Com. v. Coach

• Decision Date: 10 May 1977
• Citation: 370 A.2d 358,471 Pa. 389
• Parties: COMMONWEALTH of Pennsylvania v. Robert Wesley COACH, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 358

370 A.2d 358

471 Pa. 389

COMMONWEALTH of Pennsylvania v. Robert Wesley COACH, Appellant (two cases).

Supreme Court of Pennsylvania.

Submitted Oct. 21, 1975.

Decided Feb. 28, 1977.

Reargument Denied May 10, 1977.

Richard A. McDaniel, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Barry H. Oxenburg, Philadelphia, for appellee.

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

OPINION OF THE COURT

O'BRIEN, Justice.

This appeal arises from the conviction of appellant, Robert Wesley Coach, for the robbery and murder of John Schmidt on September 12, 1972, in Philadelphia. Appellant was tried by a judge and jury, and on April 19, 1973, was found guilty of murder in the second degree and aggravated robbery. Post-verdict motions were denied, and on June 12, 1974, appellant was sentenced to not less than ten nor more than twenty years at a state correctional institution on the murder conviction and was given a five to ten year consecutive sentence for the aggravated robbery conviction. Appellant appealed the murder conviction to this court and the aggravated robbery conviction to the Superior Court, which certified the latter case to this court.

The facts surrounding this appeal are as follows. At approximately 4:50 p.m. on September 12, 1972, the decedent, John Schmidt, a mechanic for Breuninger's Dairy in Philadelphia, was shot while road testing one of the dairy's trucks. Two Philadelphia police officers on stakeout observed three males standing near Schmidt's truck. Three shots were fired, the decedent stumbled from the truck into the alley, and the three males fled from the scene. The police pursued the three individuals, who split into two groups. One of the officers pursued appellant and after several warnings to stop, shot the appellant in the leg.

The official police chronology reveals the following: Appellant was arrested and taken to Temple University Hospital, arriving at approximately 5:10 p.m. While at Temple, appellant gave two statements, the second of which was inculpatory. The inculpatory statement concluded at 8:35 p.m., at which time appellant was transferred to Philadelphia General Hospital. Appellant was subsequently transferred to the Police Administration Building, arriving at approximately 1:40 a.m. He was warned and interviewed from 2:00 to 2:18 a.m. He was then fed and allowed to remain alone until 5:35 a.m., at which time appellant gave a formal typewritten statement, which statement concluded and was signed at 6:50 a.m. He was again allowed to remain alone until 10:00 a.m., at which time another 'interview' was conducted until 10:15 a.m. A final 'interview' was conducted at 10:30 a.m., until 10:40 a.m. At 12:10 p.m., appellant was arraigned. Thus, he was arraigned approximately nineteen hours after his arrest and sixteen hours after his initial inculpatory statement.

Appellant argues that the court below erred in refusing his requested point for charge that unnecessary delay between arrest and arraignment is a factor to be considered by the jury in determining the voluntariness of the confession. We agree.

In the instant case, appellant's counsel requested that the court charge the jury that unnecessary delay between arrest and preliminary arraignment is one of the factors to be considered in determining the voluntariness of the confession. The court below denied the requested charge stating that unnecessary delay is a question of law and out of the jury's province. We do not agree.

This court, in Com. ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426, 432 (1968), in discussing the necessity of prompt arraignment, stated:

'Finally, we attach some weight to the fact that Butler was not taken before a magistrate until a week after he was first taken into custody. Under the rule announced in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), a confession is automatically invalidated where a prisoner is not promptly taken before a committing magistrate. The delay of approximately twelve hours between the arrest and confession would of itself be violative of the dictates of promptness. Although we do not attach the conclusiveness to the failure to take the prisoner before a magistrate that the federal courts do, it is a factor to be considered. It appears that the failure to take a defendant promptly before a magistrate is a violation of Pennsylvania law in any case. In Commonwealth v. O'Brien, 181 Pa.Super. 382, 392, 124 A.2d 666, 672 (1956), although the Court did not feel that a substantial right had been violated, it said: 'The right of an accused to a preliminary hearing, with certain exceptions, has become a part of the law of this Commonwealth * * *.'

'The Act of 1869 was interpreted by this court in Commonwealth v. Johnson, 365 Pa. 303, 74 A.2d 144 (1950), reversed on other grounds 340 U.S. 881, 71 S.Ct. 191, 95 S.Ct. 640 (1950), where we stated: '(T)he effect of the mere denial of a prompt preliminary examination is a matter of state, not of federal, law and to refuse it does not constitute a violation of the fourteenth amendment although It is one of the facts to be considered on an allegation that a confession used at the trial was coerced.'

(Emphasis added)' (Earlier emphasis added.)

In Commonwealth v. Koch, 446 Pa. 469, 474--75, 288 A.2d 791, 794 (1972), in reaffirming the relevancy of 'unnecessary delay' as a factor to be considered in judging the voluntariness of the confession, this court stated:

'. . . Rule 118 (now 130) of the Pennsylvania Rules of Criminal Procedure requires that a defendant 'shall be taken without unnecessary delay before the proper issuing authority' where 'the defendant shall be given an immediate preliminary arraignment.' The presence of 'unnecessary delay' in securing a preliminary arraignment is a factor to be considered in assessing the voluntariness of a confession. Commonwealth v. Moore, 444 Pa. 24, 30, 279 A.2d 146, 149 (1971); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 153, 239 A.2d 426, 432--433 (1968); see Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943).'

The Commonwealth seeks to support the failure to charge on 'unnecessary delay' by questioning the validity of Commonwealth v. Koch after this Court's decision in Commonwealth v. Futch, 147 Pa. 389, 290 A.2d 417 (1972). The question of 'unnecessary delay' is a question of law when used to advance an argument under Pa.R.Crim.P. 130 (formerly 118) and Commonwealth v. Futch, and the line of cases which followed. A criminal defendant cannot relitigate at trial a suppression court's adverse determination on the Futch issue. However, Pennsylvania allows a criminal defendant to attack the voluntariness of his confession both at a suppression hearing and at trial. The issue of voluntariness is properly before a suppression court and also is a proper trial issue for the factfinder. The factfinder at trial cannot consider the confession as evidence if he factually determines that it was involuntarily given by the defendant.

In Commonwealth v. Simms, 455 Pa. 599, 602--3, 317 A.2d 265 (1974), a Post-Futch decision, this court clearly indicated the continued vitality of unnecessary delay as a factor to be considered by the fact-finder in determining the voluntariness of the confession:

'. . . Circumstances which must be considered include the accused' physical and mental condition, the delay between arrest and arraignment, the attitude of the police, and other 'diverse pressures.' Culombe (v. Connecticut, 367 U.S. 568, at 602), 81 S.Ct. (1860) [471 Pa. 395] at 1879 (, 6 L.Ed.2d 1037); (Commonwealth v.) Eiland, 450 Pa. (566,) at 573--574, 301 A.2d (651,) at 654. * * *

'Although this case does not turn on an application of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), The unnecessary delay prior to arraignment is nevertheless relevant in determining the voluntariness of Simms' confession. Commonwealth v. Eiland, 450 Pa. 566, 572, 301 A.2d 651, 653 (1973); Commonwealth v. Koch, 446 Pa. 469, 474--475, 288 A.2d 791, 793--794 (1972). Even prior to Futch an unnecessary delay in arraignment could be considered in assessing the totality of the circumstances influencing an accused's decision to confess. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 154--155, 239 A.2d 426, 432--433 (1968).'

Moreover, delay between the confession and the arraignment must also be considered. Post-confession delay prior to arraignment is relevant and may be expository of pre-confession police tactics.

In Commonwealth ex rel. Butler, supra, this court articulated the relevancy of post-confession delay:

'. . . We cannot accept the contention that since the confession was made on the day of arrest, the succeeding six days are irrelevant to a consideration of the question of voluntariness of the confession. Haley v. State of Ohio, 332 U.S. (596, 68 S.Ct. 302, 92 L.Ed. 224 (1948)), at 600, 68 S.Ct. at 304, dealt with the question of post-confession improper police tactics: 'It is said that these events are not germane to the present problem because they happened after the confession was made. But they show such a callous attitude of the police towards the safeguards which respect for ordinary standards of human relationships compels that we take with a grain of salt their present apologia that the five-hour grilling of this boy was conducted in a fair and dispassionate manner. When the police are so unmindful of these basic standards of conduct in their public dealings, their secret treatment of a 15-year old boy behind closed doors in the dead of night becomes darkly suspicious.' Here, too, the post-confession activity of the police colors the proceedings leading up to that confession.' (Emphasis supplied.)

The pertinent except of the court's...