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decided: October 15, 1987.


Appeal by Allowance from the April 26, 1985, Superior Court Panel Decision, No. 1598, Philadelphia 1982, on Review of Denial of Post Conviction Relief, Vacating Defendant's 1973 Conviction for Murder in the First Degree and Remanding for a New Trial and New Suppression Hearing, Information Nos. 1034-1035, December Term 1971, Court of Common Pleas of Philadelphia County, Criminal Trial Division. Pa. Superior Ct. A.2d (1985).


Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Philadelphia, for appellant.

Daniel M. Preminger, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen and Flaherty, JJ., concur in the result.

Author: Papadakos

[ 516 Pa. Page 409]


We are asked by the Commonwealth to review the issues of whether the seven year lapse before pursuing PCHA*fn1 relief constituted a waiver under the Act, and whether trial counsel was ineffective for not objecting to a confession on the allegation that it was induced because of the delay between arrest and preliminary arraignment and for not objecting to the closing statement of the prosecution.

Following the beating of the victim, the factual history of this case shows that the police requested Appellee's father to bring in his son as a suspect, then seventeen years old, for questioning. Appellee appeared with his father on November 5, 1971, at 5:35 p.m., and surrendered to the police who administered Miranda warnings in the presence of the father. Appellee then was interviewed until 6:45 p.m. with his father present, but persistently denied that he had committed the crime. Between 6:45 and 9:00 p.m. he

[ 516 Pa. Page 410]

    underwent additional questioning by the authorities. At 9:00 p.m., however, Appellee made an oral admission to the police which was completed at 9:50 p.m. The oral admission was repeated to his father, who had re-entered the interrogation room and had questioned his son about the killing, although the defendant later denied this on the stand. At 10:25 p.m., detectives informed him that the victim had died earlier at 9:35 p.m. Questioning resumed the next morning, November 6, at 8:00 a.m. when the Appellee was asked, among other matters, to identify a rock which had been used to kill the victim. That interview ended at 12:15 p.m. Appellee thereafter was left alone until 4:20 p.m. At that time, he was taken to the interrogation room where he began to give a formal written inculpatory statement. This confession was completed at 8:00 p.m. and signed by the Appellee. The father was not present. The Appellee then was arraigned before a magistrate sometime after 8:00 p.m. of that second day.

At the suppression hearing on August 27, 1972, the Appellee unsuccessfully sought to suppress the oral statement. At the jury trial itself, held on March 21, 1973, a police officer was permitted to testify over a hearsay objection that he (the officer) had asked Appellee's father whether the Miranda warnings had been understood fully, and the father had replied affirmatively. Moreover, another officer was allowed to testify that he had overheard the conversation between the Appellee and his father in which the Appellee had admitted the crime. Finally, both his oral and written confessions were introduced by the Commonwealth, as well as the lengthy testimony of an eyewitness to the beating death.

Appellee was convicted of murder of the first degree and aggravated robbery. On August 8, 1973, he was sentenced to life imprisonment for murder and ten to twenty years (concurrent) for aggravated robbery.

On direct appeal to this court, his trial counsel raised inter alia the voluntariness of his written confession and the admissibility of that written statement which he alleged

[ 516 Pa. Page 411]

    was induced by the delay between his arrest and preliminary arraignment. As to the first issue, we determined that the confession was voluntary because, "the evidence tended to show the absence of a coercive atmosphere surrounding appellant's statement." We also concluded that the testimony of the police officers was admissible, but that his contention that his formal statement was the product of an unnecessary delay had been waived by failure to preserve below. No objection to the oral confession was raised at trial or on direct appeal. Commonwealth v. Johnson, 457 Pa. 554, 557-559, 327 A.2d 632, 633-635 (1974) (Jones, C.J. and Eagen, J. concurred in the result; Manderino, J. did not ...

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