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.
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
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
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 ...