Commonwealth v. Wayman
| Citation | 309 A.2d 784,454 Pa. 79 |
| Parties | COMMONWEALTH of Pennsylvania v. George WAYMAN, Appellant. |
| Decision Date | 03 October 1973 |
| Court | United States State Supreme Court of Pennsylvania |
Joseph T. McGraw, Public Defender, Peter G. Loftus Asst. Public Defender, Scranton, for appellant.
Paul R. Mazzoni, Dist. Atty., Scranton, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY NIX and MANDERINO, JJ.
On the afternoon of January 31, 1967, appellant, a 19 year old youth, after having learned from friends that he was wanted by the police, voluntarily surrendered to the Scranton Police Department. Appellant's action was motivated by the fact that he had been earlier advised that one Frank Smith, Jr., had been arrested for a series of burglaries, and had, shortly after being taken into custody, implicated appellant in the commission of these crimes. The following day (February 1, 1967) after having been detained and interrogated for over 24 hours, appellant signed a statement admitting his complicity in seven burglaries. Immediately thereafter, appellant was preliminarily arraigned.
On August 11, 1967, appellant pleaded guilty to one count of burglary (No. 20B), and was sentenced to 18 months imprisonment. On October 2, 1967, appellant proceeded to trial, before a jury, on the second burglary count (No. 7E), and was adjudged guilty. Prior to this trial, a timely filed motion to suppress the confession was denied. (At trial, this challenged confession was, over objection, introduced against appellant). Post-trial motions were denied, and appellant was sentenced to serve a term of 23 months imprisonment. On November 1, 1968, appellant pleaded guilty to the five remaining burglary charges then outstanding against him (Nos. 7A, B, C, D, and No. 10). Appellant was sentenced on each of these offenses to serve a term of imprisonment of one and one-half to four years, each sentence to run concurrently with those already being served.
An appeal, allowed as if timely filed, was taken to the Superior Court, 222 Pa.Super. 531, 295 A.2d 180, which affirmed in an opinionless per curiam order, with two judges dissenting. (Hoffman, J., filed a dissenting opinion, joined by Spaulding, J.). This Court granted allocatur, and we now reverse the conviction in No. 7E, and remand for an evidentiary hearing in Nos. 7A, B, C, D, 10, and 20B.
Appellant here argues, as he did in the Superior Court, that the 24 hour 'unnecessary delay' between his arrest and arraignment renders his confession, given only at the end of this period, inadmissible. [1] Pa.R.Crim.P. 116(a) (effective January 1, 1965, replaced by Pa.R.Crim.P. 118, 19 P.S. Appendix (effective May 1, 1970)); Commonwealth v. Dutton, Pa., 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Appellant also contends that the hearing court's erroneous refusal to suppress the confession was the primary motivation for appellant's subsequent pleas of guilty to the remaining charges. [2] Accordingly, appellant challenges the validity of these pleas. Cf. Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968); Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967).
It is now well settled that at the time of appellant's arrest (1967), all persons 'arrested with or without a warrant' were required to 'be taken without unnecessary delay before the proper issuing authority for a preliminary arraignment.' Pa.R.Crim.P. 116(a) (effective January 1, 1965); Dutton, supra. Where this mandate has gone unfulfilled by the Commonwealth, 'all evidence obtained during 'unnecessary delay' Except that which . . . has no reasonable relationship to the delay whatsoever' must be excluded. [3] Futch, supra [454 Pa. 84] at 394, 290 A.2d at 419 (emphasis added). See Dutton, supra; Tingle, supra. Our task on appeal, therefore, is to determine whether there was an 'unnecessary delay,' and if so, whether the evidence obtained is causally related to the delay. Our review of the instant record convinces us that both questions must be answered in the affirmative.
Here, the Commonwealth's own evidence, as well as the opinion of the trial court, indicates that appellant voluntarily surrendered himself to the Scranton police on the afternoon (approximately 3:00 P.M.) of January 31, 1967. Appellant was thereafter detained and interrogated for 24 hours, and at 3:00 P.M. on February 1, 1967, finally signed a statement admitting his complicity in seven separate burglaries. During this 24 hour period, appellant was returned to his home, in the custody of the police, where evidence (cash receipts) of one crime was obtained by the authorities.
The Commonwealth does not in any way seek to justify this delay, but rather asserts that as appellant was not 'threatened' or 'abused,' his confession represents a knowing and voluntary, and therefore valid, act. However, this argument misses the point--Pa.R.Crim.P. 116(a) (as well as its progeny Pa.R.Crim.P. 118 and 116) requires that all arrestees be preliminarily arraigned 'without unnecessary delay.' The Commonwealth has made no suggestion whatsoever that the instant delay was necessary. [4] Accordingly, we must conclude that the 24 hour delay between appellant's arrest and arraignment was 'unnecessary,' and hence violative of Rule 116(a). Dutton, supra; Tingle, supra; Futch, supra.
Nor can it be seriously suggested that the challenged confession was not 'reasonably related' to this 'unnecessary delay.' Futch, supra, 447 Pa. at 394--396, 290 A.2d at 419. By the Commonwealth's own concession, appellant, a 19 year-old youth with no prior police contact, did not 'confess' until 24 hours after arrest and repeated interrogation. [5] It was only then, after giving a written statement, that appellant was preliminarily arraigned. On these facts, '(w)e must conclude that the challenged statement here, as the evidence in Futch, supra, was 'reasonably related' to the 'unnecessary delay' and thus inadmissible.' Tingle, supra, 451 Pa. at 247, 301 A.2d at 704.
Having determined appellant's confession to be invalid, and erroneously admitted at his trial, we are now called upon to pass on appellant's contention that his guilty pleas to the six remaining burglary charges were primarily motivated by the illegally obtained confession. However, the record before us is insufficient to make such a determination. Accordingly, as no post-trial motions were filed by appellant prior to this appeal allowed as if timely filed, the record is remanded to the trial court for the filing of post-trial motions, with instructions, to the trial court, to conduct an evidentiary hearing. Cf. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Kelly, 436 Pa. 21, 258 A.2d 325 (1969).
The judgment of sentence in No. 7E is reversed and a new trial granted. The records in Nos. 7A, 7B, 7C, 7D, 10, and 20B are remanded to the trial court for the filing of post-trial motions, with instructions to hold an appropriate evidentiary hearing.
Two basic errors in today's decision compel my dissent. First, in entertaining petitioner's claim that his confession is inadmissible under Futch and Dutton, the majority departs from the rules governing issues presentable on appeals Nunc pro tunc which we laid down in Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970). Second, in holding that guilty pleas which follow an inadmissible confession will be invalidated if they were primarily motivated by the confession, the Court appears to overrule, Sub silentio, without benefit of briefs or argument on the question, a large part of our still recent decision in Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970). I believe the trial court was correct and that its judgments of sentence should be affirmed without a remand.
In Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), we promulgated a rule excluding from evidence confessions extracted during and causally related to a period of unnecessary delay prior to arraignment. Since the filing of briefs in the present case, Futch has been made retroactive (over my dissenting opinion joined by Chief Justice Jones and Mr. Justice Eagen) to January 1, 1965, the effective date of former Pennsylvania Rule of Criminal Procedure 116a. Commonwealth v. Dutton, Pa., 307 A.2d 238 (1973). This rule, requiring prompt arraignment of all persons arrested, was in effect at the time of appellant's arrest and confession. However, it does not follow that he may avail himself of the Futch exclusionary rule on this appeal Nunc pro tunc.
In Commonwealth v. Faison, supra, we held that an appellant whose appeal is taken Nunc pro tunc can raise only those issues properly preserved at trial, and those issues involving alleged deprivations of constitutional rights subsequently announced but retroactively applied. Wayman did not preserve an 'unnecessary delay' issue at trial; indeed, he never once mentioned it. [1] As to the second category of issues, while it is true that Futch is a subsequently announced, retroactively applied rule, it is not a Constitutionally based rule. Rather, it was promulgated in the exercise of our supervisory powers, paralleling the McNabb-Mallory rule in the federal courts. [2]
The reason that subsequently announced but retroactively applied Constitutional rights are available on a direct appeal Nunc pro tunc is that such issues can be made the subject of a PCHA petition, and it is inefficient to require two proceedings where one would suffice. PCHA proceedings however, are limited to issues of constitutional dimension, [3] and Futch would...
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