PRICE, Judge:
Appellee, John B. Waters, was convicted of rape1 and burglary.2 The lower court granted appellee’s post-verdict motion for a new trial, holding that his arrest and subsequent confession were tainted by an illegal search, and, therefore, the confession should have been suppressed.3 The Commonwealth has appealed from this order.
At approximately 5:30 a.m. on May 25, 1975, the prosecutrix was awakened, blindfolded and raped by the appellee, who had broken into her apartment. Although she was unable to see her assailant’s face, she informed the police [126]*126that he was black, about five feet one inch in height and in his early twenties. While interviewing Geraldine Hopkins, a tenant in the same apartment building, Detective Lubiejewski was informed that, at approximately the same time as the alleged rape, a Negro male, who lived in apartment A-6 and identified himself as “John,” unsuccessfully requested admittance to her apartment. Detective Lubiejewski also learned from his supervisor that an anonymous caller had stated that “John, the man that did the rape, is now in apartment A-6.”
Detective Lubiejewski and two associates approached apartment A-6 and knocked on the door. Although no one answered, the detectives heard “muffled sounds” from within the apartment. They knocked a second time and announced their identity. When no one answered, they forced the door and entered. The muffled sounds were emanating from a radio in the kitchen; however, the premises were unoccupied.
The detectives found two letters addressed to Wanda Conyers, apartment A-5, on a table next to the door.4 Detective Lubiejewski looked through a telephone directory, which he found on a table, and discovered the name and address of appellee’s mother. The detectives telephoned Mrs. Waters and learned that appellee was sleeping at her home. Appellee was arrested at approximately 10:30 a.m. and taken to West Detective Division where he waived his Miranda rights and gave an inculpatory statement.
The Commonwealth argues that even assuming the illegality of the search, appellee’s statement was admissible under the Supreme Court’s decision in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Initially, we note that the basic question is “whether, granting establishment of the primary illegality, the evidence to [127]*127which [the] 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.” Wong Sun v. United States, supra at 488, 83 S.Ct. at 417. Moreover, “[m]ere ‘but-for’ causation is not sufficient to establish the causative relationship necessary to taint . . . post-illegal arrest verbal evidence.” Commonwealth v. Bishop, 425 Pa. 175, 182 n.5, 228 A.2d 661, 665 n.5 (1967); see also Wong Sun v. United States, supra; Commonwealth v. Richard, 233 Pa. Super. 254, 336 A.2d 423 (1975). These rules apply where, as here, it is charged that an alleged illegal search tainted an arrest and subsequent confession.
The Commonwealth relies extensively on Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). While not necessarily controlling, Garvin is instructive.5 The Supreme Court pointed out that “[n]o law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusers.” Commonwealth v. Garvin, supra 448 Pa. at 264, 293 A.2d at 37; see also United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967). In the instant case, the only effect of the alleged illegal search was to accelerate the time of appellee’s arrest. The information from the telephone directory did not identify appellee as the attacker or implicate him in the rape.6 The detectives intended to arrest appellee when they went to his apartment. They used the information merely to locate him. Under a very similar set of circumstances the Court of Appeals for the Fourth Circuit held, in Leek v. Maryland, 353 F.2d 526 (4th Cir. 1965), that the evidence produced at trial was so attenuated from the information gathered during the illegal search that the trial judge was [128]*128justified in admitting the evidence.7 The court ruled that “[t]o hold that the evidence in question was tainted by the illegal act of the police would be tantamount to saying that if the police conduct themselves improperly in any manner . then the trial must be set aside.” Leek v. Maryland, supra at 528. We hold that appellee’s arrest and inculpatory statement were not tainted by any illegality in the search.
In appellee’s brief, it is contended that, at the time of his arrest, the police did not have probable cause to believe that he committed the rape, and, therefore, his confession should have been suppressed as the fruit of an illegal arrest. Appellee’s pre-trial application to suppress contained the following averment:
“17. The alleged confession . . . was a result of an illegal arrest in that probable cause for the arrest was obtained by the unlawful search of [appellee’s] apartment without a valid search warrant or the existence of circumstances to justify a warrantless search.”
The substance of appellee’s pre-trial theory was that his arrest was illegal because probable cause resulted from information gathered during an illegal search. His confession, therefore, should have been suppressed as the fruit of the illegal arrest. This contention, which has already been discussed, presents a substantially different theory than that pressed on this appeal. Appellee now argues that regardless of the search and seizure issues, the confession must be suppressed because it was tainted by an arrest without probable cause.
As previously pointed out, the search revealed no evidence implicating appellee in the rape. Since the prosecution demonstrated that probable cause was not obtained during the search, the major premise to appellee’s pre-trial [129]*129theory was refuted. It can hardly be said that it was incumbent on the prosecution to prove the existence of probable cause when it was not directly in issue.
The Supreme Court pointed out in Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975) that:
“Appellate Courts render a disservice to judicial economy and the efficient operation of our court system where they freely accept issues that could have and should have been first presented to the courts below for their consideration.
[S]uch a procedure . . . deprives the reviewing court of the benefit of the reasoning of the lower court on the issues at hand . . . .
Free access — add to your briefcase to read the full text and ask questions with AI
PRICE, Judge:
Appellee, John B. Waters, was convicted of rape1 and burglary.2 The lower court granted appellee’s post-verdict motion for a new trial, holding that his arrest and subsequent confession were tainted by an illegal search, and, therefore, the confession should have been suppressed.3 The Commonwealth has appealed from this order.
At approximately 5:30 a.m. on May 25, 1975, the prosecutrix was awakened, blindfolded and raped by the appellee, who had broken into her apartment. Although she was unable to see her assailant’s face, she informed the police [126]*126that he was black, about five feet one inch in height and in his early twenties. While interviewing Geraldine Hopkins, a tenant in the same apartment building, Detective Lubiejewski was informed that, at approximately the same time as the alleged rape, a Negro male, who lived in apartment A-6 and identified himself as “John,” unsuccessfully requested admittance to her apartment. Detective Lubiejewski also learned from his supervisor that an anonymous caller had stated that “John, the man that did the rape, is now in apartment A-6.”
Detective Lubiejewski and two associates approached apartment A-6 and knocked on the door. Although no one answered, the detectives heard “muffled sounds” from within the apartment. They knocked a second time and announced their identity. When no one answered, they forced the door and entered. The muffled sounds were emanating from a radio in the kitchen; however, the premises were unoccupied.
The detectives found two letters addressed to Wanda Conyers, apartment A-5, on a table next to the door.4 Detective Lubiejewski looked through a telephone directory, which he found on a table, and discovered the name and address of appellee’s mother. The detectives telephoned Mrs. Waters and learned that appellee was sleeping at her home. Appellee was arrested at approximately 10:30 a.m. and taken to West Detective Division where he waived his Miranda rights and gave an inculpatory statement.
The Commonwealth argues that even assuming the illegality of the search, appellee’s statement was admissible under the Supreme Court’s decision in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Initially, we note that the basic question is “whether, granting establishment of the primary illegality, the evidence to [127]*127which [the] 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.” Wong Sun v. United States, supra at 488, 83 S.Ct. at 417. Moreover, “[m]ere ‘but-for’ causation is not sufficient to establish the causative relationship necessary to taint . . . post-illegal arrest verbal evidence.” Commonwealth v. Bishop, 425 Pa. 175, 182 n.5, 228 A.2d 661, 665 n.5 (1967); see also Wong Sun v. United States, supra; Commonwealth v. Richard, 233 Pa. Super. 254, 336 A.2d 423 (1975). These rules apply where, as here, it is charged that an alleged illegal search tainted an arrest and subsequent confession.
The Commonwealth relies extensively on Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). While not necessarily controlling, Garvin is instructive.5 The Supreme Court pointed out that “[n]o law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusers.” Commonwealth v. Garvin, supra 448 Pa. at 264, 293 A.2d at 37; see also United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967). In the instant case, the only effect of the alleged illegal search was to accelerate the time of appellee’s arrest. The information from the telephone directory did not identify appellee as the attacker or implicate him in the rape.6 The detectives intended to arrest appellee when they went to his apartment. They used the information merely to locate him. Under a very similar set of circumstances the Court of Appeals for the Fourth Circuit held, in Leek v. Maryland, 353 F.2d 526 (4th Cir. 1965), that the evidence produced at trial was so attenuated from the information gathered during the illegal search that the trial judge was [128]*128justified in admitting the evidence.7 The court ruled that “[t]o hold that the evidence in question was tainted by the illegal act of the police would be tantamount to saying that if the police conduct themselves improperly in any manner . then the trial must be set aside.” Leek v. Maryland, supra at 528. We hold that appellee’s arrest and inculpatory statement were not tainted by any illegality in the search.
In appellee’s brief, it is contended that, at the time of his arrest, the police did not have probable cause to believe that he committed the rape, and, therefore, his confession should have been suppressed as the fruit of an illegal arrest. Appellee’s pre-trial application to suppress contained the following averment:
“17. The alleged confession . . . was a result of an illegal arrest in that probable cause for the arrest was obtained by the unlawful search of [appellee’s] apartment without a valid search warrant or the existence of circumstances to justify a warrantless search.”
The substance of appellee’s pre-trial theory was that his arrest was illegal because probable cause resulted from information gathered during an illegal search. His confession, therefore, should have been suppressed as the fruit of the illegal arrest. This contention, which has already been discussed, presents a substantially different theory than that pressed on this appeal. Appellee now argues that regardless of the search and seizure issues, the confession must be suppressed because it was tainted by an arrest without probable cause.
As previously pointed out, the search revealed no evidence implicating appellee in the rape. Since the prosecution demonstrated that probable cause was not obtained during the search, the major premise to appellee’s pre-trial [129]*129theory was refuted. It can hardly be said that it was incumbent on the prosecution to prove the existence of probable cause when it was not directly in issue.
The Supreme Court pointed out in Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975) that:
“Appellate Courts render a disservice to judicial economy and the efficient operation of our court system where they freely accept issues that could have and should have been first presented to the courts below for their consideration.
[S]uch a procedure . . . deprives the reviewing court of the benefit of the reasoning of the lower court on the issues at hand . . . . Where the parties below were not aware that a particular issue is being raised, it [is] quite likely that testimony germane to that issue would be overlooked or believed unnecessary and consequently not presented.” Id. 464 Pa. at 124, 346 A.2d at 52.
This is particularly true in the present situation. Even assuming a lack of probable cause, the Commonwealth could have attempted to demonstrate that the confession was not tainted by the illegal arrest. See, e. g., Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22 (3rd Cir. 1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966); Commonwealth v. Brooks, 468 Pa. 547, 364 A.2d 652 (1976). This court cannot divine what might have transpired at hearing if the issues had been raised properly. We must, therefore, hold that appellee waived this theory by not raising it in his suppression application. Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975); Commonwealth v. Mitchell, supra.
The order of the lower court granting a new trial is reversed and the case is remanded for sentencing.
SPAETH, J., concurs in the result.
HOFFMAN, J., files a dissenting opinion in which CER-CONE, J., joins.