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COMMONWEALTH v. CHERRY (07/02/74)

decided: July 2, 1974.

COMMONWEALTH
v.
CHERRY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1971, No. 1999, in case of Commonwealth of Pennsylvania v. David Cherry.

COUNSEL

Harold L. Randolph, for appellant.

Bonnie Brigance Leadbetter, Assistant District Attorney, with her David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

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

Author: O'brien

[ 457 Pa. Page 202]

Appellant, David Cherry, was tried by a judge and jury and found guilty of murder in the first degree.

[ 457 Pa. Page 203]

Post-trial motions were denied, and appellant was sentenced to life imprisonment in a state correctional institution. This appeal followed.

The facts surrounding this appeal are as follows: On the evening of April 22, 1971, at or about Midnight, two Philadelphia police officers, while patrolling the 1600 block of Wellington, heard a gunshot. They observed five men alight from an automobile and run down the street. A sixth man, Morrell Reed, staggered out of the automobile and stated "They did it; they did it." Three of the five were immediately apprehended by the officers, one of the three being appellant, David Cherry.

Appellant was arrested and taken to police head-quarters, where he confessed to the homicide. Appellant filed a pre-trial motion to suppress his confession, which was denied by Judge Della Porta. Appellant now argues that the court erred in failing to suppress his confession and cites Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), to support his proposition.

Appellant was originally arrested at or about Midnight on April 22, 1971, and was taken directly to police headquarters. When the police learned that the victim had died, appellant was transferred to the homicide division, where questioning began at 2:10 a.m., on April 23, 1971. After being advised of his Miranda rights, appellant orally admitted knowledge of the crime, but denied any complicity in it. The police, unsatisfied with this response, continued questioning appellant until 3:00 a.m., when they left him alone. He was questioned briefly at 4:50 a.m., was fed and allowed to use the restroom at 5:25 a.m., and then was left alone again until 9:15 a.m., at which time he consented to and was given a polygraph test. The test was conducted from 9:15 a.m., until 2:00 p.m., on April 23, 1971. At that time, appellant was told he

[ 457 Pa. Page 204]

    had failed the polygraph test and agreed to give a statement, the taking of which was concluded at 4:00 p.m., ...


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