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decided: March 14, 1979.


No. 91 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at No. 1315 March Sessions, 1974


Paul Leo McSorley, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Eagen, C. J., and Nix, J., concur in the result. Roberts, J., files a dissenting opinion. Manderino, J., dissents.

Author: O'brien

[ 484 Pa. Page 402]


Appellant, Clarence Starks, was tried by a judge sitting with a jury in connection with the homicide of Jeremiah Middleton. The homicide occurred on January 25, 1974. The jury returned a verdict of murder of the first degree, criminal conspiracy, carrying a firearm on a public street or public property and unlawfully carrying a firearm without a license. Post-verdict motions were denied. The court below imposed the following judgments of sentence: life imprisonment on the murder conviction, five to ten years imprisonment on the conspiracy conviction and two separate two and one-half to five year prison sentences on the weapons violations. All of the sentences were to be concurrent. Appellant filed a direct appeal to this court from the judgment of

[ 484 Pa. Page 403]

    sentence imposed on his conviction for murder in the first degree.

Appellant first argues that the court below erred in failing to suppress two statements given to the Philadelphia police. The basis for the suppression is Pa.R.Crim.P. 130 and this court's decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). We do not agree.

Pa.R.Crim.P. 130 provides:

"Rule 130. Procedure in Court Cases Initiated By Arrest Without Warrant.

"When a defendant has been arrested without a warrant in a court case, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him and he shall be given an immediate preliminary arraignment. Rule 118 (in part) adopted January 31, 1970, effective May 1, 1970; renumbered as Rule 130 and amended September 18, 1973, effective January 1, 1974."

In Commonwealth v. Williams, 476 Pa. 344, 382 A.2d 1202 (1978) this court reiterated the three-prong test for admissibility:

"In Commonwealth v. Williams [455 Pa. 569, 319 A.2d 419 (1974)], we established a three-pronged test to determine if a statement obtained during a pre-arraignment delay must be suppressed: (1) the delay must be unnecessary; (2) the evidence must be prejudicial; and (3) the evidence must be reasonably related to the delay.*fn2

The standard of review for judging the correctness of a suppression court determination is:

". . . Our responsibility on review is 'to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.' Commonwealth v. Goodwin, supra, 460 Pa. at 521, 333 A.2d at 895; see

[ 484 Pa. Page 404]

    was placed in an interrogation room and was left alone until 12:30 p. m., when he was offered lunch, which he refused. However, he did avail himself of the bathroom facilities and had a drink of water. Appellant was then left alone again until 1:45 p. m., when Detective David Porter, the supervising police officer, warned appellant of his Miranda rights and advised him that he was under arrest for the shooting of Jeremiah Middleton. Appellant waived his rights and agreed to make a statement. This interrogation and statement lasted until 3:17 p. m. Appellant disavowed any knowledge of the Middleton homicide and stated that he was at his girlfriend's home, in bed. He also stated that Carol Chandler, his girlfriend, her mother, and a Mr. Gardner were also present in the house. He went on to discuss his unsuccessful attempt to secure a prescription for a cough syrup. He stated that he did not leave his girlfriend's house until 8:45 or 9:00 a. m., approximately forty-five minutes to one hour after the Middleton homicide. At the end of the interrogation, appellant consented to a polygraph test.

At 3:21 p. m., appellant was fed and left alone until 4:07 p. m., when the police escorted him to the polygraph testing room. Prior to the test, appellant denied any complicity. The test lasted until 5:30 p. m. At 5:30 p. m., appellant was informed by the interrogating officers that he had flunked the polygraph test. The police then conducted a second interrogation, which lasted until 7:20 p. m. Appellant's statement that was reduced to writing was in all important aspects completely consistent with his previous denials of complicity. Appellant unequivocally stated that he was not at the scene of the Middleton shooting, and that at the time of the shooting, he was at 1225 Bainbridge Street, his girlfriend's home, which he did not leave until 8:45 to 9:00 a. m. He did admit that he was a member of a gang known as "Black Brothers, Inc." (BBI), and that BBI was presently "warring" against the 19th Carpenter Street Gang. The purpose of the "war" was the secession of certain BBI members. Subsequent questioning occurred, but no statements were given to the police. Appellant was arraigned at

[ 484 Pa. Page 406]

    approximately 5:00 p. m., on January 26, 1974, thirty-two hours after his arrest.

At trial, both statements were introduced as part of the Commonwealth's case in chief, and as part of Detective Porter's testimony.

Initially, we note that in our inquiry into unnecessary delay in arraignment we will concern ourselves with the time between 9:25 a. m. and 7:20 p. m. of January 25, 1974. During the remaining time, no statements of any nature were obtained. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974).

Turning to the facts of the instant case, appellant was arrested on January 25, 1974, at 9:25 a. m., on an unrelated traffic violation. He was transported to two local police stations before arriving at the Police Administration Building Homicide Unit at 11:12 a. m. The transportation time is properly excluded from consideration for purposes of a Futch analysis. Commonwealth v. Coley, 466 Pa. 53, 351 A.2d 617 (1976).

From 11:12 a. m. until 12:30 p. m., appellant was alone and handcuffed in an interrogation room. At 12:30 p. m., police inquired of appellant whether he wanted food, water and use of the men's room. Appellant refused the food, but did avail himself of the other facilities. At 1:45 p. m., Detective Porter informed appellant of his Miranda rights and told him that he was being questioned in connection with the Middleton shooting. The 1:45 p. m. interrogation session lasted until 3:17 p. m., approximately one and one-half hours. The statement given was completely exculpatory, as detailed above.

As to this statement, we find that (1) it was given within four and one-half hours (11:12 a. m. to 3:17 p. m.) after his arrival at the police station; (2) that during the four and one-half hours appellant was only questioned for one and one-half hours, being either alone or using the facilities for the remaining ...

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