Com. v. Miller

• Decision Date: 18 December 1981
• Citation: 293 Pa.Super. 281,438 A.2d 995
• Parties: COMMONWEALTH of Pennsylvania, v. Allen T. MILLER, Appellant.
• Court: Pennsylvania Superior Court

Page 995

438 A.2d 995

293 Pa.Super. 281

COMMONWEALTH of Pennsylvania, v. Allen T. MILLER, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 11, 1980.

Filed Dec. 18, 1981.

Louis Lipschitz, Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.

VAN der VOORT, Judge:

Appellant was indicted at Nos. 118 (assault and battery, aggravated assault and battery and assault with intent to murder), 119 (aggravated robbery), and 120 (burglary). ¹ A suppression hearing was conducted, after which the court denied the motion to suppress. Defendant was tried and convicted of all the above charges. Post-trial motions were made orally, argued and denied. Appellant was sentenced to a total term of thirteen and one-half (131/2) to forty-seven (47) years in prison. This court affirmed the judgments of sentence at Commonwealth v. Miller, 243 Pa.Superior Ct. 582, 371 A.2d 234 (1976) (per curiam). ² The Supreme Court denied allowance to appeal. Appellant had been represented by the Defenders Association throughout the above proceedings.

Subsequently, appellant filed a Post Conviction Hearing Act petition. New counsel was appointed to represent appellant. Following a hearing on appellant's PCHA petition the court denied relief. An appeal was taken to this court. Such appeal was nonprossed but later reinstated. Appellant obtained new counsel not associated with the Defenders Association for this appeal.

Appellant raises five questions on this appeal, all of which attack the effectiveness of all previous counsel. None of these issues were raised below. ³ We have rearranged the order of these contentions, reserving appellant's first contention for consideration last.

Appellant's second and third contention both pertain to the pre-trial line-up identification; these will be considered jointly. He first argues that post conviction hearing counsel was ineffective in failing to argue that previous counsel was ineffective in failing to preserve the contention that the line-up was a product of unnecessary delay between arrest and arraignment. Next he similarly argues counsel's effectiveness for not challenging the line-up as being the tainted fruit of an illegal arrest.

Before inquiring into these claims we must determine whether the claim which counsel is charged with failing to pursue was a frivolous one. See, Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977). "Only if the claim which was foregone was of arguable merit must we inquire into counsel's reasons for not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977)". Commonwealth v. Gasper, 262 Pa.Superior Ct. 141, 396 A.2d 685 (1978).

Appellant was arrested at 4:00 p. m. on April 18, 1973. A line-up including appellant was conducted at 5:50 p. m. viewed by Hilda Snead, who tentatively identified appellant as the gunman. A second line-up was held on April 19, 1973 at 12:15 p. m.; a Mr. Rosenberg and a Mr. Lazier identified the appellant as the actor who had shot them. Both of these witnesses had been hospitalized from the time of the shooting until shortly before the line-ups. Appellant was arraigned sometime thereafter.

A. Appellant specifically argues that previous counsel was ineffective in not questioning the above delayed arraignment which he argues invalidates any pre-trial as well as in trial identification of appellant. He contends that under Rule 116 Pa.R.Crim.P. (now renumbered Rule 122) the identifications should have been suppressed. Rule 116 ⁴ (now Rule 122) reads:

When a defendant has been arrested, with a warrant, within the county where the warrant of arrest was issued, where the complaint charges a court case, he shall be taken without unnecessary delay before the issuing authority whose name appears upon the warrant for preliminary arraignment.

The leading case in this area is Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). In Futch, the Supreme Court found a 14 hour delay to be an "unnecessary delay." The court found that Futch had refused to sign a waiver-of-counsel form for the line-up. It also determined that the waiver was misleading and found the line-up was suggestive. Accordingly, the court found the identification evidence resulting from such a line-up should have been excluded. However, the court "held that failure to comply with Rule 118 (116) does not ipso facto render inadmissible evidence obtained by the police during the 'unnecessary delay' and that it is incumbent upon defendant to show some prejudice from the delay." Id. at 393, 290 A.2d 417. The court at page 392, 290 A.2d 417, quoted Judge, now Chief Justice Burger:

"Necessary delay can reasonably relate to time to administratively process an accused with booking, fingerprinting and other steps and sometimes even to make same (sic) limited preliminary investigation into his connection with the crime for which he was arrested, especially when it is directed to possible exculpation of the one arrested." Adams v. United States, 399 F.2d 574, 579 (D.C.Cir.1968) (concurring opinion).

Quoted also in Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975), and Commonwealth v. Rose, 265 Pa.Superior Ct. 159, 401 A.2d 1148 (1979).

Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419 (1974) reviewing the cases preceding it "delineated a three-part test to be used when inquiring into an alleged violation of Rule 118 (116). The delay must be unnecessary; evidence that is prejudicial must be obtained; and the incriminating evidence must be reasonably related to the delay." (Cites deleted). We find that the delay was not "unnecessary." The 191/2 hour or more delay was precipitated by the victims' need to recuperate from their wounds. The other identifying witness, Snead, was tentative in her identification of Miller. As the Commonwealth contends the police needed a better identification in order to be reasonably certain that appellant was the culprit.

There are necessary delays in every criminal case during which administrative details like booking, fingerprinting and some preliminary investigation concerning the nature of the crime and the arrested persons connection thereto must be explored. Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574, 579 (1968) (Concurring Opinion, Burger, J.). This is the type of necessary delay involved in the case before us. While appellant was going through the administrative procedures on (one set of) charges, the police began receiving new information and evidence on the similarities of the crime to that of the (other) incidents. It was during this time that appellant was held.

Case law supports this finding. In Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975), the delay between the time of arrest and arraignment was deemed a necessary step by police while they checked on defendant's history. In Commonwealth v. Terry, 457 Pa. 185, 321 A.2d 654 (1974), the delay was also held necessary, while police compiled lists of names of accomplices along with other administrative details.

Commonwealth v. Rose, 265 Pa.Superior Ct. 159, 167, 401 A.2d 1148 (1979). But cf. Commonwealth v. Eaddy, 472 Pa. 409, 372 A.2d 759 (1977) (where court found no justification had been established for the delay, and concluded it was unnecessary.).

We also, fail to see how the identification was reasonably related to the delay. While appellant argues that he was held without being arraigned until he could be more definitely identified we fail to see how the identification was a result of the delay.

In the present case, appellant does not attack the lineup proceedings (for which he waived his right to have counsel present. Nor does he challenge such waiver.) Nor does he claim that the lineup was of a suggestive nature. His only argument is that the identifications made at the lineup should not have been admitted at trial because the lineup was held during an unnecessary delay prior to his preliminary arraignment. Unlike the appellant in Futch, had the appellant in this case been taken before a magistrate prior to the lineup, he would have found himself in no better position. We cannot say that appellant was prejudiced by the delay.

Commonwealth v. Corbett, 228 Pa.Superior Ct. 292, 323 A.2d 836 (1974). In this respect the current appeal differs from such cases as Commonwealth v. Segers, 479 Pa. 108, 387 A.2d 858 (1978) (over 15 hour delay between arrest and inculpatory statement), Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977) (18 hour delay between arrest and statement) and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) (confession obtained 8 hours after arrest) where the court found the incriminating statements resulted from the delay. And as previously noted this case differs from Futch in that appellant waived his right to counsel where Futch clearly refused to waive such right and where the line-up was found to be suggestive. Here appellant does not claim the line-up was suggestive and from our review of the suppression hearing we find that it was not suggestive.

B. We next direct our attention to appellant's claim that prior counsel was ineffective in failing to pursue a challenge to the arrest. He argues that the Commonwealth was without probable cause to arrest him and therefore the subsequent lineup identifications were tainted by the illegal arrest.

... Probable cause has been defined as those facts and circumstances available at the time of the arrest which would justify a reasonably prudent man in the belief that a crime has been committed and that the individual arrested was the probable perpetrator. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); ...