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COMMONWEALTH v. SIMMONS (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
SIMMONS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1974, Nos. 328 and 336, in case of Commonwealth of Pennsylvania v. Ezekiel Simmons.

COUNSEL

Joseph T. Kelley, Jr., and Ettinger, Poserina, Silverman, Dubin & Anapol, for appellant.

Francis C. Barbieri, Jr., 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 Price, J. Hoffman, J., concurs in the result.

Author: Price

[ 239 Pa. Super. Page 222]

Appellant, Ezekiel Simmons, was arrested on December 20, 1973 on charges of rape, felonious restraint, aggravated assault, robbery, criminal conspiracy and various firearms violations. These charges stemmed from an incident beginning on the evening of December 19, in which a group of armed men entered a home in West Philadelphia and beat, robbed, raped and held captive its occupants until the police arrived on the following morning.

On September 11 and 12, 1974, appellant's Pre-Trial Motions to Suppress Evidence were heard and denied. On September 23, 1974, appellant was tried before a judge without a jury and found guilty of rape, aggravated assault, and criminal conspiracy. On January 13, 1975, appellant's post-trial motions were heard. His motion in arrest of judgment as to the aggravated assault conviction was granted and all remaining motions were denied. Appellant was then sentenced to not less than two nor more than seven years imprisonment on the rape conviction and sentence was suspended on the conviction for criminal conspiracy. This appeal followed.

I

The first point of error advanced by the appellant is the lower court's refusal to suppress his statement to the police. This statement was allegedly obtained in violation of Pennsylvania Rule of Criminal Procedure 130*fn1

[ 239 Pa. Super. Page 223]

(formerly Rule 118). Appellant relies principally on Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) to support this contention. In Futch, the Pennsylvania Supreme Court determined the effect of excessive pre-arraignment delay upon statements made by an accused in the period between arrest and arraignment.

"[W]e think it appropriate to follow the federal approach and exclude all evidence obtained during 'unnecessary delay' except that which . . . has no reasonable relationship to the delay whatsoever." 447 Pa. at 394.

Our court examined the evolution of this doctrine in Commonwealth v. Griffin, 232 Pa. Superior Ct. 163, 170, 336 A.2d 419, 422 (1975). "Elaborating upon the Futch Rule in Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419, 420 (1974), the Court established a three part rule for determining whether evidence must be suppressed because of a violation of Rule 118. The Court therein explained that: (1) The delay must be unnecessary; ...


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