Commonwealth v. Abu-Ibn Hanifah Bey

341 A.2d 907, 462 Pa. 533, 1975 Pa. LEXIS 905

• Court: Supreme Court of Pennsylvania
• Decided: May 21, 1975
• Docket: 145 and 181
• Status: Published

Opinions

OPINION

NIX, Justice.

Appellant, Abu Ibn Hanifah Bey, also known as Nathaniel Miller, was convicted before a judge and jury of murder in the second degree, burglary, and aggravated robbery stemming from a robbery and shooting incident at a bar in Philadelphia. Following the denial of post-trial motions, appellant was sentenced to a term of imprisonment of 7% to 15 years on the murder bill, and to a consecutive 4 to: 8 year term on the robbery bill. Sentence was suspended on the burglary bill. This direct appeal followed.¹

The two grounds which appellant raises in support of his request for a new trial relate to the admission into evidence of his confession. First he contends that his confession should have been suppressed because it was the product of an illegal arrest. Second he claims that the confession should have been suppressed as the product of an unnecessary delay between arrest and arraignment in violation of Rule 118 (now Rule 130) of the Pennsylvania Rules of Criminal Procedure. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Because we agree with this latter contention, we need not discuss the legality of the arrest.

On May 5, 1972, appellant, in the company of four brothers named Shaw, was arrested at the Shaw home and taken to the Police Administration Building in connection with a robbery and shooting at a bar not far from their residence. At 5:10 P.M. appellant was placed alone in an interrogation room. Twenty minutes later a detective entered and, after warning appellant of his Miranda rights, proceeded to question him. Appellant was questioned at various intervals thereafter by this detective and, although appellant did not refuse to speak with the police, he steadfastly denied any knowledge of, or involvement in, the incident. At 10:12 P.M. appellant was confronted with a statement by one of the Shaw brothers implicating appellant. Thereupon appellant admitted participating in the robbery. Appellant was permitted to rest and during this period attempted to telephone relatives. He was also questioned concerning the identity of a third participant. At 4:30 A.M. the following morning, appellant made a formal statement which was signed at 6:27 A.M. Appellant was slated at 10:46 A.M. The record, is unclear as to the time of arraignment, but it was sometime after 10:46 A.M.

In a number of opinions since Commonwealth v. Futch, supra, this Court has set forth the rule that where evidence prejudicial to the accused is obtained during an unnecessary delay between arrest and preliminary arraignment and that evidence is reasonably related to that delay, then the evidence is to be suppressed. See Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419 (1974) and cases cited therein.

The Commonwealth, while not contesting that the evidence obtained was prejudicial, argues that the delay was not “unnecessary” because only five hours elapsed between the arrest and appellant’s first oral admission. The Commonwealth correctly concedes however that there is no arbitrarily prescribed length of time which constitutes an “unnecessary delay”. See Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975) (5¼ hour delay); Commonwealth v. Johnson, 458 Pa. 425, 327 A.2d 618 (1974) (4 hour delay). Moreover, the Commonwealth offers no reason for the five hour delay other than the officer’s desire to question appellant for “preliminary investigation.” Although this excuse might have had some validity had appellant indicated a willingness to provide information concerning the incident, see Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974) ², here the investigating officer testified at the suppression hearing that appellant claimed he knew nothing of the incident. Furthermore, the delay was not used for administrative procedures. Under these circumstances we conclude that “the Commonwealth delayed the arraignment . . . with the specific intention of obtaining [a] confession. Rule 118 was fashioned to prevent such procedure. See Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973).” Commonwealth v. Johnson, supra, 458 Pa. at 428, 327 A.2d at 619.

The Commonwealth also argues that because appellant confessed upon learning that another individual had implicated him, the confession was not reasonably related to the delay, citing Commonwealth v. Fogan, 449 , 296 A.2d 755 (1972). This argument was specifically rejected by this Court recently in Commonwealth v. Doamaral, 461 Pa. 517, 337 A.2d 273 (filed April 21, 1975). There this Court stated:

“Fogan is inapposite here; the Futch issue was not raised or considered in Fogan. . .

[I] t is true that appellant denied involvement in the incident until informed of the witness’ accusation, however, the fact that the accusation may have combined with the unnecessary delay to induce appellant’s confession does not mean that the confession is admissable [sic]. We did not say in Futch that the unnecessary delay must be the sole cause of the confession for the confession to be inadmissible. We said that all evidence obtained during an unnecessary delay, except that which has no reasonable relationship to the delay whatsoever, should be excluded. It cannot be said that the confession in the instant appeal had no relationship whatsoever to the twelve hour delay. The fact that the confession may have also been related to other events which occurred during the delay does not eliminate its relationship with the delay. Compare Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1974, filed March 18, 1975) (absence of unnecessary delay); Commonwealth v. Dreuitt, 457 Pa. 345, 321 A.2d 614 (1974) (no unnecessary delay prior to event causing confession).

In Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974), we held inadmissible on Futch grounds a confession made fourteen hours after arrest and immediately following confrontation with results of a polygraph test which appellant had ‘failed.’ In Cherry we said:

‘Since appellant was originally unwilling to admit his complicity in the crime, and did not do so until after he was told that he had failed the polygraph test, some twelve hours later, during which time he had been subjected to over six hours of questioning and a lengthy period of isolation, we are convinced that appellant would not have changed his mind were it not for the events which transpired during the delay.’ Id. at 204, 321 A.2d at 612.

Although the facts in this case are not identical to those in Cherry, the inculpatory statements here, like those in Cherry, were made during a period of unnecessary delay. Under these circumstances, we conclude that the inculpatory statements were reasonably related to the “unnecessary delay.” Id. at 523, 337 A.2d at 276.

See also Commonwealth v. Barilak, supra, where appellant confessed after 5% hours upon being informed that blood in her car matched that of the victim. Nevertheless, this Court concluded that the “more than five hour period constituted ‘an unreasonable delay’ within the meaning of Rule 118, and the incriminating statements made thereafter were reasonably related thereto.” Id. at 452, 333 A.2d at 861. Accordingly, we hold that appellant’s statements should have been suppressed.

Judgment reversed and a new trial is ordered.

EAGEN, J., files a dissenting opinion in which JONES, C. J., joins. O’BRIEN, J., concurs in the result. POMEROY, J., files a dissenting opinion in which JONES, C. J., joins.

1 . Jurisdiction in this Court for the appeal from the murder conviction exists pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17 P.S. § 211.-202(1) (Supp.1974). Appeals from the other convictions have been transferred from the Superior Court. See Commonwealth v. Williams, 455 Pa. 569, n. 2, 319 A.2d 419, n. 2 (1974).

2 . In Cherry this Court stated:

“While it may be permissible to delay the arraignment of an arrested individual if he initially indicates a willingness to cooperate, in order to obtain information from him about co-suspects or other evidence so that such co-suspects or evidence might be speedily located while still in the vicinity, no such grounds can be claimed in the instant case. Appellant was originally unwilling to say more than that he had been present at the scene of the crime. His confession did not come until after the fourteen-hour delay and was, in fact, produced by that delay. Accordingly, his confession should have been suppressed.” Commonwealth v. Cherry, supra at 205, 321 A.2d at 613.