No. 184 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia county, as of Nos. 826-829, September Sessions, 1975, and Nos. 1499-1500, December Sessions, 1975.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, Chief, Appeals Division, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Price, J., dissents. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 265 Pa. Super. Page 164]
A jury in Philadelphia County found appellant guilty of, inter alia, robbery,*fn1 aggravated assault,*fn2 and possession of a prohibited offensive weapon*fn3 concerning two incidents that occurred on the morning of August 8, 1975. Appellant's lengthy pretrial motions were denied. This appeal followed. We affirm in part and reverse in part.
At 12:30 A.M. on August 8, 1975, Robert Edwards was robbed and shot in the back. At approximately 1:20 A.M. that same morning, the body of Russell Leary was found with a fatal gunshot wound in the back and his empty wallet
[ 265 Pa. Super. Page 165]
lying beside him. At or about the time Leary died,*fn4 appellant met a Gary Crosby*fn5 and together they spent several hours drinking coffee at a restaurant. When Crosby indicated he wanted to leave, appellant accompanied him to his subway stop where appellant robbed and shot Crosby in the back of the neck at about 5:10 A.M. Crosby remained conscious and was able to give police an accurate description of appellant while they took him to the hospital. Appellant and another male were picked up shortly thereafter in the vicinity of the crime and transported to the hospital where Crosby was being treated. Crosby made a positive identification of appellant as being the person with whom he had drunk coffee the evening before, and who subsequently robbed and shot him.
Appellant was taken to the Central Detective Division at approximately 5:45 A.M. Upon arriving at the Division, appellant was read the Miranda warning and indicated he would remain silent. The police found a small handgun on appellant and no interrogation took place at that time. At approximately 8:25 A.M., appellant was transported to the Police Administration Building to await arraignment. It was about this time that the police began receiving reports of the Edwards and Leary incidents that were similar to the Crosby robbery and shooting. When the ballistics report was returned at approximately 11:45 A.M., it indicated the bullet found on Leary's body matched the pistol found on appellant at the time of his arrest. When confronted with this new evidence, appellant waived his Miranda rights and
[ 265 Pa. Super. Page 166]
confessed to the Edwards and Leary shootings. The administrative procedures, interrogations, and the taking and signing of appellant's statements took approximately six hours. Appellant was arraigned at 5:50 P.M.
At the pretrial suppression hearing, appellant's counsel moved for the suppression of all statements made by appellant, alleging an unnecessary delay in appellant's arraignment. All pretrial suppression motions were denied by Judge Shoyer. Appellant was subsequently convicted for the Leary murder in a non-jury trial. The Edwards and Crosby incidents were consolidated, and the trial on these charges took place resulting in appellant's conviction. It is from this latter trial appellant appeals.
Appellant raises nine issues in his voluminous brief which greatly exceeds the maximum number of pages permissible for briefs under our rules. Pa.R.A.P. 2135.*fn6 We will comment on each issue.
First appellant argues that the lower court erred in denying appellant's motion to suppress statements made during the delay between arrest and arraignment. If the delay was unnecessary pursuant to Pa.R.Cr.P. 130, all evidence obtained during the delay and reasonably related to it must be suppressed. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).*fn7 However, we agree with the findings
[ 265 Pa. Super. Page 167]
of fact and conclusions of law drawn by Judge Shoyer,*fn8 who presided at the suppression hearing, in concluding that the delay in this case was not an "unnecessary delay." There are necessary delays in every criminal case during which administrative details like booking, fingerprinting and some preliminary investigation concerning the nature of the crime and the arrested persons connection thereto must be explored. Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574, 579 (1968) (Concurring Opinion, Burger, J.). This is the type of necessary delay involved in the case before us. While appellant was going through the administrative procedures on the Crosby charges, the police began receiving new information and evidence on the similarities of the crime to that of the Leary and Edwards incidents. It was during this time that appellant was held.
Case law supports this finding. In Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975), the delay between the time of arrest and arraignment was deemed a necessary step by police while they checked the defendant's history. In Commonwealth v. Terry, 457 Pa. 185, 321 A.2d 654 (1974), the delay was also held necessary, while police compiled lists of names of accomplices along with other administrative details.
It is also important to note that our Supreme Court stated that "the relevant time period when analyzing a Futch claim is that between arrest and self-incrimination. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974)." Commonwealth v. Taylor, 472 Pa. 1, 15, 370 A.2d 1197, 1204 (1977). In the case before us, appellant confessed to the Leary and Edwards shootings as soon as the ballistics report was in. That was within six hours of his arrest and therefore well within the Futch standard that governs this case.
In this argument, appellant raises the further contention that the police violated his Miranda rights by interrogating him after he initially indicated he wished to remain silent. This was not the situation as is reflected in the
[ 265 Pa. Super. Page 168]
record. After appellant decided to remain silent, no interrogation took place. It was only after the police confronted appellant with the ballistics report and other facts they had gathered which connected him to the other two crimes, and after a second reading of the Miranda warnings, that appellant voluntarily relinquished his rights and made a statement concerning the crimes. The same sequence of events occurred in Commonwealth v. Grandison, 449 Pa. 231, 296 A.2d 730 (1972). There, defendant was arrested for traffic violations. Ten hours after his decision to remain silent, police learned of his true identity and additional charges filed against him. The court held that it was proper for the police to confront defendant with these matters. Subsequent to that confrontation, defendant voluntarily changed his mind about remaining silent and confessed. The confession was properly entered into evidence. See also Commonwealth v. Jefferson, 445 Pa. 1, 281 A.2d 852 (1971). Appellant attempts to distinguish these cases in that the methods employed by police show that the accuseds voluntarily changed their minds while appellant in this case was forced to confess due to the delay and being placed in isolation. The evidence that improper police tactics were used is not convincing. Cf. Commonwealth v. Milton, 461 Pa. 535, 337 A.2d 282 (1975). Informing appellant of additional developments in the case can go toward exculpating as well as inculpating appellant's involvement in the crime. As long as the Miranda warnings were properly readministered, which they were in this case, no error was committed in allowing into evidence the statements of appellant made after requestioning.
Next appellant contends that the identifications made by the two victims, Crosby and Edwards, were suggestive and should have been suppressed. The events surrounding the Crosby identification are as follows:
Crosby and appellant had socialized over a cup of coffee for several hours during the early morning of August 8,
[ 265 Pa. Super. Page 1691975]
, after which Crosby was robbed and shot. Crosby gave police an accurate description of appellant while being transported to the hospital. This description was radioed to the patrol cars on duty in the area, and appellant and another man, Mr. Campbell, were picked up and taken to Crosby's ...