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COMMONWEALTH PENNSYLVANIA v. DAVID HITSON (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID HITSON, APPELLANT (TWO CASES)



No. 461 January Term, 1976 No. 482 January Term, 1977, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 354 and 355 September Term, 1975.

COUNSEL

Allen N. Abrams, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Nancy D. Wasser, Philadelphia, for appellee.

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

Author: Larsen

[ 482 Pa. Page 406]

OPINION

Appellant was convicted in a non-jury trial of voluntary manslaughter and possession of instruments of crime. Appellant appealed the judgment of sentence on the voluntary manslaughter conviction to this Court. The judgment of sentence on the possession of instruments of crime conviction was appealed to the Superior Court, which certified that appeal to this Court.

Appellant argues that the suppression court erred in not suppressing an inculpatory statement given by appellant to police. Appellant contends that the statement, given eight hours after he arrived at the police station, was the product of an unnecessary delay between arrest and arraignment and therefore, should be suppressed. Appellant claims that the admission of this statement into evidence violated Pennsylvania Rule of Criminal Procedure 130*fn1 and our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) wherein we held that evidence obtained during and reasonably related to an "unnecessary delay" between arrest and arraignment must be excluded.*fn2

Subsequent to our decision in Futch, we held that in determining whether a defendant's incriminating statement was the product of an "unnecessary delay", we must examine the time which elapsed between defendant's arrest and

[ 482 Pa. Page 407]

    his statement. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974).

In reviewing the suppression court's determination, we will consider only the evidence of the Commonwealth and the uncontradicted evidence of appellant. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). The record reveals that appellant was arrested at 5:30 a. m. on August 20, 1975. He arrived at the Police Administration Building at 5:55 a. m. and at 6:00 a. m., the police warned appellant of his constitutional rights and of the charges against him. The police questioned appellant between 6:00 a. m. and 9:10 a. m. and during this interrogation, appellant made statements indicating that he did not shoot Earl Blake. To verify this and with appellant's consent, a polygraph examination was conducted from 9:10 a. m. to 1:30 p. m. At 1:30 p. m., appellant was informed that he failed the polygraph examination. Appellant was rewarned of his constitutional rights and at 1:55 p. m., appellant admitted shooting Earl Blake. Between 2:10 p. m. and 2:40 p. m., appellant gave a written statement. He was subsequently arraigned.

The period of time which we are concerned with is the eight hour period between 5:55 a. m. (the time of appellant's arrival at the Police Administration Building) and 1:55 p. m. (the time that appellant incriminated himself). Commonwealth v. Coley, 466 Pa. 53, 351 A.2d 617 (1976). During the eight hour delay, there was a period of four hours and twenty minutes during which the polygraph examination was administered. Since the polygraph examination was administered to verify the statements that appellant made during the first interrogation session (which indicated that he did not shoot Earl Blake), this delay was a "necessary step in the police process" and hence does not constitute unnecessary delay. Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975). Excluding this four hour and twenty minute period, the length of the delay from the time that appellant arrived at the police station to the time that appellant gave his first incriminating statement was

[ 482 Pa. Page 408]

    three hours and forty minutes -- this is not an "unnecessary delay" under Futch.*fn3

Judgments of sentence affirmed.

ROBERTS, Justice, concurring.

The opinion of Mr. Justice Larsen rejects appellant's claim that his inculpatory statement to police was the product of unnecessary delay, but never considers whether appellant properly preserved the issue for appellate review. In Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), we cautioned persons moving for post-verdict relief that our Court would no longer excuse failure to comply with Pa.R.Crim.Proc. 1123(a) ("only those issues raised and the grounds relied upon in the motions may be argued"). I remain of the view expressed in Commonwealth v. Roach, 477 Pa. 379, 381, 383 A.2d 1257, 1258 (1978) (Roberts, J., concurring), that Blair must be given effect beginning March 1, 1975, the date of Blair's publication in the Atlantic Second advance sheets. "[I]t would be unfair to impose upon [a person seeking post-verdict relief] a decision of which he could not be aware." Id., 477 Pa. at 381, 383 A.2d at 1258. Appellant, however, filed boilerplate post-verdict motions ...


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