decided: June 22, 1979.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT AT NO. 380,
AARON PINKNEY, APPELLANT AT NO. 448
Nos. 380 and 448 October Term, 1978, Appeal from Modified Judgment of Sentence of the Court of Common Pleas of Montgomery County at Nos. 396, 396.3, 396.4, 396.8, and 396.9 of 1976.
Ronald T. Williamson, Assistant District Attorney, Norristown, for appellant at 380 and appellee at 448.
George B. Ditter, Assistant Public Defender, Chief, Appeals Division, Norristown, for appellant at 448 and appellee at 380.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., concurs in the result. Spaeth, J., files a dissenting opinion. Jacobs, former President Judge and Hoffman, J., did not participate in the consideration or decision of this case.
Author: Van Der Voort
[ 267 Pa. Super. Page 290]
The Commonwealth's Appeal at No. 380 October Term, 1978.
Appeal is taken by the Commonwealth from the judgment of sentence, as modified. An understanding of relevant dates is important to our disposition. After trial non-jury and adjudication of guilty on charges of robbery, criminal
[ 267 Pa. Super. Page 291]
conspiracy, terroristic threats, and firearms violation, defendant was sentenced on August 5, 1977, to a total term of 7 1/2 to 22 years' imprisonment. On August 31, 1977, defendant filed a motion to vacate and reconsider the sentence, and the lower court set September 26, 1977, as the hearing date thereon.*fn1 The sentence was not vacated pending this hearing. On said date, a hearing was begun, with the court's commenting, after discussions with Pinkney, that his pro se motion for reconsideration more than adequately met the standards of good pleading. However, the court encouraged defendant to await his trial counsel's return from vacation, for the reason that the latter was more familiar with the case and counsel appointed interim had not reviewed the matter at length. Defendant was thus left the option of continuing the reconsideration hearing until return of his attorney, or proceeding without him. Pinkney chose to have the matter continued. The Commonwealth attorney did not object and "agree[d] we should wait." An order to this effect issued. After the passing of another date set for hearing (the reasons for it do not appear on the record) the matter came on for hearing on November 4, 1977. Following said hearing, the modified judgment of sentence, presently appealed, was rendered, whereby the total term of imprisonment was reduced to 1 1/2 to 7 years.
The Commonwealth now argues that the lower court was without authority to modify the sentence when it did. This argument is based upon the Act of 1959, June 1, P.L. 342, No. 70 (12 P.S. § 1032) and its mandate that a sentencing court may "alter, modify, suspend, reinstate, terminate, amend or rescind, any . . . sentence only during the term of court in which the . . . sentence, was entered of record" or "for a period of thirty days subsequent to the date of entering of record the . . . sentence, in any
[ 267 Pa. Super. Page 292]
instance where the term of court shall terminate prior to such thirty day period: Provided, that all parties in interest, including the district attorney in criminal cases, not notified in advance . . . ."*fn2 The Commonwealth alleges that the November 4, 1977, resentencing is both beyond the term of court in which the August 5, 1977, date sentencing falls and longer than 30 days after that sentencing. It further alleges that the lower court's sole reliance upon Pa.R.A.P. Rule 1701(b), which empowers the lower court to grant reconsideration when requested, even if the case has been moved to an appellate court, is misplaced.*fn3
Ordinarily, we would agree with the Commonwealth. It is obvious that the November 4, 1977, disposition of the reconsideration matter is out of time, being apparently past the term of the sentencing court and obviously more than 30 days following sentencing. The rule generally is that a court lacks power to act past the permitted time. See Commonwealth v. Bigley, 231 Pa. Super. 492, 331 A.2d 802 (1974) and Commonwealth v. Yoder, 249 Pa. Super. 389, 378 A.2d 350 (1977). Also, Pa.R.A.P. Rule 1701(b) authorizes reconsideration by the lower court when an appeal is pending, but does not in any way affect or enlarge upon the substantive law of the statute, 12 P.S. § 1032, mandating the time for action.*fn4
However, the Commonwealth did not object to defendant's decision to continue the reconsideration matter. The Commonwealth attorney stated: ". . . I haven't
[ 267 Pa. Super. Page 293]
heard anything today to lead me to argue for or against reconsideration so I agree we should wait." (Notes of testimony, September 26, 1977, hearing, p. 10). It is thus clear that as of September 26, 1977, when all parties were at the hearing which could have disposed of the reconsideration motion, the Commonwealth did not object to a continuance. The Commonwealth is estopped from now raising the argument. So the pivotal question becomes whether September 26, 1977, was in the same term of court as August 5, 1977. Regardless of the Commonwealth's failure to object, and its being estopped as of September 26, 1977, to raise the instant issue, if this crucial date was beyond and outside the term of court which contained August 5, 1977, the lower court had no jurisdiction or power to act.*fn5 The answer to this issue cannot be determined from the record. A remand is necessary for the sole purpose of convening an evidentiary hearing to determine if September 26, 1977, was within or without the term of the lower court which rendered the August 5, 1977, judgment of sentence. If September 26, 1977, and the date of original sentencing were both in the same term of court, then the judgment of sentence as modified is affirmed, on the reasoning that the Commonwealth as of September 26, 1977, was estopped to raise its instant challenge to resentencing, which eventually occurred on November 4, 1977. If it be found that September 26, 1977, was past the term of the sentencing court, then the modified judgment of sentence is vacated and the original (August 5, 1977) judgment of sentence is reinstated, on the reasoning that the lower court was without jurisdiction so to have modified the sentence.
Remanded with directions to hold said evidentiary hearing and to proceed in accordance with this Opinion.
[ 267 Pa. Super. Page 294]
"unnecessary", and that his confession would have been suppressed.*fn7
The relevant time period for determination as to its necessity, after arrest and before arraignment, is that between arrest and the making of the self-incriminating statement. Commonwealth v. Taylor, 472 Pa. 1, 370 A.2d 1197 (1977). Instantly we note that three men were arrested simultaneously for the same crime. The same officer conducted separate interrogations of each arrestee during the hours in question. Before midnight this officer was with one of the other suspects. Between midnight and 2:00 A.M. he was obtaining a statement from a second of the trio. Prior to each of these meetings, he had met with Pinkney, and following the other interrogations, he again met with defendant and subsequently obtained his statement. All the while, other necessary processing of the men transpired. Faced with three accused of this crime, all of whom had a slightly different story to tell, and the necessity to reach a clear understanding of the circumstances by interrogating each and comparing what was said, we will not hold that the 13 hours prior to Pinkney's giving a statement constituted "unnecessary delay". As a part of required administrative procedures, the investigating officer had to listen to the other men and compare and consider what they said in relation to Pinkney's story. See Commonwealth v. Smith, 472 Pa. 414, 372 A.2d 761 (1977). The delay here was not related to the making of a statement by Pinkney nor did it pressure him into doing it. Thus we do not find error below in refusing the motion to suppress and in allowing the admission of Pinkney's statement into evidence at trial.
[ 267 Pa. Super. Page 296]
At the appeal, No. 380 October Term, 1978, remanded with directions.
At the appeal, No. 448 October Term, 1978, affirmed.
SPAETH, Judge, dissenting:
The majority holds that the defendant's right under Pa.R.Crim.P. 130, 19 P.S. Appendix, to a prompt preliminary arraignment was not violated by the fifteen hour delay that followed his arrest. I cannot agree.
At the suppression hearing it was established that the defendant was arrested at 7:30 p. m. at the scene of the robbery -- a restaurant. Officer Lynch, the police interrogator who obtained the defendant's confession, then gave the following testimony. He was called to the police station at 7:45 p. m. on the night of the incident to interview the defendant, and spoke with the defendant for approximately one hour. N.T. at 45-46. During this interview the defendant gave the officer "one story, and we got a little loud in the conversation. N.T. at 63.*fn1 Although it appears that Officer Lynch did not strike the defendant, he admitted that he pushed the defendant back in his chair when he started to get up. Id. The interview terminated when the defendant informed the officer that he did not wish to speak about the incident. N.T. at 46. Officer Lynch then interviewed the other two suspects and succeeded in obtaining statements from them. At 2:00 a. m. Officer Lynch "went home and
[ 267 Pa. Super. Page 297]
went to bed and got back up and came back in for the 8:00 to 4:00 shift on Monday morning." N.T. at 48. To his knowledge, no one made any attempt to arraign the defendant during the night of the incident, even though at least one district justice was supposed to be on call twenty-four hours a day to handle preliminary arrangements. Id. On the morning following the incident, Officer Lynch approached the defendant a second time to speak with him. N.T. at 47. At 9:40 a. m. the defendant began his confession, which he completed at approximately 11:00 a. m. N.T. at 48-49. Sometime after 11:00 a. m. the defendant was arraigned. Officer Lynch was the only Commonwealth witness who testified as to the circumstances under which the defendant's confession was obtained.
The majority attempts to justify the delay of the defendant's preliminary arraignment on the following grounds:
Instantly we note that three men were arrested simultaneously for the same crime. The same officer conducted separate interrogations of each arrestee during the hours in question. Before midnight this officer was with one of the other suspects. Between midnight and 2:00 A.M. he was obtaining a statement from a second of the trio. Prior to each of these meetings, he had met with Pinkney, and following the other interrogations, he again met with defendant and subsequently obtained his statement. All the while, other necessary processing of the men transpired. Faced with three accused of this crime, all of whom had a slightly different story to tell, and the necessity to reach a clear understanding of the circumstances by interrogating each and comparing what was said, we will not hold that the 13 hours prior to Pinkney's giving a statement constituted "unnecessary delay." As a part of required administrative procedures, the investigating officer had to listen to the other men and compare and consider what they said in relation to Pinkney's story. at 1049.
[ 267 Pa. Super. Page 298]
As noted above, the Commonwealth did not introduce any evidence at the suppression hearing showing that the delay of the defendant's preliminary arraignment was related to the administrative processing of the defendant.*fn2 What evidence there was showed the contrary to be true. Officer Lynch was not listening to the other suspects and comparing and considering what they said in relation to the defendant's story when he was at home and asleep in bed. Furthermore, there was no evidence that another officer was interviewing the suspects in Officer Lynch's absence.
The majority cites Commonwealth v. Smith, 472 Pa. 414, 372 A.2d 761 (1977), in support of its holding that the delay here was necessary. Instead of supporting the majority's holding, Smith undercuts it. In Smith the defendant gave three statements to the police following his arrest but before his arraignment. The first was given one hour, the second eight and one-half hours, and the third twelve hours, after the defendant's arrest. The lower court suppressed only the third statement. On appeal the defendant argued that the second should have been suppressed as well. The Supreme Court rejected the Commonwealth's argument that the delay in the defendant's arraignment was necessary because other witnesses and suspects had to be questioned by an understaffed police force. Had the police been seeking a quick verification of an exculpatory statement by the defendant, the delay might have been necessary; but instead the police were conducting a general investigation involving the questioning of other suspects at the time the defendant gave his second statement. As a result, the defendant's right to a prompt preliminary arraignment following his arrest had been violated, the second statement was inadmissible, and a new trial was required.
Here, as in Smith, the delay was not caused because the police were seeking a quick verification of an exculpatory
[ 267 Pa. Super. Page 299]
statement by the defendant. The defendant had given a statement to Officer Lynch soon after his arrest, but evidently that statement was not the statement that Officer Lynch wanted to hear. Therefore, Officer Lynch interrogated the other suspects, and then went home to bed. When he returned the next morning, Officer Lynch resumed his interrogation of the defendant, and the defendant's preliminary arraignment was delayed until his confession was obtained.
Before evidence will be suppressed on the ground of pre-arraignment delay, three conditions must be met: (1) the delay must be unnecessary; (2) the evidence must be reasonably related to the delay; and (3) the evidence must be prejudicial to the defendant. Commonwealth v. Williams, 484 Pa. 590, 400 A.2d 1258 (1979); Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979). Here the delay of the arraignment was unnecessary, the confession was prejudicial, and because it was given more than twelve hours after the defendant gave his first, apparently exculpatory, statement, the required nexus between the delay and the confession existed. See Commonwealth v. Smith, supra; Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974).
A plurality of the Supreme Court has held that although admission of a coerced incriminating statement may never be deemed harmless error, the admission of a freely given statement that should have been suppressed because obtained in violation of Pa.R.Crim.P. 130 may sometimes be deemed harmless error. Commonwealth v. Townsell, 457 Pa. 249, 320 A.2d 111 (1974). Nevertheless, a court should have "great reluctance" in applying the harmless error rule in cases involving incriminating statements. Id.*fn3 I cannot say that here the error was harmless beyond a reasonable doubt. See generally Commonwealth v. Story, 476 Pa. 391, 383 A.2d
[ 267 Pa. Super. Page 300155]
(1978). No question existed at trial concerning the defendant's presence inside the restaurant at the time of the robbery. Officer Westerman testified that he arrested the defendant as he was leaving the restaurant with two other males. In addition, articles of the defendant's clothing were found in the restaurant. However, only one witness who was present in the restaurant at the time of the robbery identified the defendant as one of the robbers. Furthermore, much of her testimony was consistent with the defendant's assertion that he was only a customer who happened to be in the restaurant at the time. The defendant's most incriminating act to which the eyewitness testified was his going behind the luncheon counter and opening the kitchen door for the restaurant's employees and customers to exit through. Yet, this statement was impeached through the eyewitness's prior statements in which she failed to relate any fact showing unequivocally that the defendant assisted the other robbers in committing the crime. Other than the defendant's confession, which left no doubt about the defendant's participation in the planning and execution of the robbery, and the above testimony, the Commonwealth's most incriminating evidence was the discovery of money under the back seat of the police car that transported the defendant to the station house. However, this money was not discovered until two days after the defendant's presence in the car, and no one saw the defendant attempting to dispose of the proceeds from the robbery at any time.
The issue is not whether the evidence just related was sufficient to convict the defendant of robbery. It clearly was sufficient. The issue is whether the admission of the defendant's confession contributed to the verdict. Commonwealth v. Story, supra.
Since I believe the defendant is entitled to a new trial for the reasons above, I do not reach the question of whether the lower court's resentencing order was valid.