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COMMONWEALTH PENNSYLVANIA v. ZEBBIE CLIFTON (11/16/79)

filed: November 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ZEBBIE CLIFTON, APPELLANT



No. 283 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia at No. 659 November Sessions 1973

COUNSEL

Hugh C. Clark, Philadelphia, for appellant.

Robert J. Casey, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 272 Pa. Super. Page 97]

Zebbie Clifton, appellant, was tried and convicted by a jury in the Court of Common Pleas of Philadelphia of

[ 272 Pa. Super. Page 98]

    murder of the first degree, aggravated robbery, conspiracy and weapons offenses. Judgment of sentence of life imprisonment was imposed on the murder conviction,*fn1 and this appeal followed.

This was Clifton's second conviction of the same charges. The first convictions were voided and set aside because of ineffective trial counsel. Prior to the second trial, during which Clifton was represented by new counsel, he moved to have the charges dismissed on the ground of double jeopardy. The trial court denied the motion and this ruling is the first assignment of error. The motion to dismiss the charges was properly denied. Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352 (1972).

Next, Clifton argues the admission into evidence of statements given by him to police was error because the statements were obtained in violation of Pa.R.Crim.P. 130, see Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), and because they were involuntarily given.

With regard to the Futch claim, the facts are as follows: Clifton was arrested in New York City on a fugitive warrant. On October 2, 1973 at 10:20 a. m., he waived extradition and was taken into custody by Philadelphia police. He arrived at the Police Administration Building in Philadelphia at 12:15 p. m. on the same day. At 12:40 p. m., he was advised of his constitutional rights which he indicated he understood and waived. Clifton then gave a statement to police which an officer reduced to writing. The writing was completed at 2:15 p. m. and read and signed by Clifton. In this "informal statement," Clifton incriminated himself. Between 2:15 p. m. and 4:35 p. m., Clifton was taken to a men's room, given a meal and cigarettes, and left alone. At 4:35 p. m., Clifton gave a "formal statement" which was typewritten. He finished the statement, read it, and signed it at 7:00 p. m. He was arraigned at 10:00 p. m.

The relevant period in examining a Futch claim is between arrest and incrimination, Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Rowe,

[ 272 Pa. Super. Page 99459]

Pa. 163, 327 A.2d 358 (1974), and, where, as here, the second statement is essentially the same as the prior statement, the time the prior statement is given governs. Commonwealth v. Boone, supra; Commonwealth v. Rowe, supra. Accordingly, the period involved instantly is two hours and twenty minutes. Further, one hour and fifty-five minutes of that period was needed to transport Clifton to the Philadelphia Police Administration Building, and, accordingly, was not unnecessary delay. Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979). Hence, the ...


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