Robert B. Mozenter, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., agrees with the result reached because under all of the evidence the statement was not voluntary. Eagen, J., filed a dissenting opinion, in which Jones, C. J., and Pomeroy, J., joined. Pomeroy, J., filed a dissenting opinion in which Jones, C. J., and Eagen, J., joined.
Appellant, Pedro Doamaral, was convicted of voluntary manslaughter in a non-jury trial. Post-verdict motions
were denied by the court en banc. (Judge Reed dissenting.) Appellant received a sentence of two to twelve years imprisonment. This appeal followed.
On May 7, 1971, one Larry Chatman was fatally shot while standing on a street corner in Philadelphia. Two days later, May 9, 1971, at 12:45 p. m., appellant and his older brother were arrested at their home and taken to the police station. Appellant, who was 15 years old at the time, was placed alone in an interrogation room. During that day, he was interrogated on three different occasions by three different detectives. At all times he denied any involvement in the shooting. During the third interrogation session, which commenced at about 8:40 p. m., a detective told appellant that a witness had identified the appellant as the person who fired the fatal shot. Appellant then asked to speak to his brother, who was in a separate interrogation room. After talking to his brother, the appellant, in a fourth interrogation session, made an oral inculpatory statement at about 9:30 p. m. Almost 9 hours had elapsed since his arrest. The taking of a formal written statement commenced at 11:30 p. m., almost 11 hours after the arrest. The taking of this statement concluded at 12:57 a. m., when appellant signed it. Appellant was arraigned some time later. The precise time of his arraignment is not clear from the record. As a result of appellant's statement, the police located and recovered the barrel and trigger housing of a .22 caliber rifle.
Appellant's first inculpatory statement was not made until almost nine hours after his arrest. Under the circumstances of this case, the delay was an unnecessary delay, and the evidence obtained as a result of that delay is inadmissible. Rule 118 (now Rule 130) of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix; Commonwealth v. Green, 461 Pa. 388, 336 A.2d 594 (1975); Commonwealth v. Cullison, 461 Pa. 301, 336 A.2d 296 (1975); Commonwealth v. Barilak, 460 Pa. 449
A.2d 859 (1975); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); see Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973).
The prosecution does not contend that the delay between appellant's arrest and arraignment was not an "unnecessary delay"; initially it argues that appellant waived his right to raise the unnecessary delay question on this appeal because he ...