Republic, Pennsylvania, where, between 4 and 4:30 p.m. he was taken before a magistrate.

Appellant’s suppression testimony confirmed the fact of his apprehension at the residence of James Tallman. He testified that he had learned earlier, at the home of Robert Clark, that the police had called his (appellant’s) mother. It was she who informed appellant that Joseph Albert was in police custody. He testified, however, that after Chief Clish “pulled a gun on me,” the Maryland police came around and informed him that he was under arrest for a rape in Maryland.

He confirmed his interrogation by Mr. Baker and that he had given a brief oral statement but had refused to discuss any participation on his part in the alleged crimes, stating that he was not “going to hang myself.” He also testified that on March 6, between 12 and 1 p.m., while still in jail in California, Pennsylvania, he was “served with a Maryland warrant” and that between 4 and 4:30 p.m. he was taken to a magistrate’s office in Republic, Pennsylvania. He also testified that between the time of his arrest and the time he was taken before the magistrate in Republic, the police officers took samples of his hair, including pubic hair, and went to his house and obtained from his wife the underclothing which he wore the night before. The trial court was not, of course, required to accept Hager’s version of the facts surrounding his apprehension at the Tallman residence. The testimony of Chief of Police Clish, a Pennsylvania officer, was believed by the trial judge and was sufficient to establish that the arrest was made by Chief Clish, that it was a warrantless arrest but that it was made with probable cause.

The legality of appellant’s arrest must be determined by applying the law of the Commonwealth of Pennsylvania. Berrigan v. State, 2 Md. App. 666, 668 (1968), citing Miller v. United States, 357 U. S. 301 (1958); United States v. DiRe, 332 U. S. 581 (1948); ⁴⁸² Stanley v. State, 230 Md. 188 (1962). Furthermore, as this Court stated in Edwards v. State, 7 Md. App. 108 (1969), where we were concerned with a warrantless arrest of a Maryland suspect by Pennsylvania police: “[Wjhile the legality of the appellant’s arrest must be determined by the law of Pennsylvania, the jurisdiction in which made, Berrigan v. State, 2 Md. App. 666 , we think that under the law of that State, as in Maryland, a police officer may make an arrest without a warrant where he has reasonable grounds or probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested has committed the offense. See Commonwealth v. Negri, 198 A. 2d 595 (Pa.).” A later Pennsylvania case is confirmatory of the above statement of the law.

Commonwealth v. Kenney, 297 A. 2d 794, 796 (1972). In language strikingly appropriate to the present case the Court there stated: “. . . the probable cause for the warrantless arrest can be found in the information received by Lieutenant Patterson from Barry Marabel’s confession, wherein he implicated appellant as the individual who committed the crime. The confession of a co-defendant which implicates the suspect will supply the probable cause for a warrantless arrest. Cf.

Comm. v. Matthews, 446 Pa. 65 , 285 A. 2d 510 (1971).” (Emphasis added.) We think it plain that any warrant of arrest issued in Maryland and served upon appellant in Pennsylvania would be ineffective because a Maryland warrant has no validity beyond the boundaries of the State, Berrigan v. State, supra. The record does not contain evidence, independent of appellant’s testimony, concerning the attempted execution of any such warrant in Pennsylvania. More importantly, however, upon the evidence above outlined, we hold that the trial court correctly ruled that there was a valid warrantless arrest by Chief Clish, based upon probable cause. (b) Pennsylvania Criminal Rule of Procedure 118 Appellant argues at some length that the evidence against ⁴⁸³ him should have been suppressed because of noncompliance with Pennsylvania Rule 118 relating to “proceedings initiated by arrest without warrant.” The rule provides: “When a defendant has been arrested without a warrant, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him.” (Emphasis added.) The Rule thereafter provides that if the complaint charges a “court case” the defendant shall be given an immediate preliminary arraignment but that if the complaint charges a “summary offense” he shall have the option of an immediate trial or the opportunity for release upon security for his appearance at a trial within a time specified.

The evidence at the suppression hearing developed that the Maryland police officers were not aware of the Rule nor were they advised of it by the Pennsylvania officers. Chief of Police Clish of Pennsylvania was, of course, cognizant of it and testified that there was not at that time in Washington County, Pennsylvania, a