Appeal No. 80-3-738 by the Commonwealth, at No. 80-3-738, from the September 18, 1980 Order of the Court En Banc of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Granting Defendant's Motion for a New Trial at January Sessions, 1972, No. 889 (First Degree Murder).
Eric B. Henson, Deputy Dist. Atty., Gaele McLaughlin Barthold, Asst. Chief, Appeals Div., Philadelphia, for appellant.
Roger C. Peterman, Harrisburg, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, Hutchinson and Zappala, JJ. McDermott, J., did not participate in the consideration or decision of this case.
This is the Commonwealth's appeal from an en banc order of Philadelphia Court of Common Pleas. Common Pleas had granted appellee a new trial and ordered that a statement of his which began at 11:50 P.M. on November 12, 1971, and continued until 12:20 A.M. on November 13, 1971, should have been suppressed on Futch grounds. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Because the Commonwealth was never afforded a meaningful opportunity to litigate the Futch issue, the case is remanded to Common
Pleas with a direction to schedule a hearing at which the parties may present evidence and fully litigate the issue of whether this particular statement violated Futch.
The order of the Court of Common Pleas of Philadelphia County is vacated and the record remanded for proceedings consistent with this opinion.