Irving L. Madnick, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Mark Sendrow, Asst. Dist. Attys., Asst. Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, B. H. Levintow, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., filed an opinion in support of affirmance in which O'Brien, J., joins. Pomeroy, J., filed an opinion in support of affirmance. Roberts, Nix and Manderino, JJ., dissent but deem it unnecessary to discuss the issues treated by the opinions supporting affirmance because those opinions do not represent the views of the Court. Jones, C. J., did not participate in the consideration or decision of this case.
The Court being equally divided the judgments of sentence are affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
On March 27, 1972, the appellant, George Lee Hamilton, was convicted by a jury of burglary, robbery and two counts of murder in the first degree. After the denial
of post trial motions, sentences of life imprisonment, to run concurrently, were imposed on the murder convictions. Additional prison sentences were imposed on the burglary and robbery convictions, and it was directed that these particular sentences be served concurrently with the life imprisonment sentences. This one appeal from the judgments of sentence followed.*fn1
The sufficiency of the evidence to warrant the jury's verdict is not in issue, nevertheless we have examined the record and determined the trial evidence was ample to warrant the jury in finding that Hamilton and one Allen Davis, acting in concert, robbed a five and ten cent store at 1816 West Susquehannah Avenue in Philadelphia, on May 16, 1970, during the course of which the proprietors, David and May Bodenstein, were fatally shot by Davis.
Hamilton asserts three assignments of error in this appeal.
The first assignment of error concerns the evidentiary use at trial of incriminating statements Hamilton made while in police custody. It is urged this evidence was the product of an unnecessary delay between arrest and arraignment in violation of Rule 118 (now 130) of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, and, hence, its use at trial was proscribed. See Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), and Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974).*fn2
The record discloses the following pertinent facts: Hamilton was arrested at 3:30 a. m., May 17, 1970. He
was transported to police headquarters arriving there at 4:00 a. m. The detective in charge of the investigation reached police headquarters at 4:30 a. m. Hamilton was advised of his constitutional rights, as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and affirmatively indicated he understood. He was then questioned briefly beginning at 5:10 a. m. Initially, he denied involvement in the Bodenstein robbery and killing. He was then asked if he were willing to take a polygraph examination. He agreed and was accompanied to a polygraph room at 5:55 a. m. The polygraph examination was completed at 7:30 a. m. Hamilton was then questioned for one-half hour. At 9:00 he was fed a sandwich and coffee. Immediately thereafter, at 9:25 a. m., Hamilton admitted his implication in the Bodenstein crimes. From 9:25 until 11:45 a. m., he related the details of his participation. Following a short luncheon break, a formal statement was recorded on a typewriter between 12:08 p. m. and 2:17 p. m. When finished the statement was read to Hamilton and he signed it at 2:50 p. m.
Hamilton then accompanied police and pointed out the house where the gun used in the killing could be found.*fn3 After his return to police headquarters, he was questioned by another detective. At 11:50 p. m., he gave an additional statement regarding a conversation between Davis, the co-felon, and one Denise ...