Commonwealth v. Hitson , 482 Pa. 404 ( 1978 )

OPINION

LARSEN, Justice.

Appellant was convicted in a nonjury trial of voluntary manslaughter and possession of instruments of crime. Appellant appealed the judgment of sentence on the voluntary manslaughter conviction to this Court. The judgment of sentence on the possession of instruments of crime conviction was appealed to the Superior Court, which certified that appeal to this Court.

Appellant argues that the suppression court erred in not suppressing an inculpatory statement given by appellant to police. Appellant contends that the statement, given eight hours after he arrived at the police station, was the product of an unnecessary delay between arrest and arraignment and therefore, should be suppressed. Appellant claims that the admission of this statement into evidence violated Pennsylvania Rule of Criminal Procedure 130¹ and our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) wherein we held that evidence obtained during and reasonably related to an “unnecessary delay” between arrest and arraignment must be excluded.²

Subsequent to our decision in Futch, we held that in determining whether a defendant’s incriminating statement was the product of an “unnecessary delay”, we must examine the time which elapsed between defendant’s arrest and his statement. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974).

In reviewing the suppression court’s determination, we will consider only the evidence of the Commonwealth and the uncontradicted evidence of appellant. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). The record reveals that appellant was arrested at 5:30 a. m. on August 20, 1975. He arrived at the Police Administration Building at 5:55 a. m. and at 6:00 a. m., the police warned appellant of his constitutional rights and of the charges against him. The police questioned appellant between 6:00 a. m. and 9:10 a. m. and during this interrogation, appellant made statements indicating that he did not shoot Earl Blake. To verify this and with appellant’s consent, a polygraph examination was conducted from 9:10 a. m. to 1:30 p. m. At 1:30 p. m., appellant was informed that he failed the polygraph examination. Appellant was rewarned of his constitutional rights and at 1:55 p. m., appellant admitted shooting Earl Blake. Between 2:10 p. m. and 2:40 p. m., appellant gave a written statement. He was subsequently arraigned.

The period of time which we are concerned with is the eight hour period between 5:55 a. m. (the time of appellant’s arrival at the Police Administration Building) and 1:55 p. m. (the time that appellant incriminated himself). Commonwealth v. Coley, 466 Pa. 53, 351 A.2d 617 (1976). During the eight hour delay, there was a period of four hours and twenty minutes during which the polygraph examination was administered. Since the polygraph examination was administered to verify the statements that appellant made during the first interrogation session (which indicated that he did not shoot Earl Blake), this delay was a “necessary step in the police process” and hence does not constitute unnecessary delay. Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975). Excluding this four hour and twenty minute period, the length of the delay from the time that appellant arrived at the police station to the time that appellant gave his first incriminating statement was three hours and forty minutes — this is not an “unnecessary delay” under Futch³

Judgments of sentence affirmed.

ROBERTS, J., filed a concurring opinion in which NIX, J., joined. POMEROY, J., filed a concurring opinion. O’BRIEN, J., filed a dissenting opinion in which MANDERINO, J., joined.

1 . Rule 130 states:

“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 immediate preliminary arraignment.”

2 . The “six hour rule” enunciated in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) is not applicable here because appellant was'arrested prior to May 16, 1977.

3 . Appellant also asserts that his waiver of his Miranda rights was involuntary and that his inculpatory statement should have been disregarded by the trial court in arriving at a verdict because of factual inconsistencies. These contentions are without merit. Appellant finally alleges that he was arrested without probable cause. Because this issue was not properly raised in the lower court, it has been waived.