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.
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.
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, ...