Commonwealth v. Blagman

*438Concurring Opinion by

Mr. Justice Roberts :

I concur in the result. In my view, appellant has not properly preserved for appellate review the issue of an alleged violation of Pa. R. Crim. P. 118 (now 130).*

Although appellant’s initial suppression hearing was held before our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), his trial began almost five months after Futeh was decided. Defense counsel had ample opportunity to move before trial for a new suppression hearing. Commonwealth v. Johnson, 457 Pa. 554, 558 & n.4, 327 A.2d 632, 634-35 & n.4 (1974). However, it was not until trial was completed that appellant in post-trial motions asserted for the first time a claim under Rule 118.

In my judgment, appellant’s claim of unnecessary delay was not timely presented and thus may not be considered here. Commonwealth v. Johnson, 457 Pa. at 558, 327 A.2d at 635; Commonwealth v. Williams, 454 Pa. 261, 263, 311 A.2d 920, 921 (1973); Commonwealth v. Sasser, 453 Pa. 622, 623, 309 A.2d 352, 353 (1973) (per curiam); Pa. R. Crim. P. 323(b). See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741 (1972).

Mr. Chief Justice Jones, Mr. Justice O’Brien, Mr. Justice Nix and Mr. Justice Manderino join in this concurring opinion.

I also concur that in the-circumstances of this case appellant’s confession was not involuntary. See Culombe v. Connecticut, 367 U.S. 568, 601-02, 81 S. Ct. 1860, 1878-79 (1961). Compare Commonwealth v. Simms, 455 Pa. 599, 317 A.2d 265 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973).