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decided: October 7, 1977.



John M. Grubor, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Charles W. Johns, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., joins in this opinion and filed a concurring opinion.

Author: Eagen

[ 474 Pa. Page 220]


On January 27, 1973, appellant, Henry Gaston, was convicted by a jury of murder of the first degree. No post-verdict motions were filed and on February 8, 1973, a sentence of life imprisonment was imposed. No direct appeal was taken, but on June 17, 1974, Gaston filed a petition for relief under the Post-Conviction Hearing Act (PCHA), Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. After a post-conviction hearing, the PCHA court concluded that, despite Gaston's desire to have his conviction reviewed, trial counsel failed to initiate an appeal on his behalf. Accordingly, the court entered an order on December 17, 1975, granting Gaston leave to file post-verdict motions nunc pro tunc, but otherwise denying relief.*fn1 Post-verdict motions were filed nunc pro tunc, but these motions were denied April 1, 1976. Gaston filed an appeal in this Court from the PCHA court's order of December 17, 1975. He also filed a direct appeal following the April 1st denial of his post-verdict motions. These appeals were consolidated and are now before us for decision.

Gaston advances numerous assignments of error in support of reversal and the grant of a new trial. Primarily, he contends his trial counsel was ineffective for failing to file suppression motions with respect to several items of allegedly

[ 474 Pa. Page 221]

    inadmissible evidence. We agree trial counsel was ineffective for failing to file a motion to suppress an incriminating oral statement made by Gaston on the ground the statement was the product of an unnecessary delay between arrest and arraignment.*fn2 Pa.R.Crim.P. 122 (formerly 116); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Therefore we reverse and grant Gaston a new trial.*fn3

At trial the Commonwealth introduced evidence of an oral incriminating statement made by Gaston while in police custody. Detective Fred Cooper testified Gaston made this statement [hereinafter the Cooper statement] on March 30, 1972, shortly after 7:18 a. m. Gaston asserts the Cooper statement was inadmissible as the product of an unnecessary delay between arrest and arraignment. Pa.R.Crim.P. 122 (formerly 116); Commonwealth v. Futch, supra. He further argues trial counsel was ineffective for failing to file a motion to suppress on that ground.*fn4

[ 474 Pa. Page 222]

The standard for determining whether counsel was ineffective was articulated in Commonwealth ex rel. Washington Page 222} v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967):

"[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis." [Emphasis in original] [Footnote omitted.]

However, before inquiring into the basis for trial counsel's failure to file a suppression motion, we must determine whether the claim which counsel is charged with failing to pursue was a frivolous one. See Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

The relevant facts underlying Gaston's claim of inadmissibility with respect to the Cooper statement are as follows: On March 27, 1972, at approximately 10:30 p. m., Barbara Lippman, a waitress, was fatally shot during a robbery at the Eat 'N Park Restaurant, 8500 Frankstown Avenue, Pittsburgh. Gaston was arrested at approximately 3:30 a. m. on March 28, 1972; he was taken to the Public Safety Building, where he was placed in a lineup and later released. He was rearrested at approximately 1:30 p. m. the following day, March 29, 1972. The police informed Gaston he was being charged with murder and returned him to the Public Safety Building. At approximately 2:00 p. m. he was advised of his constitutional rights and executed a pre-interrogation warning form. At this time Gaston denied any involvement in the crime. At approximately 2:45 p. m. Gaston received a brief telephone call from Attorney David Lichtenstein, who instructed Gaston to remain silent until someone from Lichtenstein's office arrived. Subsequent to this telephone call, Gaston informed the police he wanted to remain silent until his attorney arrived. He was then taken

[ 474 Pa. Page 223]

    to a holding cell. At approximately 8:00 p. m. Gaston was placed in a lineup for identification. In preparation for this lineup, Gaston was again advised of his constitutional rights by Detective Warren Walton. Walton learned at that time Gaston was to be represented by Lichtenstein, but that Lichtenstein was unable to attend the lineup. Walton subsequently learned another attorney, one Carl Blanchfield, was in the building and, as a "precautionary measure", asked Blanchfield to represent Gaston at the lineup. Blanchfield assented and the lineup was conducted, after which Gaston was returned to detention.

On March 30, 1972 at approximately 7:18 a. m., Gaston was taken to an office in the Homicide Division by Detectives Cooper and Freeman. The detectives advised Gaston of his constitutional rights and asked him to tell them the truth about his part in the crime; furthermore, the detectives told Gaston the reason for questioning him was "that we had taken a taped statement from Darrell Gordon [Gaston's co-defendant]." Gaston then requested to hear the tape. The police played a portion of the Gordon tape, after which Gaston made the incriminating Cooper statement admitting he actively participated in the robbery. After this interrogation, Gaston was apparently returned to his cell. He was finally arraigned at 4:30 p. m.

The record thus establishes that a period of eighteen (18) hours elapsed from the time Gaston was arrested until he made the incriminating Cooper statement without having been arraigned. Gaston was initially unwilling to admit involvement in the crime, but during the eighteen-hour delay attendant to his detention he was twice interrogated and placed in an identification lineup as well. See Commonwealth v. Lasch, 464 Pa. 259, 346 A.2d 547 (1975); Commonwealth v. Cullison, 461 Pa. 301, 336 A.2d 296 (1975); Commonwealth v. Showalter, 458 Pa. 659, 328 A.2d 841 (1974); Commonwealth v. Parker, 458 Pa. 381, 327 A.2d 128 (1974); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974);

[ 474 Pa. Page 224]

    decide the issue, which has been thoroughly briefed and argued. It is clear the suppression motion would be successful. Therefore, in the interest of judicial economy, it is appropriate to proceed to the merits of appellant's claim. See Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970); Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (1969).

Because appellant's in-custody oral statement should have been suppressed as the product of an unnecessary delay between arrest and arraignment, see Pa.R.Crim.P. 122 (formerly 116); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), I agree that judgment of sentence should be reversed and a new trial granted.

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