Commonwealth v. Pritchett

• Decision Date: 14 October 1983
• Citation: 320 Pa.Super. 359,467 A.2d 364
• Parties: COMMONWEALTH of Pennsylvania v. Wayne PRITCHETT, Appellant.
• Court: Pennsylvania Superior Court

467 A.2d 364

320 Pa.Super. 359

COMMONWEALTH of Pennsylvania v. Wayne PRITCHETT, Appellant.

Superior Court of Pennsylvania.

October 14, 1983

Submitted April 28, 1983.

Donald S. Bronstein, Philadelphia, for appellant.

Jane Cutler Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before ROWLEY, WIEAND and POPOVICH, JJ.

WIEAND Judge:

Wayne Pritchett was tried by jury and found guilty of first degree murder, conspiracy and weapons offenses in connection with the ambush shooting of a rival gang member in Philadelphia on September 19, 1973. A sentence of life imprisonment was affirmed by the Supreme Court on direct appeal. Commonwealth v. Pritchett, 468 Pa. 10, 359 A.2d 786 (1976). ^[1] On April 2, 1980, Pritchett filed a counselled P.C.H.A. petition which was denied after hearing. On appeal, Pritchett argues that trial counsel, who also represented him on direct appeal, was constitutionally ineffective (1) because he failed to object at trial to the introduction of inculpatory statements which allegedly were the product of unnecessary delay between arrest and arraignment; (2) because he failed to argue that Pritchett's inculpatory statements had been obtained by police in violation of the interested adult rule; and (3) because he failed to raise on direct appeal the trial court's refusal to instruct the jury on involuntary manslaughter. There is no merit in these contentions; and therefore, we affirm the order dismissing Pritchett's P.C.H.A. petition.

Pritchett was arrested at or about 3:15 a.m. on October 23, 1973. Upon arrival at the Police Administration Building, he was left alone from 4:02 a.m. until 5:27 a.m. At that time a police detective entered the room and advised Pritchett of his Miranda rights. Pritchett waived those rights and gave an inculpatory statement in which he said that he had been a member of the gang which had killed the victim and that he had been present with the killer at the time of the shooting. He denied, however, that he had done the shooting. This interview continued until 7:15 a.m., when Pritchett's father was advised that his son had given a statement. At 8:00 a.m., Pritchett was taken to the rest room, given water and again left alone. At 9:25 a.m. he was told that a co-defendant had accused him of firing the shotgun which killed the victim. Pritchett was fed, met with his father and agreed to submit to a polygraph examination. This examination began at 12:15 p.m. After it had been completed, Pritchett was told that he had failed it. He thereupon confessed, at 2:30 p.m., to pulling the trigger of the fatal weapon. He was fed again and allowed to rest. He signed a formal, written statement in his father's presence at 5:20 p.m.

Trial counsel filed a pre-trial motion to suppress Pritchett's confession on grounds that the police had used coercion including physical abuse, threats and vile language, to extract the confession and that Pritchett had been too frightened to comprehend what he was signing. The motion was denied, and the objection was not renewed at trial. On direct appeal, counsel attempted to argue that Pritchett's statements had been the result of unnecessary pre-arraignment delay and that their suppression was required by Pa.R.Crim.P. 118 (now Pa.R.Crim.P. 130) and the holding in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The Supreme Court held that the issue had not been preserved by prior objection and refused to consider it. Commonwealth v. Pritchett, supra. Pritchett contends that trial counsel was ineffective for failing to preserve the issue for appellate review.

We determine first whether there is arguable merit to the claim that appellant's confessions were the product of undue pre-arraignment delay. Only if we determine that there would have been arguable merit to such a contention must we inquire as to counsel's reasons for not preserving the claim. See: Commonwealth v. Tann, 500 Pa. 593, ---, 459 A.2d 322, 326 (1983); Commonwealth v. Linch, 318 Pa.Super. 590, ---, 465 A.2d 1010, 1011 (1983); Commonwealth v. Costanzo, 309 Pa.Super. 267, ---, 455 A.2d 153, 155 (1983); Commonwealth v. Tran, 307 Pa.Super. 489, ---, 453 A.2d 993, 996 (1982).

Pritchett's arrest was in 1973, well before the Supreme Court's decision in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), which established a six hour rule. Under the Futch rule, a three pronged test was applicable to determine whether delay between arrest and arraignment required exclusion of an inculpatory statement given during such interval. "The delay must be unnecessary; evidence that is prejudicial must be obtained; and the incriminating evidence must be reasonably related to the delay." Commonwealth v. Leroy Smith, 487 Pa. 626, 630, 410 A.2d 787, 789-790 (1980), quoting Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419, 420 (1974); Commonwealth v. Van Cliff, 483 Pa. 576, 587, 397 A.2d 1173, 1179, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979); Commonwealth v. Keith Smith, --- Pa.Super. ---, ---, 463 A.2d 1113, 1116 (1983); Commonwealth v. Miller, 293 Pa.Super. 281, 286, 438 A.2d 995, 997 (1981); Commonwealth v. Hadden, 265 Pa.Super. 112, 115, 401 A.2d 826, 827 (1979). See also: Commonwealth v. Jenkins, 500 Pa. 144, --- n. 2, 454 A.2d 1004, 1005 n. 2 (1982) (collecting cases). However, the only period relevant to a determination of whether there has been undue delay is the time between appellant's arrest and the giving of his initial incriminating statement. Commonwealth v. Bogan, 482 Pa. 151, 159, 393 A.2d 424, 428 (1978) (plurality opinion); Commonwealth v. Carter, 481 Pa. 495, 500, 393 A.2d 13, 16 (1978); Commonwealth v. Rowe, 459 Pa. 163, 168, 327 A.2d 358, 361 (1974); Commonwealth v. Boykin, 276 Pa.Super. 56, 62, 419 A.2d 92, 95 (1980). See: Commonwealth v. Keith Smith, supra --- Pa.Super. at ---, 463 A.2d at 1117. Moreover, the time devoted to transporting appellant to the Police Administration Building after his arrest at home must be excluded from the relevant period. See: Commonwealth v. Hitson, 482 Pa. 404, 407, 393 A.2d 1169, 1171 (1978) (plurality opinion); Commonwealth v. Riley, 284 Pa.Super. 280, 288-289, 425 A.2d 813, 817 (1981); Commonwealth v. Terebieniec, 268 Pa.Super. 511, 520, 408 A.2d 1120, 1124 (1979).

Only two and one-quarter hours had elapsed between appellant's arrest and his initial confession. Excluding the forty minutes devoted to transporting appellant to the Administration Building, the delay was approximately one and one-half hours. Under Futch and its progeny, this delay did not require the suppression of the ensuing confession. Although the reasons for this delay do not appear and, therefore, suggest that it was "unnecessary," it seems clear that appellant's first incriminating statement was not related to this delay, for appellant had been left alone to rest and was not interrogated during most of this period. See: Commonwealth v. Williams, 476 Pa. 344, 348, 382 A.2d 1202, 1204 (1978) (delay unrelated to confession where defendant interrogated for two hours and fifty-five minutes in four separate interviews out of a four and one-half hour period); Commonwealth v. Young, 460 Pa. 598, 600-601, 334 A.2d 252, 253 (1975) (delay unrelated to confession where defendant interrogated for one hour and twenty-five minutes during five hour period and otherwise left to rest, eat, or be processed); Commonwealth v. Hill, 267 Pa.Super. 264, 268, 406 A.2d 796, 798 (1979) (delay unrelated to confession where only half of four hour period of delay devoted to questioning). See also: Commonwealth v. Starks, 484 Pa. 399, 406-407, 399 A.2d 353, 356 (1979); Commonwealth v. Rowe, supra 459 Pa. at 169, 327 A.2d at 361.

The fact that the formal written statement in which appellant admitted to pulling the trigger of the murder weapon was not signed until 5:20 p.m., does not require a different result. The additional delay, explained in part by Pritchett's resting, eating a meal and conferring with his father, the need to resolve the conflict between appellant's statement and that of a co-defendant, and the use of the polygraph, ^[2] was not prejudicial. Appellant had been fully inculpated by his earlier statement in which he admitted being a knowing accomplice to a willful, premeditated killing, and the delay thereafter did not increase the degree of his guilt. See: Commonwealth v. James Smith, 480 Pa. 524, 391 A.2d 1009 (1978); Commonwealth v. Bridges, 475 Pa. 535, 381 A.2d 125 (1977); Commonwealth v. Leach, 455 Pa. 448, 317 A.2d 293 (1974); Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973). See also and compare: Commonwealth v. Van Cliff, supra (subsequent written confession obtained five and one-half hours after arrest not prejudicial when it merely reiterated earlier oral confession unrelated to delay); Commonwealth v. Carter, supra (second statement following polygraph examination, pointing out inaccuracies in statement given five hours previously was properly admitted based upon only brief delay between arrest and first inculpatory statement); Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975) (although investigation took twenty hours, incriminating statement given two and one-half hours after arrest, and later statements not additionally incriminating); Commonwealth v. Hill, supra (written statement, given fourteen or fifteen hours after arrest, merely elaborated upon earlier statement given approximately four hours and five minutes after arrest).

We conclude therefore, that appellant's inculpatory statements were not subject to suppression on grounds of unnecessary pre-arraignment delay and that a contrary argument would have been lacking in merit. It follows that trial counsel was not ineffective for failing to preserve the...