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COMMONWEALTH v. HANCOCK (03/25/74)

decided: March 25, 1974.

COMMONWEALTH
v.
HANCOCK, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, No. 1675, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1971, Nos. 806, 807 and 808, in case of Commonwealth of Pennsylvania v. Roger Hancock.

COUNSEL

John W. Packel, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

James T. Ranney, Assistant District Attorney, with him Milton M. Stein, 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 Nix. Mr. Chief Justice Jones, Mr. Justice Eagen, Mr. Justice Pomeroy and Mr. Justice Manderino concur in the result.

Author: Nix

[ 455 Pa. Page 584]

On February 5, 1971, at approximately 9:20 P.M., Mr. Charles Presley was accosted on the highway by an

[ 455 Pa. Page 585]

    individual, armed with a small revolver, demanding money. After a brief altercation, Presley was shot in the leg as he attempted to flee. At or about this time Officer Thompson, a member of the Philadelphia Police Department, while on patrol with his partner, heard what appeared to them to be the sound of gunfire. They responded by driving their vehicle in the direction of the sound where they observed appellant and two other men. Appellant attempted to flee but was quickly apprehended. A search of his person uncovered a .22 caliber derringer pistol which contained one spent cartridge and one live cartridge. Appellant was then arrested for violation of the Uniform Firearms Act.*fn1

While at detective headquarters, one of the police officials recognized the similarity between the appearance of the appellant and the description that had been given by Mr. Presley of his assailant. Appellant was held in custody for over nineteen hours before being taken to the "proper issuing authority". During this period he signed a waiver of his right to counsel at a lineup and was identified by Presley. After conviction and sentence in the court below an appeal was taken to the Superior Court which affirmed the judgment of sentence per curiam. Commonwealth v. Hancock, 221 Pa. Superior Ct. 742, 289 A.2d 177 (1972). We granted allocatur and now affirm.

Relying upon this Court's opinion in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny, appellant argues that the identification testimony was improperly admitted at trial entitling him now to a reversal of the judgment of sentence. We agree that our ruling in Commonwealth v. Futch, supra, is applicable to the instant facts but also find that

[ 455 Pa. Page 586]

    relief must be denied appellant for the same reasons we denied relief to Clifford B. Futch.*fn2

Pa. R. Crim. P. 118*fn* provides that where an accused is arrested without a warrant he must be taken without unnecessary delay ...


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