Com. v. Nickol

• Court: United States State Supreme Court of Pennsylvania
• Citation: 476 Pa. 75,381 A.2d 873
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth N. NICKOL, Appellant.
• Decision Date: 23 December 1977

Page 873

381 A.2d 873 476 Pa. 75 COMMONWEALTH of Pennsylvania
v.
Kenneth N. NICKOL, Appellant. Supreme Court of Pennsylvania. Submitted Oct. 17, 1977.
Decided Dec. 23, 1977.

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[476 Pa. 77] Michael J. Cefalo, Public Defender, Bruce S. Miller and Joseph F. Sklarosky, Asst. Public Defenders, for appellant.

Thomas J. Glenn, Jr., Asst. Dist. Atty., for appellee.

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

OPINION OF THE COURT

POMEROY, Justice.

Appellant, Kenneth Nickol, was convicted on January 24, 1975, in a non-jury trial of murder of the second degree, robbery and carrying a firearm without a license. Following denial of post-trial motions, appellant was sentenced to life imprisonment on the murder charge and to terms of imprisonment of seven and one-half to fifteen years on the robbery count and one to two years on the firearms conviction (the two latter sentences to run consecutively). These appeals followed. ¹ We affirm the judgments of sentence.

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The record discloses that on April 4, 1974, the appellant, his brother David, William Angelo and Debra Busse Knorr arrived at a supermarket in Wilkes-Barre, Pennsylvania, in an automobile driven by Knorr. The vehicle stopped alongside the market and the driver kept the motor running while appellant entered the store. Once inside, Nickol proceeded to the manager's booth where he produced a gun and demanded that a paper bag be filled with money. The manager, Michael Grozio, observed these events and gave [476 Pa. 78] chase to the appellant as he fled the store. Outside the store, Nickol ordered Grozio to stop, and fired a warning shot in the air; the manager, however, continued in pursuit. Nickol then turned and fired three or four shots at Grozio, fatally wounding him. Nickol rejoined his companions in the waiting car and the four drove to Hazelton, where they were apprehended by police the next morning. Nickol, however, escaped arrest and remained at large until his capture by FBI agents on July 9, 1974, in Fort Collins, Colorado. The appellant waived extradition and on July 17 was returned to Luzerne County where he was tried and convicted.

Three errors are alleged to have been made pretrial by the court of common pleas which require a new trial or a discharge. It is also claimed that judgment should be arrested on the weapons offense for insufficient evidence. We find no merit in any of these contentions.

(1) Appellant's first contention is that an oral statement given to police shortly after his arrest in Colorado should have been suppressed as the result of an unnecessary delay between arrest and arraignment. Pa.R.Crim.P. 130; ² Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

The Luzerne County district attorney's office was notified of appellant's arrest on July 11, 1974, and undertook preparations to have Nickol returned. On July 15, three Wilkes-Barre police officers flew to Colorado, and on the following morning met with Nickol in the coffee room of the Lattimer County Colorado Prison. Nickol was advised of his constitutional rights, and waived them, subject to the condition that anything he said would not be written down or taped. Almost immediately after starting to talk, Nickol confessed to the robbery and the shooting of Grozio. The total time consumed in this meeting was about forty-five minutes. The police officers then left the prison, made travel arrangements[476 Pa. 79] and, on the following morning, returned with Nickol to Wilkes-Barre where they arrived on the evening of July 17, 1974. Appellant was then promptly taken before a magistrate, arraigned and thereafter jailed.

It is appellant's position that the delay of about 41 hours between his arraignment and the time police officers arrived in Fort Collins violates Rule 130. This claim borders on the frivolous. Under the circumstances of this case, the lapse of time, although considerable, cannot be said to have been unnecessary. See Commonwealth v. Futch, supra. Our case law recognizes instances of permissible delay between arrest and arraignment where such delay is the unavoidable result of administrative procedures. See Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975); Commonwealth v. Blagman, 458 Pa. 431, 326 A.2d 296 (1974); Commonwealth v. Futch, supra. Here the unusual distance involved, together with the attendant problems of travel fatigue, coordination of booking arrangements, etc., satisfactorily justifies the delay. Furthermore, even were we to conclude that some of the time involved in taking Nickol to a magistrate was not necessary, there was clearly no nexus between the delay and the giving of the inculpatory

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statement. Nickol confessed almost immediately after meeting with the police; he may not now rely on a delay subsequent to the giving of that initial statement to support a "Futch " claim. See...