Com. v. Hitson

• Decision Date: 11 November 1978
• Citation: 393 A.2d 1169,482 Pa. 404
• Parties: COMMONWEALTH of Pennsylvania v. David HITSON, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 1169

393 A.2d 1169

482 Pa. 404

COMMONWEALTH of Pennsylvania v. David HITSON, Appellant (two cases).

Supreme Court of Pennsylvania.

Argued April 17, 1978.

Decided Oct. 5, 1978.

Reargument Denied Nov. 11, 1978.

[482 Pa. 405] Allen N. Abrams, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Nancy D. Wasser, Philadelphia, for appellee.

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

OPINION

LARSEN, Justice.

Appellant was convicted in a nonjury trial of voluntary manslaughter and possession of instruments of crime. Appellant appealed the judgment of sentence on the voluntary manslaughter conviction to this Court. The judgment of sentence on the possession of instruments of crime conviction was appealed to the Superior Court, which certified that appeal to this Court.

Appellant argues that the suppression court erred in not suppressing an inculpatory statement given by appellant to police. Appellant contends that the statement, given eight hours after he arrived at the police station, was the product of an unnecessary delay between arrest and arraignment and therefore, should be suppressed. Appellant claims that the admission of this statement into evidence violated Pennsylvania Rule of Criminal Procedure 130 ¹ and our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) wherein we held that evidence obtained during and reasonably related to an "unnecessary delay" between arrest and arraignment must be excluded. ²

Subsequent to our decision in Futch, we held that in determining whether a defendant's incriminating statement was the product of an "unnecessary delay", we must examine the time which elapsed between defendant's arrest and his statement. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974).

In reviewing the suppression court's determination, we will consider only the evidence of the Commonwealth and the uncontradicted evidence of appellant. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). The record reveals that appellant was arrested at 5:30 a. m. on August 20, 1975. He arrived at the Police Administration Building at 5:55 a. m. and at 6:00 a. m., the police warned appellant of his constitutional rights and of the charges against him. The police questioned appellant between 6:00 a. m. and 9:10 a. m. and during this interrogation, appellant made statements indicating that he did not shoot Earl Blake. To verify this and with appellant's consent, a polygraph examination was conducted from 9:10 a. m. to 1:30 p. m. At 1:30 p. m., appellant was informed that he failed the polygraph examination. Appellant was rewarned of his constitutional rights and at 1:55 p. m., appellant admitted shooting Earl Blake. Between 2:10 p. m. and 2:40 p. m., appellant gave a written statement. He was subsequently arraigned.

The period of time which we are concerned with is the eight hour period between 5:55 a. m. (the time of appellant's arrival at the Police Administration Building) and 1:55 p. m. (the time that appellant incriminated himself). Commonwealth v. Coley, 466 Pa. 53, 351 A.2d 617 (1976). During the eight hour delay, there was a period of four hours and twenty minutes during which the polygraph examination was administered. Since the polygraph examination was administered to verify the statements that appellant made during the first interrogation session (which indicated that he did not shoot Earl Blake), this delay was a "necessary step in the police process" and hence does not constitute unnecessary delay. Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975). Excluding this four hour and twenty minute period, the length of the delay from the time that appellant arrived at the police station to the time that appellant gave his first incriminating statement was three hours and forty minutes this is not an "unnecessary delay" under Futch. ³

Judgments of sentence affirmed.

ROBERTS, J., filed a concurring opinion in which NIX, J., joined.

POMEROY, J., filed a concurring opinion.

O'BRIEN, J., filed a dissenting opinion in which MANDERINO, J., joined.

ROBERTS, Justice, concurring.

The opinion of Mr. Justice Larsen rejects appellant's claim that his inculpatory statement to police was the product of unnecessary delay, but never considers whether appellant properly preserved the issue for appellate review. In Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), we cautioned persons moving for post-verdict relief that our Court would no longer excuse failure to comply with Pa.R.Crim.Proc. 1123(a) ("only those issues raised and the grounds relied upon in the motions may be argued"). I remain of the view expressed in Commonwealth v. Roach, 477 Pa. 379, 381, 383 A.2d 1257, 1258 (1978) (Roberts, J., concurring), that Blair must be given effect beginning March 1, 1975, the date of Blair's publication in the Atlantic Second advance sheets. "(I)t would be unfair to impose upon (a person seeking post-verdict relief) a decision of which he could not be aware." Id., 477 Pa. at 381, 383 A.2d at 1258. Appellant, however, filed boilerplate post-verdict motions on February 13, 1976, eleven months after Blair's publication. Because appellant's boilerplate post-verdict motions did not raise the issue of unnecessary delay, I would hold that appellant did not properly preserve this issue for appellate review.

NIX, J., joins in this concurring opinion.

POMEROY, Justice, concurring.

I agree with Mr. Justice Larsen's conclusion that the lower court correctly refused to suppress appellant's statement. I write separately, however, because the opinion of my brother Roberts may introduce some uncertainty in the area of the law that I had thought to be settled.

Mr. Justice Roberts would hold appellant's Futch claim waived for want of compliance with the requirements of Pa.R.Crim.P. 1123(a) and our decision in Commonwealth v. Blair, 460 Pa. 31, 33 n.1, 331 A.2d 213, 214 n.1 (1975). In my view, however, we must reach the merits of appellant's claim. As Mr. Justice O'Brien points out in part I of his dissenting opinion, we have engrafted a limited exception to the rule of Blair, namely that where, as here, an issue is not raised in post-trial motions or a supplement thereto, but is raised in a defendant's post-trial brief in the trial court, and that court considers the issue on the merits, an appellate court also will consider the merits of the claim. Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Smith, 474 Pa. 559, 561 n.8, 379 A.2d 96 (1977); Commonwealth v. Perillo, 474 Pa. 63, 65-66 & n.2, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977). When, however, the trial court follows the requirements of Blair and refuses to consider issues raised in the post-trial briefs because not set forth in post-trial motions, its action will not be disturbed on appeal; we will hold the issue waived. Commonwealth v. Carrillo, 483 Pa. --- at ---, 395 A.2d 570 at 571 (1978); Commonwealth v. Kozek, 479 Pa. 171, 387 A.2d 1278 (1978) (disapproving dicta to the contrary in Commonwealth v. Marrero, 478 Pa. 97, 385 A.2d 1331 (1978)); Commonwealth v. McClain, 478 Pa. 10, 385 A.2d 970 (1978). ^*

One may agree that it is rather incongruous for this Court to make its finding of waiver Vel non turn on the action taken by the lower court on an issue that, strictly speaking, should be deemed waived. Nonetheless, if we were now to overrule the exception to Blair allowed in Grace and followed in Perillo, Smith, And Pugh, such action should be prospective only. I can see no reason to deny this particular appellant a consideration of the merits of his claims when other appellants, similarly situated, have been granted consideration, and sometimes relief. See Pugh, supra; Smith, supra; Perillo, supra (new trial granted in each case).

In light of the exception to the Blair rule which our decisions, wisely or not, have carved out and which appear to reflect the views of a majority of this Court, I think that Mr. Justice Larsen and Mr. Justice O'Brien are correct in considering the merits of appellee's Futch claim. Having also followed this approach, I agree that the judgments of sentence should be affirmed.

O'BRIEN, Justice, dissenting.

I dissent from the opinion by Mr. Justice Larsen and his determination that appellant's confession was not obtained in violation of Pa.R.Crim.P. 130 (formerly Pa.R.Crim.P. 118) and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

I. REVIEWABILITY

I must initially comment that I believe, as does Mr. Justice Larsen, that the issue is properly preserved for appellate review.

On February 13, 1976, appellant filed boilerplate post-verdict motions reserving the right to file supplemental reasons. No such additional reasons were filed. Appellant did, however, file a memorandum in support of his post-verdict motions, in which all of the now proffered allegations of error were presented. The court below considered and decided all of appellant's allegations, except the issue of whether there was probable cause to arrest appellant. The court below determined that issue was not properly before it for consideration because of appellant's failure to include the argument in his suppression motion.

The remaining issues now presented to this court are properly preserved for appellate review.

In Commonwealth v. Blair, 460 Pa. 31, 33, 331 A.2d 213 (1975), n. 1, this court stated:

". . . Appellant's written post-trial motions were boiler plate challenges to the sufficiency of the evidence. Although counsel apparently made more specific oral motions that were considered by the court, the Pennsylvania Rules of Criminal Procedure, rule 1123(a), 19 P.S. Appendix, requires written post-trial motions.

"The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. ...