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decided: October 16, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, Nos. 2282 to 2285, inclusive, in case of Commonwealth of Pennsylvania v. Robert Blagman.


D. M. Masciantonio, for appellant.

David Richman, Assistant District Attorney, with him Melvin Dildine, Assistant 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. Chief Justice Jones. Mr. Justice Pomeroy concurs in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones, Mr. Justice O'Brien, Mr. Justice Nix and Mr. Justice Manderino join in this concurring opinion.

Author: Jones

[ 458 Pa. Page 432]

Appellant, Robert Blagman, was convicted by a jury of murder in the first degree, robbery, burglary and conspiracy. Following the denial of post-trial motions, a life sentence was imposed for murder and concurrent lesser sentences were imposed for appellant's other offenses. This direct appeal followed.

On May 6, 1970, decedent, Isadore Selez, an elderly junk dealer, was allegedly robbed and murdered by four youths. The following day, four youths including appellant, then aged 16 years, were arrested for an unrelated copper-tubing burglary. Arresting officers, believing that the youths resembled those described in connection with the Selez homicide, transported the four to homicide headquarters.

The chronology of the events that followed is not in dispute. At approximately 6:15 p.m. on May 7, 1970, shortly after his arrest for burglary, appellant was warned of his constitutional rights. Although appellant's

[ 458 Pa. Page 433]

    original statement to the police denied participation in the homicide, appellant volunteered to "tell what happened" and after approximately forty minutes of questioning agreed to submit to a polygraph test. After approximately a half hour, and upon discovering that all polygraph machines were in use, the police questioned appellant for another forty minutes. Less than an hour after this second round of questioning appellant was taken for his polygraph test. Prior to the test appellant signed a written waiver form indicating that he was taking the examination voluntarily. The test lasted an hour and a half during part of which time appellant was fed. At the conclusion of the test and shortly before 10:30 p.m., appellant admitted his participation in the Selez murder. During the interview which immediately ensued, appellant further explained the circumstances surrounding the homicide and by approximately 1:15 a.m., on the morning of May 8, 1970, the essential details of appellant's criminal activity were reduced to writing.

After relating his involvement in the murder, appellant was left alone. In the meantime, the police escorted appellant's mother to homicide headquarters. When appellant's mother arrived, she was given time to speak with her son and additional warnings were given to both. A formal statement which was practically a verbatim account of earlier admissions, was then recorded.

Prior to trial, a motion to suppress the statements obtained during the evening of May 7 and the early hours of May 8 was denied. Relying upon this Court's application of Rule 118*fn* of the Pennsylvania Rules of Criminal Procedure in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), appellant now argues

[ 458 Pa. Page 434]

    that his confession was improperly admitted, thereby entitling him to a new trial.*fn1 Although a minority of the Court has consistently held that Futch should only be applied prospectively, see, e.g., Commonwealth v. Dixon, 454 Pa. 444, 448, 311 A.2d 613, 615 (1973) (dissenting opinion) and Commonwealth v. Dutton, 453 Pa. 547, 551, 307 A.2d 238, 240 (1973) (dissenting opinion), based on the particular facts presented here, even applying Futch, relief must be denied.

This case presents a situation where approximately four and one-half hours passed prior to appellant's initial confession. Nevertheless, Futch and cases arising therefrom do not stand for the proposition that delay alone, exclusive of other factors, mandates the suppression of a confession. See, e.g., Commonwealth v. Wayman, 454 Pa. 79, 83, 309 A.2d 784 (1973), and Commonwealth v. Tingle, 451 Pa. 241, 244-45, 301 A.2d 701, 702-03 (1973). Rather those cases indicate that, after determining that a delay existed, our inquiry should focus on whether such delay was unnecessary, whether prejudicial evidence was obtained, and whether such prejudicial evidence was reasonably related to the

[ 458 Pa. Page 435]

    delay. In this case, since there is a firm basis for finding the delay between appellant's arrest and oral confession both reasonable and not unnecessary, our inquiry need go no further.*fn2

The police have an absolute duty to both the public and the accused to investigate the circumstances of a crime in order to ascertain the accused's possible connection with an alleged offense. "'Questioning suspects is indispensable in law enforcement' . . . Public interest requires that interrogation, and that at a police station, not completely be forbidden, so long as it is conducted fairly, reasonably, within proper limits and with full regard to the rights of those being questioned.'" Culombe v. Connecticut, 367 U.S. 568, 578-79 (1961); Commonwealth v. Riggins, 451 Pa. 519, 526-27, 304 A.2d 473, 477 (1973). See also, Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973). Here we have a situation where the initial interrogation of appellant fully complied with this standard. The evidence in this case shows that, after arrest and adequate " Miranda warnings," appellant was only questioned twice for relatively short periods.*fn3 He then rested, ate,

[ 458 Pa. Page 436]

    used bathroom facilities, waited for and voluntarily received a polygraph examination, and within four and one-half hours of arrest revealed his participation in the crime.

More important than the brevity of this delay, however, is the fact that such delay was justified. The fact that all but the initial constitutional questioning of appellant occurred after learning that polygraph machines were inaccessible and that appellant was agreeable to waiting for such examination supports this contention. As was recently repeated in Futch, 447 Pa. at 392, 290 A.2d at 418: "Necessary delay can reasonably relate to time to administratively process an accused with booking, fingerprinting and other steps and sometimes even to make same [sic] limited preliminary investigation into his connection with the crime for which he was arrested, especially when it is directed to possible exculpation of the one arrested. Adams v. United States, 399 F. 2d 574, 579 (D. C. Cir. 1968) (concurring opinion)." Since the accused offered to take the polygraph test within an hour of arrest in order to exculpate himself from the alleged homicide charge, the limited delay due to the administering of such test is the type of permissible preliminary investigation envisioned in Futch. Consequently, the time lapse preceding and resulting from the polygraph examination cannot be said to constitute an unnecessary delay. Furthermore, since it was at the conclusion of this examination that appellant admitted his involvement in the alleged crime and

[ 458 Pa. Page 437]

    since during the interview which immediately followed appellant willingly substantiated and clarified his earlier admission, the subsequent "period of explanation" is likewise not objectionable on Futch grounds. See Commonwealth v. Terry, 457 Pa. 185, 321 A.2d 654 (1974).

Appellant further asks the Court to consider as part of the relevant delay the time which elapsed between oral and formal statements. However, since appellant's formal statement was merely a repetition of his earlier incriminating confessions and since both oral and written statements had been admitted in the trial below, even if we were to find the delay following appellant's oral statement unnecessary, at best it would be harmless error. Chapman v. California, 386 U.S. 18 (1967). Accordingly we need not consider such delay at this time.

Appellant last contends that under the totality of the circumstances surrounding his oral and signed statements, those statements were made involuntarily. In light of the fact that on appeal by defendant, "appellate review of a suppression hearing is to consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as fairly read in the context of the record as a whole, remains uncontradicted," Culombe v. Connecticut, supra, 367 U.S. at 604, Commonwealth v. Riggins, supra, 451 Pa. at 522, 304 A.2d at 474, we are left with the unimpugned conclusion that defendant's confessions were freely given, after voluntarily and knowingly waiving rights to counsel and to remain silent, and that admissions were not elicited out of fear.

For the above-stated reasons we are of the opinion that the court below properly admitted the Commonwealth's evidence and, accordingly, judgment of sentence is affirmed.


Judgment of sentence affirmed.

[ 458 Pa. Page 438]

Concurring Opinion by Mr. Justice Roberts:

I concur in the result. In my view, appellant has not properly preserved for appellate review the issue of an alleged violation of Pa. R. Crim. P. 118 (now 130).*fn*

Although appellant's initial suppression hearing was held before our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), his trial began almost five months after Futch was decided. Defense counsel had ample opportunity to move before trial for a new suppression hearing. Commonwealth v. Johnson, 457 Pa. 554, 558 & n.4, 327 A.2d 632, 634-35 & n.4 (1974). However, it was not until trial was completed that appellant in post-trial motions asserted for the first time a claim under Rule 118.

In my judgment, appellant's claim of unnecessary delay was not timely presented and thus may not be considered here. Commonwealth v. Johnson, 457 Pa. at 558, 327 A.2d at 635; Commonwealth v. Williams, 454 Pa. 261, 263, 311 A.2d 920, 921 (1973); Commonwealth v. Sasser, 453 Pa. 622, 623, 309 A.2d 352, 353 (1973) (per curiam); Pa. R. Crim. P. 323(b). See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741 (1972).

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