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decided: December 1, 1975.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, Nos. 574 and 575, in case of Commonwealth of Pennsylvania v. Harry B. Edwards.


Ronald J. Brockington, for appellant.

James J. Wilson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Concurring Opinion by Price, J. Dissenting Opinion by Hoffman, J. Jacobs and Spaeth, JJ., join in this opinion. Dissenting Opinion by Spaeth, J.

Author: Van Der Voort

[ 237 Pa. Super. Page 487]

Appeal is taken to our Court from Judgment of Sentence rendered by Judge Merna Marshall following conviction on counts of burglary, larceny, receiving stolen goods, carrying a concealed deadly weapon, and carrying firearms without a license. Appellant challenges the lower court's denial of his application to suppress a confession given to the police. Post trial motions were made and denied.

On May 10, 1971, Paul Taylor, a policeman of the City of Philadelphia was shot by one Rufus Williams. Rufus Williams said that he had bought the gun which he used from the appellant Harry Edwards. Harry Edwards was arrested as a material witness and was taken to the Police Administration Building at 6:00 A.M. on May 11, 1971. He was given his Miranda warnings and was questioned by Detective Lamont Anderson from 9:10 to 9:30 A.M., during which time he said that he had sold the gun to Rufus Williams. Appellant submitted to a polygraph test from 9:30 A.M. to 12:30 P.M. Immediately after the polygraph test had been completed, the detectives learned that the gun used to slay Officer Taylor had been stolen in a burglary on March 25, 1971. The appellant was questioned from 12:26 P.M. to 12:50 P.M., as to his possible participation in the burglary of the gun. During this questioning, he stated he had no knowledge of the burglary. At 1:05 P.M., Detective Bocchinfuso of the Major Crimes Division, after giving Edwards Miranda warnings continued the interview until 1:30 P.M., at which time appellant was permitted to make a phone call and was given a meal which ended at 2:05 P.M. The interview continued until 2:55 P.M., when

[ 237 Pa. Super. Page 488]

    appellant agreed to another polygraph examination. It began at 3:30 P.M., and was concluded at 6:55 P.M., when appellant admitted he stole the gun in a burglary of a house. The appellant agreed to make a formal statement, he was given another meal from 7:30 to 8:45 P.M., the statement was completed, typed and signed at 11:25 P.M., thereafter he was processed and given a preliminary hearing.*fn1

From the chronology of the Detective Bureau it will be seen that appellant was not subjected to long interrogation. He was questioned in five separate intervals for a total of two hours and nine minutes about two entirely separate offenses. He was interrogated first concerning the unlawful selling of a gun; then second concerning the burglary. The Judge at the suppression hearing found that the confession was voluntary and there was sufficient evidence to support this finding.

Appellant claims that pursuant to Pa.R.Crim.P. 118 (now 130)*fn2 and under the authority of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973) and their progeny*fn3 that inasmuch as he was held in custody for 12 hours and 55 minutes before he confessed and a

[ 237 Pa. Super. Page 489]

    total of 18 hours and 30 minutes before preliminary arraignment his confession should have been suppressed.

This case presents squarely the issue between the right of the people to have serious crime discovered and the right of the defendant to be taken before a Magistrate without unnecessary delay after arrest.

The mere passage of time between arrest and preliminary arraignment does not of itself require the suppression of a confession secured in the interim. It is what occurs during the delay that is important. The totality of the circumstances is controlling.

Here appellant after his arrest was held for 7 hours during which period of time he was questioned for a total of 44 minutes concerning the gun he sold to Williams and was given a polygraph examination which consumed 3 hours. At the conclusion of the first polygraph the Detectives learned from sources other than appellant that the gun in question had been taken in a burglary. He was held for an additional 5 hours and 55 minutes during which period of time he was questioned for a total of 1 hour and 25 minutes in three different intervals and was given a polygraph which consumed 3 hours and 25 minutes. During these periods of time he was given opportunities to go to the lavatory, to make a telephone call and to have food when he was hungry.

In circumstances such as these where a suspect has indicated to the detectives after receiving Miranda warnings that he is willing to talk and then gives false answers to questions, he encourages delay and retards a prompt preliminary arraignment. We believe he thereby impliedly allows the officials, who have him in custody, a reasonable length of time to interrogate him. Most people who commit criminal offenses (except professional and organized criminals) want to confess if given a fair opportunity to do so. Without confession, attempts at rehabilitation are of doubtful value; with it rehabilitation can be of much value. In the instant case there would

[ 237 Pa. Super. Page 490]

    be no practical way of discovering this high crime of burglary except as was done here, that is to question the suspect who was willing to be questioned.*fn4

Does the law permit one arrested without a warrant to extend for a reasonable time his procedural right to a preliminary hearing by being willing to be questioned? We believe it does and that appellant did so extend this time requirement.

Judgment of sentence is affirmed.


Judgment of sentence affirmed.

Concurring Opinion by ...

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