Richard A. McDaniel, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Barry H. Oxenburg, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion. Nix, J., filed a dissenting opinion in which Eagen, J., joined.
This appeal arises from the conviction of appellant, Robert Wesley Coach, for the robbery and murder of John Schmidt on September 12, 1972, in Philadelphia. Appellant was tried by a judge and jury, and on April 19, 1973, was found guilty of murder in the second degree and aggravated robbery. Post-verdict motions were denied, and on June 12, 1974, appellant was sentenced to not less than ten nor more than twenty years at a state correctional institution on the murder conviction and was given a five to ten year consecutive sentence for the aggravated robbery conviction. Appellant appealed the murder conviction to this court and the aggravated robbery conviction to the Superior Court, which certified the latter case to this court.
The facts surrounding this appeal are as follows. At approximately 4:50 p. m. on September 12, 1972, the decedent, John Schmidt, a mechanic for Breuninger's Dairy in Philadelphia, was shot while road testing one of the dairy's trucks. Two Philadelphia police officers on stakeout observed three males standing near Schmidt's truck. Three shots were fired, the decedent stumbled from the truck into the alley, and the three males fled from the scene. The police pursued the three individuals, who split into two groups. One of the officers pursued appellant and after several warnings to stop, shot the appellant in the leg.
The official police chronology reveals the following: Appellant was arrested and taken to Temple University Hospital, arriving at approximately 5:10 p. m. While at Temple, appellant gave two statements, the second of which was inculpatory. The inculpatory statement concluded at 8:35 p. m., at which time appellant was transferred to Philadelphia General Hospital. Appellant was
subsequently transferred to the Police Administration Building, arriving at approximately 1:40 a. m. He was warned and interviewed from 2:00 to 2:18 a. m. He was then fed and allowed to remain alone until 5:35 a. m., at which time appellant gave a formal typewritten statement, which statement concluded and was signed at 6:50 a. m. He was again allowed to remain alone until 10:00 a. m., at which time another "interview" was conducted until 10:15 a. m. A final "interview" was conducted at 10:30 a. m., until 10:40 a. m. At 12:10 p. m., appellant was arraigned. Thus, he was arraigned approximately nineteen hours after his arrest and sixteen hours after his initial inculpatory statement.
Appellant argues that the court below erred in refusing his requested point for charge that unnecessary delay between arrest and arraignment is a factor to be considered by the jury in determining the voluntariness of the confession. We agree.
In the instant case, appellant's counsel requested that the court charge the jury that unnecessary delay between arrest and preliminary arraignment is one of the factors to be considered in determining the voluntariness of the confession. The court below denied the requested charge stating that unnecessary delay is a question of law and out of the jury's province. We do not agree.
This court, in Com. ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426, 432 (1968), in discussing the necessity of prompt arraignment, stated:
"Finally, we attach some weight to the fact that Butler was not taken before a magistrate until a week after he was first taken into custody. Under the rule announced in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), a confession is automatically invalidated where a prisoner is not promptly taken before a committing magistrate. The delay of approximately twelve hours between the arrest and confession would of itself be violative of the dictates of
promptness. Although we do not attach the conclusiveness to the failure to take the prisoner before a magistrate that the federal courts do, it is a factor to be considered. It appears that the failure to take a defendant promptly before a magistrate is a violation of Pennsylvania law in any case. In Commonwealth v. O'Brien, 181 Pa. Super. 382, 392, 124 A.2d 666, 672 (1956), although the Court did not feel that a substantial right had been violated, it said: ' The right of an accused to a preliminary hearing, with certain exceptions, has become a part of the law of this Commonwealth * * *.'
"The Act of 1869 was interpreted by this court in Commonwealth v. Johnson, 365 Pa. 303, 74 A.2d 144 (1950), reversed on other grounds 340 U.S. 881, 71 S.Ct. 191, 95 S.Ct. 640 (1950), where we stated: '[T]he effect of the mere denial of a prompt preliminary examination is a matter of state, not of federal, law and to refuse it does not constitute a violation of the fourteenth amendment although it is one of the facts to be considered on an allegation that a confession used at the trial was coerced.'
(Emphasis added)" (Earlier emphasis added.)
In Commonwealth v. Koch, 446 Pa. 469, 474-75, 288 A.2d 791, 794 (1972), in reaffirming the relevancy of "unnecessary delay" as a factor to be considered in judging the voluntariness of the confession, this court stated:
". . . Rule 118 [now 130] of the Pennsylvania Rules of Criminal Procedure requires that a defendant 'shall be taken without unnecessary delay before the proper issuing authority' where 'the defendant shall be given an immediate preliminary arraignment.' The presence of 'unnecessary delay' in securing a preliminary arraignment is a factor to be considered in
assessing the voluntariness of a confession. Commonwealth v. Moore, 444 Pa. 24, 30, 279 A.2d 146, 149 (1971); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 153, 239 A.2d 426, 432-433 (1968); see Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 ...