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decided: October 8, 1976.



Michael J. Stack, Jr., Philadelphia, for appellant.

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

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

Author: Eagen

[ 468 Pa. Page 518]


Appellant, Arthur Perry, was convicted by a jury in Philadelphia of murder of the first degree, conspiracy, aggravated robbery and burglary. Post verdict motions were filed and denied. Perry was sentenced to life imprisonment on the murder conviction, was given a suspended sentence on the conspiracy conviction, ten to twenty years imprisonment on the aggravated robbery conviction and ten to twenty years imprisonment on the burglary conviction. The sentences on the burglary and robbery convictions were to run concurrently with one another but both were to run consecutively to the sentence on the murder conviction. These appeals followed.*fn1

The record establishes these facts. On February 9, 1972, two men entered the Choo-Choo Bar in Philadelphia. The first, later identified as the appellant Perry, ordered a beer and then left. Shortly thereafter, he returned and sat down toward the front of the bar. The second man, identified by the barmaid as Joseph Watson with whom the barmaid attended school, entered through the side door armed with a shotgun. Watson announced that there was to be a robbery and the two men ordered all the patrons into the restrooms at the rear of the bar. One patron, Douglas Alexander, an off-duty police officer, waited for the other patrons to get to the rear of the bar, then drew his service revolver and shot Watson in the left thigh. Watson fired his weapon at Alexander and fatally wounded him. Perry helped Watson to leave the bar and the two then fled in a stolen automobile.

Perry took Watson to his girl friend's apartment where Perry attempted to care for Watson while the two

[ 468 Pa. Page 519]

    hid from the authorities. Perry's girl friend helped him to secure bandages for Watson but told Perry that she wanted Watson and the gun out of her house when possible. On February 10th, Perry helped Watson out of the apartment and led him to a porch across the street where he would be found and given medical attention. Perry was confident that Watson would not implicate him. However, when the police, who were looking for Watson from the personal identification given by the barmaid, questioned Watson in the hospital, he gave a statement which not only incriminated himself but implicated Perry and gave the police an address where he might be found. Patrolmen were radioed, told of the information received from Watson and directed to apprehend Perry. The officers entered the apartment where Perry was located and arrested him without a warrant.

First, Perry contends that the lower court erred in permitting evidentiary use of an incriminating statement he made while in police custody, claiming it was the product of an unnecessary delay under Pa.R.Crim.P. 118 [now Rule 130] and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny. The chronology of the arrest and statement is as follows. Perry was arrested at approximately 11:35 a. m. on February 10, 1972. He was taken to the Police Administration Building, arriving at twelve noon. He was given the Miranda warnings and questioned concerning his involvement in the robbery and shooting. Almost immediately, without ever denying complicity, Perry began a narrative of the events leading up to the robbery beginning with the day before when he and Watson robbed another bar. His statement continued into the events leading up to his arrest the day following the shooting of Alexander. The statement was recorded in the interviewing officer's handwriting and was read and signed by Perry sometime between three and four p. m. on February 10th. Perry was further questioned until approximately 10:00 p. m.

[ 468 Pa. Page 520]

    and he was arraigned shortly after 11:00 p. m. on February 10th.

This Court, on several occasions, has said that the relevant time period to be considered in determining whether an unnecessary delay has occurred is the time between arrest and the making of the initial incriminating statements. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974). Here, there was no such unnecessary delay. Perry incriminated himself immediately upon being questioned and the recorded statement which he signed between three and four hours after arriving at the Police Administration Building merely repeated what he said earlier.

Second, Perry alleges that his statement should be suppressed since the arresting officers were not acting on probable cause when he was arrested without a warrant. Probable cause exists if "the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime." Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487, 490 (1975). Here, since the arresting officer was directed to apprehend Perry, although he was fully informed of Watson's statement, the operative question is whether the officer who directed that the arrest be made had information sufficient to support a finding of probable cause. Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972). Since the officer who directed the arrest had received information directly from Perry's co-felon implicating himself and Perry, that officer indeed had probable cause. Commonwealth v. Kenney, supra. Accordingly, this assignment is without merit.

Third, Perry contends that the trial judge committed reversible error by expressing an opinion on the

[ 468 Pa. Page 521]

    degree of guilt in this case. In his charge to the jury on the question of voluntary manslaughter, the trial judge made this statement:

"That is not, in my opinion, and I give it to you as my opinion, that is not a proper verdict under the facts of this case. It seems to me that either you should find the defendant guilty or not guilty of murder of the first or second degree." [Emphasis supplied.]

Whatever merit this argument may have, it is not now before this Court. Perry made no objection either during the charge or at its completion.*fn2 The error, if this is error, has been, therefore, waived. Pa.R.Crim.P. 1119(b); Commonwealth v. Raison, 458 Pa. 378, 326 A.2d 284 (1974); Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974).

Fourth, Perry contends that his right to a speedy trial was denied by a twenty-six month delay between arrest and trial. He bases his contention substantially on Pa.R.Crim.P. 1100. Although Perry was arrested on February 10, 1972 and was not tried until April 22, 1974, it is the date of a written complaint which controls the applicability of Rule 1100. Here, a written complaint was filed on February 12, 1972, well before the effective date of Rule 1100. Therefore, since Rule 1100 operates prospectively only, see Commonwealth v. Roundtree, 458 Pa. 351, 355, n. 6, 326 A.2d 285, 287, n. 6 (1974), Perry cannot claim its protection.

The facts of this case must then be examined in light of the standards in effect prior to the effective date of Rule 1100. These standards may be found in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101

[ 468 Pa. Page 522]

(1972); Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973), and Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972) and are, namely: the length of the delay; the reason for the delay; the defendant's assertion of his rights; and the prejudice to the defendant. Accordingly, an evaluation of each criterion is necessary.

A. Length of the delay

Perry was arrested on February 10, 1972 and tried on April 22, 1974, a delay of over twenty-six months. Such a delay is, at the least, enough to trigger an inquiry into the other factors.

B. Reason for the delay

The record reveals that defendant, or his counsel, filed several motions during the period between arrest and trial. First, a motion to suppress was filed on May 31, 1973. A hearing thereon was held on June 27-28, 1973. At the hearing, defense counsel requested leave to submit briefs. The suppression court granted the motion and took the motion to suppress under advisement, "briefs to be submitted." The motion to suppress was denied on October 9, 1973. On September 11, 1973, the defense filed two additional motions. One motion was for a change of venue and the second to suppress identification evidence. On November 16, 1973, one of the defendant's co-counsel moved to withdraw.

On January 14, 1974, Perry pro se, filed a motion for a pre-trial order enjoining the Commonwealth from cross-examining him or otherwise mentioning his prior criminal record.*fn3 ...

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