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decided: July 2, 1973.


Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1969, Nos. 221, 222, and 223, in case of Commonwealth of Pennsylvania v. Joseph Dutton.


Charles A. Lord and John B. Day, for appellant.

Milton M. Stein, Assistant District Attorney, with him James J. Wilson, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones and Mr. Justice Eagen join in this dissenting opinion.

Author: Manderino

[ 453 Pa. Page 548]

Appellant, Joseph Dutton, was convicted of murder in the first degree, burglary and aggravated robbery on January 28, 1970, following a jury trial. Post-trial motions were denied. A sentence of life imprisonment was imposed on December 1, 1971, and this appeal followed.

Prior to trial, appellant requested the suppression of an inculpatory statement allegedly given by the appellant even though he refused to sign the statement. The trial court refused to suppress the statement. In his post-trial motions, appellant again claimed that the statement was involuntary and was a product of unnecessary

[ 453 Pa. Page 549]

    delay between arrest and preliminary arraignment.

Appellant was arrested without a warrant at approximately 10:05 a.m., at his home on January 28, 1969. Approximately seven hours earlier, a night watchman had been killed at a laundry company. Appellant was taken to police headquarters and a first round of interrogation began at 10:32 a.m. He was given advice concerning his constitutional rights and denied any involvement in the crime. The questioning of the appellant continued throughout the day and did not end until approximately 10:18 p.m., at which time the appellant refused to sign a formal statement. Appellant was not taken before a magistrate until the following day. The exact time is not clear from the record, but it was apparently at 12:41 p.m., approximately twenty-six hours after his arrest.

During the first eight hours after appellant's arrest, he was subjected to six different interrogation periods. The shortest period was approximately a half-hour and the longest period was approximately two hours. After the first three interrogation periods, a new officer began his participation in the interrogation process. After the first five interrogation sessions, another officer, who had not participated in the first five interrogation sessions, began his participation in the interrogation process. At one point, the appellant was given a polygraph test. During the first five interrogation sessions, appellant continually denied any involvement in the crime. After the sixth interrogation session, involving three officers, had been in progress continually for approximately an hour and a half, appellant, for the first time, made oral statements admitting involvement in the crime. This was approximately eight hours after his arrest and following six separate interrogation sessions throughout the day during which confrontation took place between the appellant and at least six different

[ 453 Pa. Page 550]

    police officers. A seventh interrogation session then followed for approximately three hours. At about 10:18 p.m., the appellant was asked to sign a formal statement and refused. He did write thereon the words refused to sign and his initials.

The appellant claims that his statements were the product of an unnecessary delay between his arrest and his preliminary arraignment and violated Rule 116(a) of the Pa. R. Crim. P. Rule 116(a), in effect at that time (now covered by Rule 118), provided: "When a defendant has been arrested with or without warrant, in a court case . . . he shall be taken without unnecessary delay before the proper issuing authority for a preliminary arraignment."

In Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965), we specifically called attention to the requirement of taking the person arrested without unnecessary delay before the proper issuing authority for a preliminary arraignment. We there said that unnecessary delay is ". . . regrettable and to be discouraged. . . ." In Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), we held that a violation of the Rules requires that the trial court ". . . exclude all evidence obtained during 'unnecessary delay' except that which . . . has no reasonable relationship to the delay whatsoever." See also Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973). In this case the delay which occurred between arrest and arraignment was clearly related to the statements obtained. The appellant for approximately eight hours denied any involvement. It was only after six interrogation sessions involving various officers that the appellant made any inculpatory statement. See Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 148-156, 239 A.2d 426, 429-434 (1968). The delay in this case was not necessary for any administrative processing; neither was the delay caused by the unavailability of a magistrate. The

[ 453 Pa. Page 551]

    interrogation of the appellant throughout the day took place on the second floor of a building in which magistrates were located on the first floor. This was known to the police. We must conclude under these circumstances that the unnecessary delay was related to the evidence.

Judgment of sentence reversed and case remanded for a new trial.


Judgment of sentence reversed and case remanded for new trial.

Dissenting Opinion by Mr. Justice Pomeroy:

In Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), this Court adopted "the federal approach" to evidence obtained during an unnecessary delay prior to arraignment, and announced a procedural rule excluding all evidence so obtained from admission at trial.*fn1 Earlier this year, in Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973), we carefully considered the applicability of the Futch decision to a confession obtained during a period of unnecessary delay following an arrest in 1969 and, refusing implicitly to hold such a confession without more inadmissible, we instead applied the "totality of the circumstances" approach of our pre- Futch law.*fn2 Today, however, the Court ignores Riggins and removes all restrictions on the retroactive application of Futch, at least as far back

[ 453 Pa. Page 552]

    as January 1, 1965, the effective date of former Rule 116 of The Pennsylvania Rules of Criminal Procedure (predecessor of the present Rule 118).*fn3 In my opinion this may well prove to be costly in terms of the administration of justice and futile in terms of correction of police procedures. I must dissent.

Like its federal prototypes, McNabb v. United States, 318 U.S. 332, 87 L. Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 1 L. Ed. 2d 1479 (1957), our decision in Futch was not based on constitutional considerations. The exclusionary rule we promulgated was grounded on the Court's supervisory powers over the administration of justice in the courts of this Commonwealth. We have heretofore consistently denied retrospective effect to our supervisory rulings, even as to matters as closely related to the fairness of trial proceedings as jury instructions, see Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971); Commonwealth v. O'Neal, 441 Pa. 17, 271 A.2d 497 (1970); Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960).

The effective date of a new rule of evidence designed to control police conduct should be determined, in my view, by the same considerations which would govern a novel ruling of constitutional law. See Fuller v. Alaska, 393 U.S. 80, 21 L. Ed. 2d 212 (1968). As these have been formulated by the United States Supreme Court, they include: (1) the purpose to be served by the new standards, (2) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards. Where on balance these considerations do not

[ 453 Pa. Page 553]

    favor retroactivity, the current federal practice is to apply the new standard only where prohibited conduct takes place after the announcement of the rule. Desist v. United States, 394 U.S. 244, 22 L. Ed. 2d 248 (1969); Williams v. United States, 401 U.S. 646, 28 L. Ed. 2d 388 (1971). Examining Futch in this light, I can only conclude that its purpose will be fully realized by a solely prospective application.

*fn1 Congress repudiated this approach by enacting the Omnibus Crime Control and Safe Streets Act of 1968, Act of June 19, 1968, Pub. L. 90-351, 82 Stat. 210, 18 U.S.C. ยง 3501.

*fn2 Although the appellant in Riggins made but scant mention of delay in arraignment, several members of this Court during oral argument indicated to the Commonwealth's attorney that Futch might well be involved. Consequently the Commonwealth sought and obtained leave to file a supplemental brief on the application of Futch to an arrest and delay in arraignment occurring in 1969, prior to the effective date of Pa. R. Crim. P. 118 (eff. May 1, 1970). This Court's refusal to apply the Futch rule in Riggins can only signify that we there rejected the very argument for retroactivity which is today espoused by the majority.

*fn3 The initial mistake in this respect was made in Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973), in which, without discussion, the rule of Futch was applied to a 1971 arrest. The error of Tingle is thus compounded in the case at bar.

*fn4 Admittedly the burden on our judicial system would not be serious if the retroactive effect which the majority gives Futch were to be restricted to defendants who have raised the question on post-trial motions or direct appeals which are still pending. This will be the situation if the Court continues, as I believe it should, to limit post-conviction collateral relief to constitutionally based claims, since the rule in Futch is not so mandated. Post-conviction relief is so limited in the federal courts and, thus far, has been similarly limited by this Court. See Commonwealth v. Smulek, 446 Pa. 277, 284 A.2d 763 (1971); Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970); Commonwealth v. Musser, 437 Pa. 131, 262 A.2d 678 (1970). But see Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973), with which Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973) should be compared.

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