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decided: September 23, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, Nos. 84, 85, and 86, in case of Commonwealth of Pennsylvania v. William J. Bradwell.


Stuart H. Schuman and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

John H. Isom, Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 231 Pa. Super. Page 37]

The main issue in this appeal is whether the lower court should have suppressed appellant's confessions because they were obtained during a period of unnecessary delay after his arrest and before his preliminary arraignment.

In the early morning hours of January 25, 1972, a fire broke out in an apartment building in Philadelphia. Appellant, the custodian of the building, was arrested without a warrant by police in connection with the fire around 8:00 a.m. that same day.*fn1 Because appellant, at the time of his arrest, was visibly intoxicated and could not understand his Miranda [ Miranda v. Arizona, 384 U.S. 436 (1966)] rights, he was placed in a cell at the West Detective Division. At 1:00 p.m., appellant was awakened and taken to a detention room where he was given a sandwich. Shortly thereafter, according to the police, he was warned of his constitutional rights and made an exculpatory statement. Between 2:45 p.m. and 3:45 p.m. appellant was not disturbed. At 4:05 p.m. appellant was again questioned by police and made another exculpatory statement which was reduced to writing. When the questioning ended at 5:00 p.m., appellant was given food and allowed to rest while handcuffed to a chair. There was testimony from police officers that they again warned appellant of his constitutional rights from 6:15 p.m. to 6:35 p.m. Appellant then made a formal exculpatory statement that began at 7:15 p.m. and lasted until 9:15 p.m. Afterwards, appellant

[ 231 Pa. Super. Page 38]

    was transferred to the Police Administration Building for a polygraph test to evaluate the exculpatory statements he had made. At the Police Administration Building, appellant was given food and warned of his rights regarding the polygraph test. Between 11:50 p.m. and 12:05 a.m. of January 26, 1972, the polygraph test was administered to appellant. After the test was completed, Sergeant Gallagher, the administrator of the test, and Lieutenant McGinley, one of the officers who had been investigating the fire, discussed the results of the test. Lieutenant McGinley then entered the room where appellant was alone, still attached to the polygraph device. At that moment, appellant asked how he had done. Although Lieutenant McGinley knew that the results were inconclusive, he replied that he had no idea and that appellant himself should know how well he did. Appellant then asked what would happen to him. Lieutenant McGinley answered that he would be charged with arson and that the penalty for arson was twenty years. Lieutenant McGinley added that he felt no sympathy for appellant and that people had been pretty nice to him. Following those remarks, appellant told Lieutenant McGinley that he did not mean to hurt anybody. After making a complete oral confession to Lieutenant McGinley and another officer who entered the room, appellant signed a formal inculpatory statement which was completed by 4:30 a.m. on January 26, 1972. Appellant was finally taken for a preliminary arraignment at 6:40 a.m. on January 26, 1972. However, for reasons not apparent in the record, the arraignment was not held until 2:30 p.m., more than 30 hours after appellant's arrest.

After reviewing the record, we have come to the conclusion that this case is controlled by Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), and the incriminating statements made by appellant more than 16 hours after his arrest should have been

[ 231 Pa. Super. Page 39]

    suppressed as having been obtained during a period of unnecessary delay prior to appellant's arraignment.*fn2

Rule 118 (now Rule 130) of the Pennsylvania Rules of Criminal Procedure directs, inter alia: "When 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." Our Supreme Court in Commonwealth v. Futch, supra at 394, 290 A.2d at 419, 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 excluded. In Futch, a 14-hour delay between defendant's arrest and his presentment to the magistrate, during which time he was identified in a lineup, was held to be "unnecessary delay." Moreover, in Futch, the identifications obtained during the delay were found to be a product thereof because of the absence of counsel at the lineup which was also of a suggestive nature. Therefore, the applicable test in determining whether Rule 118 (now Rule 130) has ...

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