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submitted: April 28, 1983.


No. 401 Philadelphia, 1982, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 491-494 November Term, 1973.


Donald S. Bronstein, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Rowley, Wieand and Popovich, JJ. Popovich, J., concurred in the result.

Author: Wieand

[ 320 Pa. Super. Page 362]

Wayne Pritchett was tried by jury and found guilty of first degree murder, conspiracy and weapons offenses in connection with the ambush shooting of a rival gang member in Philadelphia on September 19, 1973. A sentence of life imprisonment was affirmed by the Supreme Court on direct appeal. Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976).*fn1 On April 2, 1980, Pritchett filed a counseled P.C.H.A. petition which was denied after hearing. On appeal, Pritchett argues that trial counsel, who also represented him on direct appeal, was constitutionally ineffective (1) because he failed to object at trial to the introduction of inculpatory statements which allegedly were the product of unnecessary delay between arrest and arraignment; (2) because he failed to argue that Pritchett's inculpatory statements had been obtained by police in violation of the interested adult rule; and (3) because he failed to raise on direct appeal the trial court's refusal to instruct the jury on involuntary manslaughter. There is no merit in these contentions; and, therefore, we affirm the order dismissing Pritchett's P.C.H.A. petition.

Pritchett was arrested at or about 3:15 a.m. on October 23, 1973. Upon arrival at the Police Administration Building, he was left alone from 4:02 a.m. until 5:27 a.m. At that time a police detective entered the room and advised Pritchett of his Miranda rights. Pritchett waived those rights and gave an inculpatory statement in which he said that he had been a member of the gang which had killed the victim and that he had been present with the killer at the time of the shooting. He denied, however, that he had done the shooting. This interview continued until 7:15 a.m., when Pritchett's father was advised that his son had given a statement. At 8:00 a.m., Pritchett was taken to the rest room, given water and again left alone. At 9:25 a.m. he

[ 320 Pa. Super. Page 363]

    was told that a co-defendant had accused him of firing the shotgun which killed the victim. Pritchett was fed, met with his father and agreed to submit to a polygraph examination. This examination began at 12:15 p.m. After it had been completed, Pritchett was told that he had failed it. He thereupon confessed, at 2:30 p.m., to pulling the trigger of the fatal weapon. He was fed again and allowed to rest. He signed a formal, written statement in his father's presence at 5:20 p.m.

Trial counsel filed a pre-trial motion to suppress Pritchett's confession on grounds that the police had used coercion, including physical abuse, threats and vile language, to extract the confession and that Pritchett had been too frightened to comprehend what he was signing. The motion was denied, and the objection was not renewed at trial. On direct appeal, counsel attempted to argue that Pritchett's statements had been the result of unnecessary pre-arraignment delay and that their suppression was required by Pa.R.Crim.P. 118 (now Pa.R.Crim.P. 130) and the holding in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The Supreme Court held that the issue had not been preserved by prior objection and refused to consider it. Commonwealth v. Pritchett, supra. Pritchett contends that trial counsel was ineffective for failing to preserve the issue for appellate review.

We determine first whether there is arguable merit to the claim that appellant's confessions were the product of undue pre-arraignment delay. Only if we determine that there would have been arguable merit to such a contention must we inquire as to counsel's reasons for not preserving the claim. See: Commonwealth v. Tann, 500 Pa. 593, 599-600, 459 A.2d 322, 326 (1983); Commonwealth v. Linch, 318 Pa. Super. 590, 592, 465 A.2d 1010, 1011 (1983); Commonwealth v. Costanzo, 309 Pa. Super. 267, 271-72, 455 A.2d 153, 155 (1983); Commonwealth v. Tran, 307 Pa. Super. 489, 496, 453 A.2d 993, 996 (1982).

Pritchett's arrest was in 1973, well before the Supreme Court's decision in ...

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