Commonwealth v. Smith
Commonwealth v. Smith
Dissenting Opinion
(dissenting).
I dissent from the majority’s holding that appellee’s second and third statements were validly obtained under Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Pa.R.Crim.P. 130. Appellee was arrested at 9:40 p.m., May 30, 1973. He gave an inculpatory statement at 12:05 a.m., May 31, 1973. He should have been arraigned before a neutral magistrate and warned of his constitutional rights.
Rather than following the procedure mandated by this Court in both case law and rules of criminal procedure,
. Pa.R.Crim.P. 130.
. In one or two judicial districts it has become the police practice to log the exact time of even the least important event during in-custody interrogation, but regrettably almost always to make the last entry, “Time unspecified — preliminary arraignment.”
When the accused has been arrested without a warrant, a delay prohibited by Rule 130 may render the arrest unlawful and any evidence which is the fruit of the arrest inadmissible. In Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1974) (Powell, J.), the Supreme Court of the United States held that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest.” ■ Any restraint on liberty after the police could have taken the accused to a magistrate for a determination of probable cause is a violation of the Fourth Amendment and any
Opinion of the Court
OPINION OF THE COURT
This appeal by the Commonwealth raises the question whether the lower court erred in suppressing three incriminating statements made by Richard Smith following his arrest in May, 1973. The Commonwealth intended to use those statements in the prosecution of Smith for murder and several related offenses.
In Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973), we emphasized that “Futch did not, and we do not here, establish a per se rule that all evidence obtained during an unnecessary delay be excluded. It is only upon the defendant’s showing of prejudice from the
At the suppression hearing, the following timetable of critical events was established for the period following arrest:
Time Event
9:40 P.M. (on May 30,1973) - Defendant arrested.
10:40 P.M. - Defendant arrives at Homicide Headquarters.
11:06 P.M. - Defendant warned of his constitutional rights.
11:13 P.M. to 12:05 A.M. (on May 31,1973) - Defendant gives statement in which he admits shooting of one Dennis Dorsey.
2:25 A.M. to 2:40 A.M. - Defendant interviewed concerning alleged discrepancies between his story of the shooting and physical evidence at the scene of the crime.
2:50 A.M. to 3:45 A.M. - Defendant gives a second statement in which he clears up the discrepancies.
4:35 A.M. to 6:10 A.M. - Defendant gives formal typewritten statement.
11:25 A.M. - Defendant taken to Central Cell Room for administrative processing.
Time unspecified Preliminary arraignment.
From this chronology it is apparent that the defendant first implicated himself in the shooting within approximately one and one-half hours after his arrest and during his first period of interrogation. These facts are
The present case, like those above, involves a situation where the inculpatory statement is simply not “reasonably related” to any delay in arraignment. The mere fact that there was an elapsed time of not less than fourteen hours between arrest and arraignment is irrelevant to the issue before us since most of that time followed Smith’s initial incriminating statement. Futch, supra, 447 Pa. at 393, 290 A.2d at 419; Rowe, supra, 459 Pa. at 168, 327 A.2d at 361. See also United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1940); Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974). That initial state
Order reversed.
. Two appeals were taken by the Commonwealth: one, concerning the murder charge, was taken directly to this Court; the other, concerning the remaining charges, was taken to the Superior Court and by it transferred to this Court in order that the two appeals might be heard together. The transfer was proper since the two appeals arose out of the same factual context and involved the same legal issue. See Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. V, § 503(c), 17 P.S. § 211.503(c) (Supp. 1975-76).
. Appellee has filed a motion to quash the Commonwealth’s appeals on three grounds stated in a purely conclusory fashion: (1) that the suppression order is non-appealable because it does not raise a pure question of law, but involves questions of both law and fact; (2) that the order will not have the effect of terminating the prosecution; (3) that the order will not substantially handicap the Commonwealth in its prosecution. The Commonwealth in its answer has represented that in fact it will be substantially handicapped in proving its case in that “a substantial part of its remaining evidence consists of the testimony of appellee’s common-law wife and the children [of appellee].” Under these circumstances, we will deny the motion to quash and permit the Commonwealth’s appeal. Commonwealth v. McDade, 462 Pa. 416 n. 1, 341 A.2d 450, 451 n. 1 (1975); Commonwealth v. Wormsley, 461 Pa. 538 n. 1, 337 A.2d 282, 284 n. 1 (1975); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). Our decisions in McDade and Wormsley also stand for the proposition that orders of suppression based on so-called Futch grounds, see Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), as was the order here challenged, are appealable by the Commonwealth as presenting questions of law.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant, v. Richard SMITH (Two Cases)
- Cited By
- 11 cases
- Status
- Published