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COMMONWEALTH PENNSYLVANIA v. LEE C. MAY (03/17/76)

SUPREME COURT OF PENNSYLVANIA


decided: March 17, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
LEE C. MAY, APPELLANT (TWO CASES)

COUNSEL

Thomas B. Rutter, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Marianne Cox, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Per Curiam

[ 466 Pa. Page 526]

OPINION OF THE COURT

On March 29, 1974, following a non-jury trial, the appellant, Lee C. May, was convicted of voluntary manslaughter and the possession of an instrument of crime. After denial of post-trial motions, appellant was sentenced to a term of imprisonment of eighteen months to five years on the former conviction and sentence was suspended on the latter. This direct appeal followed.*fn1

Relying on Pennsylvania Rule of Criminal Procedure 130, 19 P.S. Appendix, and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny, appellant claims that an inculpatory statement obtained from him during police questioning should have been suppressed by the trial court as the product of an unnecessary delay between his arrest and preliminary arraignment. He has failed, however, to preserve this issue for appellate review. Appellant moved to suppress the statement, but solely on the basis that it was given involuntarily. The statement was again challenged at trial on the same single ground.*fn2 It was not until his posttrial motions that appellant first raised the separate and distinct claim of unnecessary delay.*fn3 This was too late, and

[ 466 Pa. Page 527]

    foreclosed its consideration either by the trial court or on appeal. In a case, like this one, where all proceedings, including the arrest and interrogation of the accused, post-dated the announcement of the decision of the Court in Futch, supra, the attempt to exclude a confession on Futch grounds comes too late when not made until after conviction. Commonwealth v. Culmer, 463 Pa. 189, 193-194, 344 A.2d 487, 489-490 (1975); Commonwealth v. Newsome, 462 Pa. 106, 108, 337 A.2d 904, 906 (1975); See also Commonwealth v. Spriggs, 463 Pa. 375, 381, 344 A.2d 880, 883 (1975); Commonwealth v. Segers, 460 Pa. 149, 158, n. 3, 331 A.2d 462, 467, n. 3 (1975); Commonwealth v. Johnson, 457 Pa. 554, 558, 327 A.2d 632, 634-635 (1974). Cf. Commonwealth v. Mitchell, 464 Pa. 117, 120-127, 346 A.2d 48, 50-53 (1975).

Judgments of sentence affirmed.


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