Com. v. Cherry

• Citation: 457 Pa. 201,321 A.2d 611
• Parties: COMMONWEALTH of Pennsylvania v. David E. CHERRY, Appellant.
• Decision Date: 02 July 1974
• Court: United States State Supreme Court of Pennsylvania

Page 611

321 A.2d 611

457 Pa. 201

COMMONWEALTH of Pennsylvania v. David E. CHERRY, Appellant.

Supreme Court of Pennsylvania.

July 2, 1974.

[457 Pa. 202] Harold L. Randolph, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Bonnie Leadbetter, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, David Cherry, was tried by a judge and jury and found guilty of murder in the first degree. Post-trial motions were denied, and appellant was sentenced to life imprisonment in a state correctional institution. This appeal followed.

The facts surrounding this appeal are as follows: On the evening of April 22, 1971, at or about Midnight, two Philadelphia police officers, while patrolling the 1600 block of Wellington, heard a gunshot. They observed five men alight from an automobile and run down the street. A sixth man, Morrell Reed, staggered out of the automobile and stated 'They did it; they did it.' Three of the five were immediately apprehended by the officers, one of the three being appellant, David Cherry.

Appellant was arrested and brought to police headquarters, where he confessed to the homicide. Appellant filed a pretrial motion to suppress his confession, which was denied. Appellant now argues that the court erred in failing to suppress his confession and cites Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), to support his proposition.

Appellant was originally arrested at or about Midnight on April 22, 1971, and was taken directly to police headquarters. When the police learned that the victim had died, appellant was transferred to the homicide division, where questioning began at 2:10 a.m., on April 23, 1971. After being advised of his Miranda rights, appellant orally admitted knowledge of the crime, but denied any complicity in it. The police, unsatisfied with this response, continued questioning appellant, until 3:00 a.m., when they left him alone. He was questioned briefly at 4:50 a.m., was fed and allowed to use the restroom at 5:25 a.m., and then was left alone again until 9:15 a.m., at which time he consented to and was given a polygraph test. The test was conducted from 9:15 a.m., until 2:00 p.m., on April 23, 1971. At that time, appellant was told he had failed the polygraph test and agreed to give a statement, the taking of which was concluded at 4:00 p.m., some fourteen hours after his arrest.

Our examination of this record leads us to the conclusion that appellant is correct. His confession must be suppressed as the product of an unnecessary delay between his arrest and his arraignment.

Since appellant was originally unwilling to admit his complicity in the crime, and did not do so until after he was told that he had failed the polygraph test, some twelve hours later, during which time he had been subjected to over six hours of questioning and a lengthy period of isolation, we are convinced that appellant would not have changed his mind were it not for the events which transpired during the delay. The instant case is thus factually similar to Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973), where we stated:

'Nor can it be seriously disputed that the challenged confession was 'reasonably related' to the unnecessary delay. . . . By the police's own admission the statement appellant gave some six hours after his arrest was not 'satisfactory'; and the interrogation continued for another fifteen hours.' At pages 246--247, 301 A.2d at pages 703--704.

The Commonwealth also argues that even if the confession were related to the delay, it should be admitted because the delay was not an unnecessary one.

In the words of the Commonwealth's brief:

'At the time appellant was taken into custody, the police had little knowledge of the facts. Morrell Reed, before he died, pointed in the direction of a group of men, and said 'They did it.' . . . Two guns were found but not on the person of any of the five. Narcotics were found on the person of the decedent. The six persons interviewed gave contradictory accounts of events. Appellant denied responsibility while others indicated that he was the killer. . . . Police did not know or have any reason to believe any of the persons involved . . . so with different accounts, time was needed to 'get the facts straight!'

'Where initially, police do not have sufficient information to take a sensible determination as to whom to charge, and with what offenses, they...