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decided: October 3, 1975.



F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn Engel Temin, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellant.

Charlotte A. Nichols, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joins.

Author: Pomeroy

[ 463 Pa. Page 394]


This appeal by the Commonwealth raises the question whether the lower court erred in suppressing three incriminating statements made by Richard Smith following his arrest in May, 1973. The Commonwealth intended to use those statements in the prosecution of Smith for murder and several related offenses.*fn1 Prior to trial,

[ 463 Pa. Page 395]

Smith had moved to suppress his statements, on the ground that they were the product of an unnecessary delay between the time of his arrest and his arraignment and were therefore properly excludable under the rule announced by this Court in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).*fn2 The suppression court, relying upon the decisions of this Court in Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974) and Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974), which applied Futch, found the statements here involved to be prejudicial, to have been obtained during a period of unnecessary delay, and to have resulted from the delay; hence the court's order of suppression. We are of the opinion that on the facts of this case such reliance was misplaced. Accordingly, we must reverse the order of suppression.

In Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973), we emphasized that " Futch did not, and we do not here, establish a per se rule that all evidence obtained during an unnecessary delay be excluded. It is only upon the defendant's showing of prejudice from the

[ 463 Pa. Page 396]

    delay, i.e., a nexus between the delay and the challenged evidence that he is entitled to relief." Id. at 245, 301 A.2d at 703. It is this "nexus" which the defendant failed to demonstrate in this case. Commonwealth v. Wormsley, 461 Pa. 535, 541, 337 A.2d 282, 285 (1975).

At the suppression hearing, the following timetable of critical events was established for the period following arrest:

Time Event

9:40 P.M. -Defendant arrested.

(on May 30, 1973)

10:40 P.M. -Defendant arrives at Homicide


11:05 P.M. -Defendant warned of his constitutional


11:13 P.M. to -Defendant gives statement in

12:05 A.M. which he admits shooting of one

(on May 31, 1973) Dennis Dorsey.

2:25 A.M. to -Defendant interviewed concerning

2:40 A.M. alleged discrepancies

     between his story of the shooting

     and physical evidence at the

     scene of the crime.

2:50 A.M. to -Defendant gives a second statement

3:45 A.M. in which he clears up the


4:35 A.M. to -Defendant gives formal type-

6:10 A.M. written statement.

11:25 A.M. -Defendant taken to Central Cell

Room for administrative


Time unspecified Preliminary arraignment.

From this chronology it is apparent that the defendant first implicated himself in the shooting within approximately one and one-half hours after his arrest and during his first period of interrogation. These facts are

[ 463 Pa. Page 397]

    closely similar to those in a number of recent cases in which this Court has found that there had been no Futch violation. Thus, in Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974), the defendant gave an oral incriminating statement less than two hours after his arrival at police headquarters. In rejecting a claimed Futch violation, we held, "Nor can it be said that appellant's freely-given statement immediately after questioning began was the product of delay." Id. at 168, 327 A.2d at 361. Again, in Commonwealth v. Davis, 460 Pa. 644, 645, 334 A.2d 275, 276 (1975) we found "no unnecessary delay in appellant's arraignment which contributed to his confession," where the defendant orally confessed within one hour of his arrival at police headquarters and within thirty minutes after questioning began. In Commonwealth v. Young, 460 Pa. 598, 334 A.2d 252 (1975), similarly, the defendant did not initially confess until some five hours following his arrest. Because, however, he was questioned for only one hour and twenty-five minutes during that five hour period, we held that "there was no proof that the delay was a contributing factor in the confession." Id. at 599, 334 A.2d at 253. See also Commonwealth v. Rogers, 463 Pa. 399, 344 A.2d 892 (1975); Commonwealth v. Wormsley, supra; Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975).

The present case, like those above, involves a situation where the inculpatory statement is simply not "reasonably related" to any delay in arraignment. The mere fact that there was an elapsed time of not less than fourteen hours between arrest and arraignment is irrelevant to the issue before us since most of that time followed Smith's initial incriminating statement. Futch, supra, 447 Pa. at 393, 290 A.2d at 419; Rowe, supra, 459 Pa. at 168, 327 A.2d at 361. See also United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1940); Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974). That initial statement,

[ 463 Pa. Page 398]

    accordingly, should not have been suppressed on Futch grounds, and by the same token the two subsequent statements, which merely constituted additions to and reiterations of that first statement, likewise should not have been suppressed. Commonwealth v. Rowe, supra at 459 Pa. 169, 327 A.2d at 361-62. See also Commonwealth v. Davis, supra.

Order reversed.

ROBERTS, Justice (dissenting).

I dissent from the majority's holding that appellee's second and third statements were validly obtained under Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Pa.R.Crim.P. 130. Appellee was arrested at 9:40 p.m., May 30, 1973. He gave an inculpatory statement at 12:05 a.m., May 31, 1973. He should have been arraigned before a neutral magistrate and warned of his constitutional rights.

Rather than following the procedure mandated by this Court in both case law and rules of criminal procedure,*fn1 the officers continued to question appellee, in an attempt to convict him by his own words. Appellee was arraigned over 13 hours after his arrest.*fn2 This is precisely

[ 463 Pa. Page 399]

    the course of conduct proscribed in Futch. The effect of today's majority holding is to encourage some police officers to obtain inculpatory statements from suspects as soon as possible, so that they may then "clear up discrepancies" at their leisure, all before preliminary arraignment. Rather, they should be required to follow the rules of procedure mandated by this Court.

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