Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, Nos. 316, 317, and 322, in case of Commonwealth of Pennsylvania v. John Dickerson.
Edwin P. Smith, and Dubyn & Smith, for appellant.
James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J. Wright, P. J., would affirm the judgment below.
[ 226 Pa. Super. Page 426]
The principal issue presented by this appeal is whether the confession given by appellant should have been suppressed because it resulted from an unnecessary delay in taking him before a magistrate. The lower court refused to suppress the confession. We are compelled to reverse.
At approximately 1:15 a.m. on February 25, 1972, appellant was arrested by police, without a warrant, for the assault and robbery of a woman. He was immediately taken to the scene of the crime where he was identified by several witnesses. Appellant was then transported to the police station. At 3:00 a.m., he was advised of his constitutional rights. He remained silent and was placed in a cell. Twelve hours later, at 3:00 p.m., appellant was questioned and he denied any knowledge of the crime. The questioning stopped at 3:30 p.m. Earlier, appellant had indicated that he desired an attorney to be present at a forthcoming lineup. At 5:50 p.m., an attorney from the Defender Association arrived at the police station and assisted in arranging the lineup, which was held shortly thereafter. After the lineup, the attorney left, but before leaving he presented the police with a printed statement signed by the appellant which requested that the appellant no longer be questioned by them. However,
[ 226 Pa. Super. Page 427]
at 6:50 p.m., the police again questioned the appellant after advising him of his constitutional rights. At about 7:15 p.m., the appellant admitted that he had attacked the victim and other women. A formal statement was completed and signed by 10:50 p.m. At 11:00 p.m., appellant was taken before a magistrate for preliminary arraignment.
Two suppression hearings were held prior to trial. In one, the lower court ruled that the confession given by appellant was admissible at trial. In the other, the lower court ruled that an identification of the appellant at the scene of the crime was also admissible. The appellant was tried, convicted, and sentenced.
The appellant advances several arguments for excluding his confession from evidence. We find merit in one of them and will not discuss the others. Since the appellant will be given a new trial, we will also discuss the admissibility of the identification testimony.
At the first suppression hearing, the lower court found the above recited facts. It thus appears that 18 hours elapsed from the time of appellant's arrest to the time when he admitted guilt. It was more than 21 hours until he signed a formal statement. Only after that was appellant taken to a magistrate.
Rule 118 of the Pennsylvania Rules of Criminal Procedure directs that "[w]hen 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." The Pennsylvania Supreme Court, in Commonwealth v. Futch, 447 Pa. 389, 394, 290 A.2d 417, 419 (1972), has construed Rule 118 as requiring that "all evidence obtained during 'unnecessary delay' except that which . . . has no reasonable relationship to the delay whatsoever" must be ...