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decided: April 28, 1978.


Appeal from No. 314 January Term 1976; the Order of the Superior Court at No. 1352 October Term 1974, affirming the Order of the Court of Common Pleas, Philadelphia, Criminal Section, Trial Division, at Nos. 574 and 575 June Term 1971; Merna B. Marshall, Judge.


Ronald J. Brockington, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.

Author: Per Curiam

[ 478 Pa. Page 3]


Order affirmed.

ROBERTS, Justice, dissenting.

I dissent. The Commonwealth's evidence consisted almost entirely of an incriminating statement appellant made during more than 17 hours of police detention in violation of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Pa.R.Crim.Pro. 118 (now Pa.R.Crim.Pro. 130).

At approximately 6:00 a. m., May 11, 1971, the police brought appellant to the stationhouse for questioning concerning a homicide. About 12:30 p. m., after more than six hours of intermittent interrogation, the police began to question appellant concerning a burglary committed two months earlier. Appellant denied involvement in the burglary. During the next 11 hours, appellant was repeatedly questioned about the burglary and underwent several polygraph examinations. Appellant continued to deny involvement in the burglary. About 7:00 p. m., after the police told appellant that he had failed a lie-detector test, he admitted participation in the burglary and agreed to make a written statement. The police began to take the formal statement at 8:45 p. m., and completed taking the statement around 11:30 p. m. The record does not show when appellant eventually was arraigned.

[ 478 Pa. Page 4]

This Court held in Commonwealth v. Futch, supra, that incriminating statements obtained during periods of unnecessary delay between arrest and arraignment are inadmissible if reasonable related to the delay. Appellant's statement was inadmissible under Futch. The police held him without arraignment for more than 17 hours. He agreed to give the incriminating statement nearly 13 hours after the police took him into custody, during which he was questioned and subjected to polygraph examinations for more than eight hours, and more than six hours after the police began interrogating him about the burglary for which he was convicted. This delay, apparently for the sole purpose of inducing appellant to provide incriminating information, was unnecessary and reasonably related to the statement. See Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975) (five and a quarter hours delay); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974) (plurality opinion) (four hours unnecessary delay where defendant initially denied involvement in crime charged).

In Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), this Court, pursuant to its supervisory powers, established the rule that "[i]f the accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment shall not be admissible at trial." (footnote omitted). Although we announced in Davenport that the six-hour rule would be applied prospectively, the same reasons that persuaded us to adopt the rule of Davenport apply to this case. As we stated in Davenport, "In no case have we held that a delay of six hours or more was not an 'unnecessary delay.'" Id. 471 Pa. at 286, n.7, 370 A.2d at 306 n.7 (citing cases). Accordingly, the statement taken from appellant should have been suppressed, and appellant is entitled to a new trial.

MANDERINO, Justice, dissenting.

I dissent. The record establishes that appellant was in custody for at least seventeen and one-half hours before

[ 478 Pa. Page 5]

    arraignment, and that his incriminating statement was made almost thirteen hours after he had first been taken into custody. Prior to his admission he had been interrogated for more than eight hours, and had been confronted with results of a polygraph examination which allegedly indicated that he had lied in denying involvement in the crime.

Appellant's statement must be deemed the product of an unnecessary delay in arraignment and should have been suppressed.

Even if a portion of the time appellant was in custody is attributable to the investigation of a different crime, and even assuming arguendo that such period covered be excluded from the period relevant to Futch purposes, appellant's statement must be deemed the product of an unnecessary delay in arraignment. Appellant's incriminating statement was given six and one-half hours after questioning about the instant crime had been initiated, and was given only after several periods of interrogation and the confrontation with the polygraph results. His statement should have been suppressed in accordance with Pa.R.Crim.P. 118 and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

I would reverse the conviction and order a new trial.


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