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filed: February 3, 1986.


Appeal from Judgment of Sentence March 11, 1983 in the Court of Common Pleas of Mercer County, Criminal No. 51 Criminal 1982.


Raymond H. Bogaty, Public Defender, Grove City, for appellant.

Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.

Spaeth, President Judge,*fn* and Brosky, Rowley, Wieand, McEwen, Cirillo, Olszewski, Montemuro and Tamilia, JJ. Spaeth, President Judge, files concurring opinion, in which Wieand and Tamilia, JJ., join. McEwen, J., files concurring and dissenting Statement.

Author: Olszewski

[ 350 Pa. Super. Page 597]

This matter comes before this court en banc on appeal from a judgment of sentence for retail theft.*fn1 The relevant events occurred on January 5, 1982, at 7:11 p.m., when appellant, James Dean Lewis, was seen leaving Stambaugh's Hardware Store in Hermitage, Pennsylvania, without paying for a chain saw he had in his possession. At approximately 8:00 p.m., appellant was arrested at the scene by officers of the Hermitage Police Department, but he was not apprised of the reasons for his arrest. Soon after his arrival at police headquarters, appellant blurted out the following statement: "I didn't take no chain saw from Stambaugh's." Although appellant was in the custody of police when the statement was made, he was not, however, subjected to police interrogation at the time. Appellant was arraigned before a District Justice at 9:45 a.m. the following day.

Prior to trial, appellant filed a motion in limine requesting that the Commonwealth not be allowed to introduce his prior burglary conviction as impeachment evidence. The motion, however, was denied and he was convicted of retail theft. Following the denial of appellant's post verdict motions, he was sentenced to six months' imprisonment. Appellant was paroled on April 13, 1983.

Appellant now raises three points of error. He contends that the trial court: (1) erred in permitting the Commonwealth to use appellant's prior burglary conviction for impeachment purposes; (2) erred in failing to suppress an inculpatory statement made by appellant prior to his arraignment in violation of the Davenport rule; and (3) erred in refusing to order a new trial based on after-discovered evidence. We will address these arguments seriatim.


Although it is generally well accepted as a fundamental tenet of American jurisprudence that an accused has a right

[ 350 Pa. Super. Page 598]

    to testify as a witness in his own behalf, it is also equally well established that the opposing party may impeach this witness by introducing before the trier of fact the individual's prior conviction(s). Commonwealth v. Roots, 482 Pa. 33, 35, 393 A.2d 364, 365 (1978) (Nix, J.). Whereas evidence of a prior conviction is offered so that the jurors may use it in evaluating a witness's credibility, this result does not always follow. Very often, jurors unfairly interpret this evidence as an indication of the accused's propensity to commit a crime. The likelihood of this event occurring, however, has not prevented the courts of this Commonwealth from permitting the use of such evidence, at least in a limited sense.*fn2

In the instant case, appellant argues that he was foreclosed from testifying at trial because of the lower court's decision to allow appellant's prior conviction into evidence for impeachment purposes. Appellant believed that if he had opted to testify, the jurors would have been prejudiced against him purely because of this evidence. We disagree with this position.

It has been decided by our Pennsylvania Supreme Court in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), that an accused was not denied a fair trial under the Due Process Clause of the Fourteenth Amendment merely because a prior conviction would have been used against him as rebuttal evidence if he had decided to take the stand during his trial and testify in his own defense. Notwithstanding this rule, the court, however, has been mindful of the inclinations of the average juror to associate prior convictions with an accused's propensity to commit criminal acts. As a result, the court limited the convictions to be used in rebuttal to those crimes involving dishonesty or

[ 350 Pa. Super. Page 599]

    false statement and directed the lower courts to consider the following factors in deciding whether to allow such evidence to be admitted at trial. They are as follows:

1) The degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendancy to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecutions's case and the prosecution's need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant's credibility.

Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978).

We are satisfied that the trial court considered these factors in denying appellant's motion, therefore, we affirm the lower court's decision.


Nor can we agree with appellant's second contention that the trial court failed to suppress a statement he made to police pursuant to the Davenport rule. Succinctly stated, Davenport provides that when an accused is not arraigned within six hours of arrest, any declaration obtained after arrest but before arraignment is not admissible. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Although this rule traditionally has been employed on a per se basis, our common sense and better judgment

[ 350 Pa. Super. Page 600]

    preclude us from applying it under the facts of the instant case.*fn3

Article I, Section 9 of the Pennsylvania Constitution, in pertinent part, guarantees that in all criminal prosecutions the accused has a right to be heard, a right to know the nature and cause of the accusations against him . . . and to be free from any unnecessary abridgement of his life, liberty or property. Thus, in order to insure these rights and to protect these liberties, the Pennsylvania Rules of Criminal Procedure require that an individual who has been arrested shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay. See Pa.R.Crim.P. 122, 130.*fn4 At the time of the preliminary arraignment, the accused shall be informed of the charges against him, his right to counsel, his right to bail and his right to a preliminary hearing. Pa.R.Crim.P. 140.*fn5 In an attempt to enforce the prompt arraignment requirement, the rule of Davenport was born.

It was thought by its authors and those who subsequently adopted it that the per se rule would assure a more certain and even-handed application of the prompt arraignment

[ 350 Pa. Super. Page 601]

    requirement, and would simplify the task of determining the admissibility of similar prearraignment statements under the guise of judicial economy. The rigid application of this rule in all situations, however, is not always a wise course of conduct to follow especially when justice is averted via a mere technicality.*fn6 Our courts have been mindful of the problems caused by the Davenport rule and have limited its application either by making exceptions to it or by recognizing an implicit "exigent circumstances qualification."*fn7 Under the facts of the present case, we are compelled

[ 350 Pa. Super. Page 602]

    to find that absent police coercion, any "blurt out" by an accused shall be admissible at trial despite a delay of more than six hours between the time of arrest and arraignment where the "blurt out" is unrelated to the illegal detention.

Without a doubt "supression is a drastic remedy designed to deter illegal conduct and protect an individual's rights." United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). In particular, suppression represents a judicial response to illegal activity by those not immediately subject to the supervisory authority of the courts, i.e., an indirect sanction on those the courts cannot directly sanction which renders fruitless the illegal activity and thereby deters that activity.

Commonwealth v. Ryles, 274 Pa. Super. 547, 552, 418 A.2d 542, 544 (1980).

In most instances, this analysis is correct, nevertheless it is incomplete when applied to the facts of the present case. Here, there is no relationship between the illegal activity sought to be deterred (the delay in excess of six hours between the time of arrest and arraignment) and the "blurt out." Along the same lines of the Davenport rule, the United States Supreme Court has fashioned the McNabb-Mallory rule*fn8 which precludes the use of any evidence obtained during an "unnecessary delay" between arrest and arraignment. This rule, however, is subject to the common sense caveat that the "unnecessary delay" must have contributed to the securing of the evidence. Commonwealth v. Futch, 447 Pa. 389, 393, 290 A.2d 417, 419 (1972).

The circumstances arising under United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944) (Frankfurter, J.) bear a striking resemblance to the instant case

[ 350 Pa. Super. Page 603]

    and are worth noting. Mitchell was taken into custody at his home at 7:00 p.m. for house breaking and larceny and was driven by two police officers to the precinct station. Within minutes of his arrival at police headquarters, Mitchell admitted guilt, made several other inculpatory remarks and consented to a search of his home. Mitchell was arraigned eight days later. Despite the unfairness of the detention for this lengthy period, the court nevertheless found the confession and resulting evidence admissible. The Court offered the following reasoning to support its position.

Illegality is illegality, and officers of the law should deem themselves special guardians of the law. But in any event, the illegality of Mitchell's detention does not retroactively change the circumstances under which he made the disclosures. These, we have seen, were not elicited through illegality. Their admission, therefore, would not be use by the Government of the fruits of wrongdoing by its officers. Being relevant, they could be excluded only as a punitive measure against unrelated wrongdoing by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. This power is not to be used as an indirect mode of disciplining misconduct.

Id. at 70-71, 64 S.Ct. at 898, 88 L.Ed. at 1143.

We believe that the facts in the instant case compel a similar treatment. It is undisputed that appellant uttered an inculpatory remark soon after his arrest at police headquarters. Although he was illegally detained for more than six hours before his arraignment, we nevertheless find that the illegality of the detention is unrelated to the "blurt out." Appellant's remarks were not induced by police inquiry or other official action; rather, the statements were made as a voluntary and spontaneous act of free will. Clearly this is not a case in which "important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will." Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242, 248.

[ 350 Pa. Super. Page 604]

We are not convinced that the subsequent illegal detention of appellant in this case should negate his prior voluntary act. Surely, suppression would serve no useful purpose but to deny logic in an absurd effort to strike out at police misconduct. In conclusion, we must not forget the words of the Greek tragic playwright, Aeschylus, when he said, "Wrong must not win by technicalities." We therefore ardently affirm the denial of the suppression motion.


Finally, appellant argues that the trial court erred in denying his bid for a new trial on the basis of after-discovered evidence. Following appellant's conviction for retail theft, an individual by name of Christy admitted to appellant's counsel that he had committed the crime for which appellant was convicted. At an evidentiary hearing, Christy confessed to the crime, exonerated appellant, and explained why he had not come forward prior to this time.*fn9 The trial court subsequently denied appellant's motion by an order dated October 1, 1982 and filed October 5, 1982, but unfortunately it did not address this issue in a formal opinion.*fn10 Consequently, we are unable to review this matter at this time since we do not have before us the lower court's analysis. We therefore remand for an opinion by the trial court in support of its decision. We further vacate the judgment of sentence pending the trial court's disposition of this issue, at which time that court may reimpose sentence if it is deemed appropriate. Jurisdiction is relinquished.

SPAETH, President Judge, concurring:

I join Parts I and III of the majority opinion.

[ 350 Pa. Super. Page 605]

As to Part II, I agree with the majority's conclusion that appellant's statement was admissible although more than six hours elapsed between his arrest and preliminary arraignment. In my opinion, the Supreme Court has already determined that Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), does not require suppression of a blurted out statement. In Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982), the Court said that Davenport did not "establish[] a rigid standard impervious of the purposes it was intended to serve," and that "[a]t no time did [the Court] wish to cut off freely volunteered confessions." Id., 500 Pa. at 150, 454 A.2d at 1007. Suppression of appellant's statement would not further "[ Davenport's ] primary purpose . . . to discourage the obtaining of incriminatory information through coercive means." Id.

[ 350 Pa. Super. Page 606]

In any case, Davenport has for practical purposes been overruled, albeit not formally. Various of the Justices of the Supreme Court have repeatedly said that the rule enunciated in Davenport is unsatisfactory. See Commonwealth v. Keasley, 501 Pa. 461, 464, 462 A.2d 216, 217 (1983) (McDERMOTT, J., concurring) ("Any departure from a rigid application of the six-hour rule of Davenport [] is a step in the right direction."); Commonwealth v. Jenkins, supra, 500 Pa. at 152, 454 A.2d at 1008 (McDERMOTT, J., concurring) ("We must therefore discard Davenport and return to a more flexible approach."); Commonwealth v. Bennett, 498 Pa. 656, 658, 450 A.2d 970, 971 (1982) (FLAHERTY, J., joined by HUTCHINSON, J., concurring) ("a delay of more than six hours should not per se render any prearraignment statement inadmissible"); Commonwealth v. Blady, 492 Pa. 285, 286, 424 A.2d 864, 864 (1980) (LARSEN, J., joined by FLAHERTY, J., dissenting) (expressing dissatisfaction with mechanical application of rule). While these individual expressions do not themselves constitute an overruling of Davenport, it is nevertheless significant that they have been uttered by a majority of the members of the Court. What persuades me that Davenport has for practical purposes been overruled is the Court's decision in Commonwealth Page 606} v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983). There the Court by ZAPPALA, J., joined by LARSEN, FLAHERTY, McDERMOTT, and HUTCHINSON, JJ., found exigent circumstances, but added in dictum that "the continuing vitality of the Davenport rule as a whole is subject to speculation . . .," id. at 490, 467 A.2d at 296 (citing the cases I have just cited). Neither the concurring opinion, by NIX, J., nor the dissenting opinion, by ROBERTS, C.J., took issue with this dictum. I agree, however, with the proposition implicit in the majority opinion, that until Davenport has been expressly overruled, it must be followed.

McEWEN, Judge, concurring and dissenting:

*fn* Spaeth, P.J., participated in the consideration of this case before the expiration of his term on the Court.

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