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COMMONWEALTH v. FUTCH (04/20/72)

decided: April 20, 1972.

COMMONWEALTH
v.
FUTCH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1970, No. 6865, in case of Commonwealth of Pennsylvania v. Clifford Futch.

COUNSEL

Sallie Ann Radick, Assistant Public Defender, with her John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones, Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result.

Author: Roberts

[ 447 Pa. Page 390]

We are asked to consider the effect of a claimed violation of Rule 118*fn1 of the Pennsylvania Rules of

[ 447 Pa. Page 391]

Criminal Procedure which prohibits "unnecessary delay" between arrest and the filing of a complaint and "preliminary arraignment" of a defendant. Defendant argues that as a result of the failure to comply with Rule 118, in-court identifications which he contends were based upon a lineup prior to being taken "before the proper issuing authority" were improperly admitted at trial. While agreeing with defendant that in-court identifications based on a lineup held in violation of the "unnecessary delay" provision of Rule 118 become inadmissible at trial, nevertheless we affirm appellant's judgment of sentence. We reach this result because the record establishes that in-court identifications of defendant by several eyewitnesses were not based on the challenged lineup but rather had an independent origin.*fn2

On August 22, 1970, at approximately 11:30 p.m., appellant Clifford B. Futch and an accomplice allegedly entered a Pittsburgh bar with the intention of committing a robbery. Their entrance and subsequent twoto five-minute stay in the bar was observed by most of the bar's approximately twelve patrons. During the course of the robbery several shots were fired and a patron of the bar was killed.

Futch was arrested without a warrant at 11:00 p.m., on the evening of August 25, 1970, three days after the robbery-murder. Without the assistance of counsel he was placed in a lineup the following afternoon at 12:15 p.m., some thirteen hours after his arrest. Thereafter at 1:00 p.m., defendant was finally taken before the "issuing authority".

[ 447 Pa. Page 392]

The Commonwealth first argues that Rule 118 is inapposite to the facts of this case because there was no "unnecessary delay" in presenting defendant before a magistrate. Such an assertion is difficult to square with the facts. Defendant was arrested at 11:00 p.m., and was held in custody some fourteen hours, placed in a lineup, and finally brought before a magistrate. Permissible delay between arrest and arraignment has been defined by Judge, now Chief Justice Burger, in the following fashion: "Necessary delay can reasonably relate to time to administratively process an accused with booking, fingerprinting and other steps and sometimes even to make same [sic] limited preliminary investigation into his connection with the crime for which he was arrested, especially when it is directed to possible exculpation of the one arrested." Adams v. United States, 399 F. 2d 574, 579 (D.C. Cir. 1968) (concurring opinion).

The Commonwealth concedes that it had ample probable cause to arrest defendant, thus there existed no necessity for additional time to ascertain whether the police did indeed have the right man. Nor were the police warranted or even constitutionally able to take additional time to interrogate defendant; the record reveals that defendant specifically refused to give a statement at the time of his arrest and repeatedly thereafter and indeed said that he would not answer any questions without the presence of a lawyer. Compare Commonwealth v. Koch, 446 Pa. 469, 288 A.2d 791 (1972). In view of the uncontested availability of a magistrate during much of this fourteen-hour ...


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