Harry D. Sporkin, Morris Paul Baran, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., John Isom, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Nix, J., joined. Manderino, J., filed a dissenting opinion.
Appellant was convicted by a jury in October 1973 of murder in the first degree and attempted aggravated robbery.*fn1 His post-trial motions were denied and he was sentenced to life imprisonment on the murder conviction and a concurrent term of ten to twenty years on the robbery conviction. He has now filed this appeal.*fn2
The defendant has alleged four grounds which he contends require the reversal of the judgments of sentence. For the reasons stated hereinafter, we will affirm.
The salient facts are as follows. On February 11, 1969, at approximately 5:00 A.M., one James Patrick Costello was stabbed in the neck while sitting in the men's room of the Family Theatre in Philadelphia. The wound proved fatal. Allen Tucker and one Cornell Berry, appellant's co-defendant, were observed shortly after the incident running up the stairs from the men's room and fleeing the theatre. Later the same day both Tucker and Berry were arrested and charged with the crime. Tucker subsequently gave the police a statement in which he admitted stabbing Costello when Costello resisted an attempt to rob him.
Two of appellant's alleged errors concern the admission of his confession into evidence. He contends, first, that the confession was involuntary, and second, that it was the product of an "unnecessary delay" between the time of his arrest and the time that he was preliminarily arraigned.
In passing on a claim that a confession was involuntarily obtained we review the totality of circumstances surrounding the giving of the statement being challenged. Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423, 426 (1967); Culombe v. Connecticut, 367 U.S. 568, 601, 81 S.Ct. 1860, 6 L.Ed.2d 1037, 1057 (1961); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 149, 239 A.2d 426 (1968). Where, as here, the lower court has determined that the confession was voluntary, we are 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, supra, 367 U.S. at 604, 81 S.Ct. at 1880. See also, Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973); Commonwealth ex rel. Butler v. Rundle, supra, 429 Pa. at 149-50, 239 A.2d 426. Applying these rules to the facts of the instant case, we have concluded that the appellant was fully capable of waiving his ...