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filed: January 11, 1985.


No. 00191 PHL 83, Appeal from the Judgment of Sentence of January 3, 1983 in the Court of Common Pleas of Montgomery County, Criminal Division, No. 3412-81.


Michael P. Gottlieb, Assistant Public Defender, Norristown, for appellant.

Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Del Sole, Montemuro and Hoffman, JJ. Montemuro, J., files a concurring opinion. Del Sole, J., concurs in the result.

Author: Hoffman

[ 338 Pa. Super. Page 97]

Appellant contends that the trial court erred in denying her motion to suppress certain oral statements and physical evidence because they were obtained in violation of Pa.R.Crim.P. 130 and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Because we agree that the oral statements should have been suppressed, we reverse and remand for a new trial.

On October 28, 1981, at approximately 3:30 p.m., appellant was arrested while walking along York Road in Abington Township after police received information from security personnel at the Lord and Taylor's department store that two women had stolen a jacket from the store. Appellant, upon being advised of her Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), told the police that her name was Sylvia Gray and that she was seventeen years old. After an arrest report was completed, she was turned over to the Juvenile Division so that her parents could be contacted. The officers were unable to verify the name given, and at about 5:20 appellant told them her name was Charlene Devan but furnished no identification in support thereof. Following further unsuccessful attempts to verify her name, the officers, at approximately 8:00 p.m., reread appellant her Miranda rights and proceeded to question her. In the course of this conversation, appellant again stated that her name was Charlene Devan and that identification could be found in the glove compartment of an Oldsmobile automobile which the police

[ 338 Pa. Super. Page 98]

    had impounded.*fn1 The officers found the glove compartment locked, however, and, after speaking with appellant, they were given a key to the compartment and the trunk. In the glove compartment, the police found a checkbook and various identification, including a driver's license, in the name of Charlene Devan. They also found an assortment of new clothes from several stores in the trunk, and appellant then made several statements concerning who had purchased those items. At about this time the officers received information from Lord and Taylor's that appellant had attempted to purchase some merchandise with a check in the name of Charlene Gaither. When confronted with this new information, appellant told the police that this checkbook was hidden at the scene of her arrest. At approximately 9:00 that evening, the officers took appellant back to York Road where the checkbook in the name of Charlene Gaither and the check which they had received information about were found.

Immediately after returning to the police station with appellant, the officers prepared a new complaint which they completed around 11:00 p.m. Sometime between 11:00 and 11:30, the officers attempted to have appellant arraigned,

[b]ut Magistrate Plummer was not to be bothered at night, and Magistrate Peterson was unable to be contacted, so the complaints were left for the Justice of the Peace who came in in the morning, and they were sent down when the office opens at 9:00. He [Magistrate Plummer] called, he had the paperwork completed sometime after that for the arraignment.

(N.T., Suppression Hearing, April 20, 1982 at 30-31). Appellant was finally arraigned the next day, October 29, 1981, "[i]n the area of 12:00 or noon, sometime within, give or take an hour." (Id. at 30). She was charged with

[ 338 Pa. Super. Page 99]

    criminal conspiracy, criminal attempt to commit theft by deception, criminal attempt to commit the crime of bad checks, theft by deception, and theft by receiving stolen property.

Appellant's pre-trial motion to suppress was denied on April 20, 1982. Following trial on April 21-22, appellant was found guilty of the criminal attempt charges. Post-verdict motions were timely filed, argued, and denied. Appellant was then sentenced on January 3, 1983 to a term of imprisonment of one-to-two years for attempted theft*fn2 and ordered to pay the costs of prosecution on the attempted bad checks offense.*fn3 This appeal followed.

"[W]hen a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendant and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay." Pa.R.Crim.P. 130(a) (emphasis added). To enforce Rule 130 (then Pa.R.Crim.P. 118), our Supreme Court has held that evidence obtained during an unnecessary delay between arrest and preliminary arraignment is inadmissible at trial. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Following Futch, the Court adopted a rule pursuant to its supervisory power under which statements obtained after arrest and before arraignment are inadmissible at trial if the accused is not arraigned within six hours of arrest. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). A delay of two minutes beyond the six-hour period has been held to be a violation of the Davenport rule. Commonwealth v. Bennett, 287 Pa. Superior Ct. 485, 430 A.2d 994 (1981), aff'd per curiam, 498 Pa. 656, 450 A.2d 970 (1982); see also Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1981) (per curiam; ten minute delay required suppression); cf. Commonwealth v. Robertson, 317 Pa. Superior Ct. 158, 463 A.2d 1133 (1983).

Here, appellant contends that because arraignment did not take place until approximately twenty and one-half

[ 338 Pa. Super. Page 100]

    hours after her arrest, her oral statements and the physical evidence obtained as a result of such statements should be inadmissible at trial. The Commonwealth, in turn, argues that the delay was excusable because of exigent circumstances, the presence of which constitute an exception to the six-hour rule: "Six hours provides a workable rule which can readily be complied with in the absence of exigent circumstances." Commonwealth v. Davenport, supra 471 Pa. at 286 n. 7, 370 A.2d at 306 n. 7; see also Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983); Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982); Commonwealth v. Williams, 313 Pa. Superior Ct. 243, 459 A.2d 830 (1983); Commonwealth v. Ryles, 274 Pa. Superior Ct. 547, 418 A.2d 542 (1980). In the instant case, the lower court found two such circumstances: appellant's "obfuscatory tactics" and the unavailability of a magistrate on the night of October 28. (Lower Court Opinion at 2).

We agree with the lower court that part of the delay was due to appellant's own actions. Not until 5:20 p.m., almost two hours after her arrest at 3:30, did appellant give the police her correct name. While there are no Rule 130 cases holding that a defendant's conduct can constitute an exigent circumstance, we note that several Pa.R.Crim.P. 1100 "prompt trial" cases hold that a defendant cannot profit from delay which he or she has caused. See, e.g., Commonwealth v. Machi, 294 Pa. Superior Ct. 338, 439 A.2d 1230 (1982); Commonwealth v. Gallo, 276 Pa. Superior Ct. 562, 419 A.2d 601 (1980); cf. Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied sub nom., Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 ...

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