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COMMONWEALTH PENNSYLVANIA v. GREGORY W. HENSON (09/07/79)

filed: September 7, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY W. HENSON, APPELLANT



NOS. 228 and 349 Special Transfer Docket, Appeal from the Judgments of Sentence of Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, No. 77-04-162.

COUNSEL

A. Benjamin Johnson, Jr., Philadelphia, for appellant.

Andrew B. Cohn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: Honeyman

[ 269 Pa. Super. Page 315]

Gregory W. Henson appealed from the judgments of sentence imposed following his conviction of murder in the first degree and robbery, for which he received a life sentence on the murder conviction and a concurrent 10 year to 20 year sentence on the robbery conviction. He complains about six matters, two of which are utterly devoid of merit. We will address ourselves to the remaining four.

The victim was an 82 year old woman who owned and operated a boarding house in Philadelphia, wherein she resided in the first floor apartment with her son. At 6:00 p. m. March 14, 1977, the son returned home to find his

[ 269 Pa. Super. Page 316]

    mother's bedroom ransacked. He then observed his mother lying face down on the living room floor. It was established that she had been killed by strangulation. She customarily kept her money purse containing a few hundred dollars pinned to her apron. When she was found her apron was ripped and a safety pin was found near her body. The purse was missing. There was no evidence of forced entry. The appellant rented quarters from her on the third floor of the building.

Later that same evening, while interviewing neighbors in front of the boarding house, a detective was approached by appellant, following which they went to his third floor room for an interview. Appellant told the police that he had been at a relative's home at all times relevant to the commission of the crimes. However, the police learned that appellant had been seen exiting the boarding house carrying a large paper bag shortly before the victim's son returned. Since this conflicted with the statement of appellant, the police returned to further interview him at 4:00 a. m. the next day. Appellant stated a preference to pursue the matter later on in the day and the police acquiesced therein. At 11:00 a. m. the police transported appellant to the Police Administration Building. He waived his Miranda rights and gave an exculpatory statement, following which he assented to take a polygraph test, which was concluded at 3:19 p. m. The polygrapher concluded that he had been deceptive and untruthful, whereupon he was again warned of his Miranda rights and he again waived them. Commencing at 3:50 p. m. he gave an inculpatory written statement which was completed at 5:10 p. m. His arraignment occurred at 8:45 a. m. March 16, 1977. At the conclusion of a suppression hearing with respect to the statement, suppression thereof was denied.

Appellant complains that the suppression hearing judge was in error. It should be noted that the "six hour rule" enunciated in Com. v. Davenport, 471 Pa. 278, 370 A.2d 301 (1978) does not pertain to this case. Therefore, it is governed by the principles enunciated in Com. v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Com. v. Williams, 455 Pa. 569,

[ 269 Pa. Super. Page 317319]

A.2d 419 (1974). Although there appears to have been no necessity for the delay in his arraignment, we find no nexus between such unnecessary delay and the statement. The suppression judge found as a fact that the arrest did not occur until he made his first inculpatory utterances. The appellant contends that he was under arrest from the time he was taken from his dwelling by the police and says that that occurred at 7:00 a. m. and that he was handcuffed, abused, and that his request for counsel was denied. Opposed to that, the police testified that they picked him up at 11:00 a. m. and they denied appellant's other allegations. This factual conflict was resolved by the suppression judge in favor of the Commonwealth and we see no reason to disturb his findings. Even if there was sufficient restraint upon his liberty at 7:00 a. m. to constitute an arrest, the time lapse between then and the commencement of the inculpatory statement was 4 hours and 50 minutes. The suppression judge further found ...


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