Commonwealth v. Gilmore , 464 Pa. 464 ( 1975 )

OPINION

JONES, Chief Justice.

Appellant, William Gilmore, was convicted by a jury of murder in the first degree. On March 20, 1972, this Court affirmed his conviction. Commonwealth v. Gilmore, 447 Pa. 21, 288 A.2d 757 (1972). Subsequently, appellant filed a petition for relief under the Post Conviction Hearing Act. Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. After a hearing relief was denied and appellant has again appealed.¹

In this appeal, appellant asserts two grounds for reversal of the order of the lower court. He first argues that he was denied effective assistance of counsel at trial by counsel’s failure to raise unnecessary delay in arraignment as a ground for the suppression of appellant’s confession. Pa.R.Crim.P. 130;² Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Appellant next maintains that he is entitled to a new trial because of the introduction of his confession obtained in violation of the same Rule 130. We have considered these two arguments, find them meritless and affirm.

In Commonwealth v. Wayman, 454 Pa. 79, 82 n. 1, 309 A.2d 784, 786 n. 1 (1973), a majority of this Court held that a motion to suppress a confession on the grounds of involuntariness was sufficient to preserve the issue of erroneous introduction of the confession due to unnecessary delay in arraignment after arrest without warrant. Today, however, this Court has abandoned Wayman in favor of the more traditional appellate procedure which requires the preservation of the specific argument in support of the ground for reversal. Commonwealth v. Mitchell, 1975, 464 Pa. 117, 346 A.2d 48. Under that traditional procedure, “appellate courts will not review issues and arguments not raised in the court below.” Commonwealth ex rel. Bell v. Rundle, 420 Pa. 127, 131, 216 A.2d 57, 60, cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966), quoted in Commonwealth v. Wayman, 454 Pa. at 87 n. 1, 309 A.2d at 789 n. 1 (dissenting opinion) (emphasis added). To allow appellant to raise such arguments on collateral attack “would virtually emasculate Section 4(a) of the PCHA, defeat its very objective, and permit constant and repetitive relitigation issues already finally decided on their merits.” Commonwealth v. Slavik, 449 Pa. 424, 431, 297 A.2d 920, 924 (1972), quoted in Commonwealth v. Wayman, 454 Pa. at 87-88 n. 1, 309 A.2d at 789 n. 1 (dissenting opinion). Having failed to raise the issue of unnecessary delay in his motion to suppress his confession, appellant has placed the issue beyond appellate review either on direct or collateral attack. Pa.R.Crim.P. 323(b); Post Conviction Hearing Act, supra, § 4(b), 19 P.S. § 1180-4(b); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant’s claim of ineffective assistance of trial counsel is founded on counsel’s failure to raise the issue of unnecessary delay in the pre-trial motion to suppress. Of course, if his counsel’s conduct amounted to ineffective assistance, no waiver of that issue, as discussed previously, would have occurred. Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973).

Before our decision in Commonwealth v. Futch, supra, violations of Rule 130 were considered only in combination with other factors which would establish involuntariness of the confession. Commonwealth v. Koch, 446 Pa. 469, 474-75, 288 A.2d 791, 794 (1972), and cases cited thereat; Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). Therefore, to determine whether counsel’s conduct was so ineffective as to demand reversal, we must consider whether the original facts asserted, together with the additional factor of unnecessary delay, would have resulted in the suppression of appellant’s confession under the totality of the circumstances test.

Here, appellant was arrested on April 27, 1969, at 8:30 p. m. and immediately given his Miranda warnings, which were repeated to him before questioning began at 12:25 a. m. He was questioned for approximately one-half hour, denied any involvement and agreed to take a polygraph exam, after which he was again questioned for one-half hour. Thereafter he was left alone until 4:20 when he ate a meal provided by the police. After eating, he was read his Miranda rights for a third time and advised of his co-defendant’s statement implicating appellant. At this point appellant orally confessed. The oral confession was completed some time prior to 7:00 a. m. It was then reduced to typewritten form by 9:00 a. m.

At the suppression hearing, appellant, through his counsel, alleged that his confession was involuntary because the police had threatened him during questioning although appellant made no allegations of lengthy continuous questioning or physical abuse.

In Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1974), the appellant raised the issue of ineffective assistance of counsel for failure to file a motion to suppress his confession on the grounds of involuntariness. The confession followed an intensive interrogation conducted over a period of ten to twelve hours. We held that counsel had not been ineffective, reasoning that a lengthy period of interrogation “would be insufficient without more to establish that appellant’s . . . statements were not freely given.” Commonwealth v. Boyd, 461 Pa. at 32, 334 A.2d at 617-18. Since the confession was not suppressible, any decision by counsel to file a motion to suppress would have been futile.

Implicit in the Boyd decision is that the prolonged confession, in combination with the simultaneous delay in arraignment, was also insufficient to establish involuntariness. We have reached a similar conclusion in the present case. Under the totality of the circumstances test the unnecessary delay in arraignment, in combination with the unsubstantiated threatening language of the police, is insufficient to demonstrate involuntariness. See generally Commonwealth v. Koch, 446 Pa. at 474, 288 A.2d at 793.

Since the addition of the factor of unnecessary delay would not have resulted in the suppression of appellant’s confession, counsel’s failure to assert the delay was harmless to appellant’s cause.

Order affirmed.

NIX, J., did not participate in the consideration or decision of this case. EAGEN, O’BRIEN and POMEROY, JJ„ concur in the result. ROBERTS, J., filed a dissenting opinion. MANDERINO, J., filed a dissenting opinion.

1 . Jurisdiction is grounded on the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 11, 19 P.S. § 1180-11, and the Appellate Court Jurisdiction Act of 1970, P.L. 673, No. 223, Art. II, § 202, 17 P.S. § 211.202.

2 . Rule 130:

“When a defendant has been arrested without a warrant in a court case, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him and he shall be given an immediate preliminary arraignment.” (Effective January 1,1974.)

At the time of appellant’s arrest, the applicable rule was Pa.R. Crim.P. 118, which in substance was identical to the present rule.