Joshua M. Briskin, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., files a dissenting opinion in which Jones, C. J., joins. O'Brien, J., concurs in the result. Pomeroy, J., files a dissenting opinion in which Jones, C. J., joins.
Appellant, Abu Ibn Hanifah Bey, also known as Nathaniel Miller, was convicted before a judge and jury of murder in the second degree, burglary, and aggravated robbery stemming from a robbery and shooting incident at a bar in Philadelphia. Following the denial of post-trial motions, appellant was sentenced to a term of imprisonment of 7 1/2 to 15 years on the murder bill, and to a consecutive 4 to 8 year term on the robbery bill. Sentence was suspended on the burglary bill. This direct appeal followed.*fn1
The two grounds which appellant raises in support of his request for a new trial relate to the admission into evidence of his confession. First he contends that his confession should have been suppressed because it was the product of an illegal arrest. Second he claims that the confession should have been suppressed as the product of an unnecessary delay between arrest and arraignment in violation of Rule 118 (now Rule 130) of the Pennsylvania Rules of Criminal Procedure. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Because
we agree with this latter contention, we need not discuss the legality of the arrest.
On May 5, 1972, appellant, in the company of four brothers named Shaw, was arrested at the Shaw home and taken to the Police Administration Building in connection with a robbery and shooting at a bar not far from their residence. At 5:10 P.M. appellant was placed alone in an interrogation room. Twenty minutes later a detective entered and, after warning appellant of his Miranda rights, proceeded to question him. Appellant was questioned at various intervals thereafter by this detective and, although appellant did not refuse to speak with the police, he steadfastly denied any knowledge of, or involvement in, the incident. At 10:12 P.M. appellant was confronted with a statement by one of the Shaw brothers implicating appellant. Thereupon appellant admitted participating in the robbery. Appellant was permitted to rest and during this period attempted to telephone relatives. He was also questioned concerning the identity of a third participant. At 4:30 A.M. the following morning, appellant made a formal statement which was signed at 6:27 A.M. Appellant was slated at 10:46 A.M. The record is unclear as to the time of arraignment, but it was sometime after 10:46 A.M.
In a number of opinions since Commonwealth v. Futch, supra, this Court has set forth the rule that where evidence prejudicial to the accused is obtained during an unnecessary delay between arrest and preliminary arraignment and that evidence is reasonably related to that delay, then the evidence is to be suppressed. See Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419 (1974) and cases cited therein.
The Commonwealth, while not contesting that the evidence obtained was prejudicial, argues that the delay was not "unnecessary" because only five hours elapsed between the ...