Com. v. Perkins

• Decision Date: 03 June 1977
• Citation: 373 A.2d 1076,473 Pa. 116
• Parties: COMMONWEALTH of Pennsylvania v. Robert PERKINS, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 1076

373 A.2d 1076

473 Pa. 116

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

Supreme Court of Pennsylvania.

Submitted Nov. 15, 1976.

Decided June 3, 1977.

[473 Pa. 123] Stewart A. Bernstein, Philadelphia, for appellant.

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

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

OPINION

EAGEN, Chief Justice.

On March 4, 1975, appellant, Robert Perkins, was convicted by a jury of murder of the second degree, robbery, conspiracy and possession of an instrument of crime. Following the denial of post-verdict motions, a sentence of life imprisonment was imposed on the murder conviction. Prison sentences were also imposed on the robbery conviction (10--20 years) and the conspiracy conviction (5--10 years), these sentences to run concurrently with the life sentence, but consecutively to one another. Sentence was suspended on the conviction of possession of an instrument of crime. Perkins filed a direct appeal to this Court from the judgment of sentence on the murder conviction. The judgments of sentence on the robbery and conspiracy convictions were appealed to the Superior Court, which certified that appeal to this Court.

Perkins advances numerous assignments of error in support of reversal of the judgment and the grant of a new trial. For the reasons stated herein the judgments of sentence are affirmed.

The Commonwealth's evidence may be summarized as follows. On August 25, 1974, at approximately 8:17 a.m. the body of one Garvin Peters was discovered amidst the rubble and debris of an abandoned property at 1636 North Franklin Street, Philadelphia. According to the testimony of Detective Robert Flannery, the officer who found the body, the victim's hands were tied and the body was lying in a pool of blood; also the victim's trouser pockets, one of which was torn, were turned out. The victim was pronounced dead at the scene and the cause of death was later established as multiple (eight) stab wounds of the chest and back. The medical examiner estimated the time of death as between 6:30 p.m. and 11:30 p.m. the previous night, August 24, 1974. The medical examiner also testified that the victim had cuts and bruises about his lips and that the victim's wounds were consistent with the type of wound which could be inflicted with a kitchen knife. He further opined that the victim was intoxicated at the time of death since the toxicology report indicated the alcoholic content of the victim's blood was .21 percent.

Detective Wilford Doyle, the assigned investigator in the case, testified he interviewed the victim's wife shortly after the discovery of the body and, as a result thereof, issued a police alert to be on the lookout for the victim's automobile, a dark green 1973 Oldsmobile Delta 88 with a white vinyl top, license plate number 61J--444. This automobile was located that afternoon at a parking lot at 15th Street and Columbia Avenue. The automobile's front fenders were damaged and the left front tire was flat.

Gregory Page testified next for the Commonwealth and related that he saw Perkins (although at the time he knew him only by the name 'Halfgun') on August 25, 1974, at approximately 1:30 a.m. in the neighborhood of 1714 North 15th Street, near Columbia Avenue. According to Page's testimony, Perkins and another individual named Thor were having a discussion concerning whether Thor was sober enough to drive a certain automobile, which Page identified as a green white-topped 1973 Delta 88, parked on 15th Street near the corner of Columbia Avenue. The result of the discussion was that Perkins took something ¹ from his pocket and handed it to Thor, who then drove away in the car. Page further related that the same vehicle was parked in the parking lot at 15th Street and Columbia Avenue at 7:45 a.m., August 25, 1974, and that he observed the police photographing this automobile at 4:30 p.m. the same day. At trial Page identified the photographs taken by the police of the automobile found at 15th and Columbia as being photographs of the same car he referred to in his testimony.

The Commonwealth also introduced two statements made by Perkins on August 29, 1974, at the Police Administration Building. The first statement, made to Detective Raymond Dougherty between 7:15 a.m. and 8:53 a.m., was exculpatory in nature. The second statement, however, made to Detective William O'Brien between 9:02 a.m. and 9:50 a.m., was incriminating. The substance of the second statement was as follows: On the night of August 24, 1974, Perkins and an individual named Chinaman ² decided to go to a party. After picking up a knife ³ at Chinaman's house ('in case there was any trouble at the party'), the pair had proceeded on their way, when it began to rain. They stopped at a Gino's restaurant where Chinaman asked 'this old guy' (Peters), who was 'drunk or something' for a ride to the party. Peters indicated he would give Chinaman a ride and went out to his car; Perkins and Chinaman followed. When Peters realized Perkins was also coming, he refused to take them; a fight ensued during which Chinaman punched Peters in the face and Perkins stabbed him in the back a number of times. The two put Peters, who was 'still moving around,' in the back seat of the car, tied his hands, went through his pockets and took his wallet. At Chinaman's direction, Perkins drove the car to a 'little street' where they dumped Peters, who was 'still moving around,' behind some houses. At this point, Perkins gave Chinaman the knife to dispose of and they then drove to the party at 11th and Huntington Streets. Following the party, the two again took the car, with Chinaman driving. After Chinaman 'crashed two times,' Perkins took control and drove the car down to 15th Street, where 'everybody else was driving it around.'

Initially, Perkins contends he is entitled to a new trial because his confession should have been suppressed as the product of an unnecessary delay between arrest and arraignment in violation of Pa.R.Crim.P. 130 and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) (hereinafter Futch). We do not agree.

Considering only the evidence presented by the Commonwealth and so much of the evidence for the defense as remains uncontradicted, Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975), the following facts were established at the suppression hearing: Perkins was arrested without a warrant on August 29, 1974, at 6:50 a.m. at his residence by Detectives Doyle and Dougherty. He was transported to the Police Administration Building and placed alone in an interview room at 7:01 a.m. At 7:15 a.m. he was questioned by Detective Dougherty who initially identified himself and informed Perkins he was being questioned 'concerning the homicide by stabbing of Garvin Peters, fifty three, Negro male, residence--1922 West Willard Street, found on the highway in the rear of 1636 North Franklin Street on Sunday, August 25th, 1974.' Dougherty advised Perkins of his rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked him the accompanying questions on a standard police interrogation card. Perkins' answers to those questions indicated an awareness of his rights and a willingness to waive them. Perkins denied any knowledge of the killing, but expressed a willingness to take a polygraph examination. This interview was concluded at 8:53 a.m. and Perkins was left alone until 9:02 a.m., when the questioning was continued by Detective O'Brien. O'Brien identified himself and Detective Doyle, who was also present, and again informed Perkins he was being questioned in connection with Peters' death. O'Brien also advised Perkins of his constitutional rights and asked the accompanying questions from the police interrogation card. Perkins again indicated his willingness to answer questions without the presence of an attorney. Almost immediately after the interview began Perkins made an incriminating statement, which was recorded on a typewriter by O'Brien as Perkins spoke. This statement was concluded by 9:50 a.m. Perkins was then allowed to use the lavatory and at 10:10 a.m. he was given a sandwich, coffee and cake. Between 10:35 a.m. and 10:50 a.m. Perkins read and signed each page of the statement. The suppression hearing record further establishes that Perkins was alert and responsive throughout both periods of questioning, he exhibited no signs of being under the influence of drugs or alcohol, he made no complaint of any physical discomfort, and he was not threatened, harassed or physically abused. He was arraigned at approximately 1:30 p.m.

The relevant time period to be considered in evaluating a Futch claim is that between arrest and the incriminating statement. Commonwealth v. Taylor, --- Pa. ---, 370 A.2d 1197 (1977); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Palmer, 463 Pa. 26, 342 A.2d 387 (1975); Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974). Here, Perkins began his incriminating statement shortly after 9:00 a.m., approximately two hours and ten minutes after his arrest. ⁴ Such a short period of time has never been held to be offensive to the Futch rule. Commonwealth v. Boone, supra. Based on these facts we find there was no Futch violation instantly. See Commonwealth v. Taylor, --- Pa. ---, 370 A.2d 1197 (1977); Commonwealth v. Boone, supra; Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975); Commonwealth v. Palmer, supra; Commonwealth v. Young, 460 Pa. 598, 334 A.2d 252 (1975); Commonwealth v. Rowe, supra. Accordingly, Perkins' contention his confession should have been suppressed is rejected. ⁵

The next group of assignments of error relates to the trial court's refusal to instruct the jury according to several points of...