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COMMONWEALTH PENNSYLVANIA v. NORMAN SWEENEY (10/30/75)

decided: October 30, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
NORMAN SWEENEY, APPELLANT (TWO CASES)



COUNSEL

David Zwanetz, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, 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. Jones, C. J., and Roberts and Pomeroy, JJ., concur in the result.

Author: Manderino

[ 464 Pa. Page 428]

OPINION OF THE COURT

Appellant was convicted by a jury of murder in the first degree, aggravated robbery, burglary, and conspiracy. Post-verdict motions were denied and concurrent sentences of life imprisonment for the murder conviction, ten to twenty years for robbery, and ten to twenty years for burglary were imposed. Sentence was suspended on the conspiracy conviction. This appeal followed.

Appellant first argues that a statement given to police following his arrest should have been suppressed because it was the product of an unnecessary delay between arrest and arraignment. See Pa.R.Crim.P. Rule 130. Appellant's suppression hearing was held several months before our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Appellant's trial, however, was not held until December of 1972, some eight and one-half months after Futch. Post-verdict motions

[ 464 Pa. Page 429]

    were filed by appellant on December 19, 1972. The issue was not raised at trial or in his post-verdict motions, and since it was not timely raised, it will not be considered on direct appeal. Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974).

Appellant also argues that his confession should have been suppressed because it was not voluntarily given. He contends that, although he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the confession was not the product of a rational intellect and a free will. This Court has held that any determination of whether a confession is the product of rational intellect and a free will necessitates consideration of the totality of the circumstances involved. Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973). Here appellant claims that he was suffering from symptoms of heroin withdrawal, that he was questioned continuously for several hours, and that he had only a tenth grade education. At his suppression hearing, however, the prosecution presented testimony that he had not taken any drugs during the twenty-four hours preceding the questioning, that he seemed alert and conscious of what was going on around him, and that he was given frequent periods in which to rest, eat, and attend to his personal needs. The suppression court elected to believe the prosecution's witnesses and determined that appellant's confession was voluntary. The court en banc reviewed the evidence, analyzed the facts, and concluded that the suppression court's determination was proper. We have reviewed the testimony presented at the suppression hearing and conclude that the prosecution has sustained its burden of proving that the confession was voluntarily and knowingly given. Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (1972).

Appellant next claims that his conviction should be reversed because at voir dire the trial court overruled

[ 464 Pa. Page 430]

    several of his challenges for cause. He claims that this necessitated the use of his peremptory challenges, and since he had no peremptory challenges left, ...


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