Commonwealth v. Milton

ROBERTS, Justice

(concurring and dissenting).

The majority concedes that Wormsley’s statement was obtained by the Commonwealth during a period of unnecessary delay between arrest and arraignment, in violation of the command of Pa.R.Crim.P. 116 (now renumbered as Rule 122). I cannot agree that the statement had “no reasonable relationship to the delay whatsoever.” Commonwealth v. Futch, 447 Pa. 389, 394, 290 A.2d 417, 419 (1972); Commonwealth v. Dixon, 454 Pa. 444, 445, 311 A.2d 613, 614 (1973); Commonwealth v. Wayman, 454 Pa. 79, 83, 309 A.2d 784, 787 (1973); Commonwealth v. Dutton, 453 Pa. 547, 550, 307 A.2d 238, 240 (1973); Commonwealth v. Tingle, 451 Pa. 241, 244, 301 A.2d 701, 702 (1973). Therefore I must conclude that the statement was properly suppressed. Commonwealth v. Futch, supra; Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); see Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973).

There can be no doubt that the delay in arraignment here was unnecessary, for the Commonwealth admits *543that the only reason for the delay was the desire to extract a confession.1 Delay in arraignment for the sole purpose of obtaining incriminatory statements is always unnecessary. Commonwealth v. Barilak, supra; Commonwealth v. Johnson, supra; Commonwealth v. Cherry, supra; Commonwealth v. Williams, supra; Commonwealth v. Dixon, supra; Commonwealth v. Tingle, supra.2

The majority, however, finds no “nexus” between the delay and the making of the inculpatory statement. While it is true that a defendant must show “a nexus between the delay and the challenged evidence,” Commonwealth v. Tingle, supra, this requires only a showing that the challenged evidence was obtained during a period of unnecessary delay rather than a period of necessary delay which was followed by an unrelated period of unnecessary delay. Compare Commonwealth v. Rowe, 459 Pa. *544163, 327 A.2d 358, 361-62 (1974) with Commonwealth v. Tingle, supra, 451 Pa. at 246-47, 301 A.2d 703-04 (1973). In this case, the nexus between the unnecessary-delay and the challenged statement was indubitably established by the testimony of the Commonwealth’s own witnesses.

As one commentator has recently written:

“In [Commonwealth v. Wayman] it was not the length of time between arrest and confession that established a ‘reasonable relationship’ between the evidence and the delay. Rather, the relationship was established because delay had been manufactured by police to allow opportunity to elicit a confession. Therefore, to argue that the length of the delay itself should in any way be relevant to the issue at hand is to ignore the fact that the length of time between arrest and confession is determined merely by the power of the accused to withstand interrogation or by his inability to satisfy his interrogators. It is hence absurd to suggest that the strength of the relationship between the evidence given and the ‘unnecessary delay’ is dependent upon the number of hours the accused can resist questioning. On the contrary, since the evidence follows the interrogation during ‘unnecessary delay,’ and the delay in turn is created to permit such questioning, once the interrogation is begun the relationship is established independent of how long the delay lasts. It is the action of the police, therefore, that establishes the connection between unnecessary delay and the evidence obtained.”

Comment, Admissibility of Confessions Obtained Between Arrest and Arraignment: Federal and Pennsylvania Approaches, 79 Dick'.L.Rev. 309, 347 (1975).

Moreover, it is clear from the suppression court’s discussion of the legal standard to be applied that the court found the delay was a cause of the statement. Surely a defendant is not required to exclude all causal factors *545other than delay, for we have held that all evidence obtained during a period of unnecessary delay must be excluded unless it “has no reasonable relationship to the delay whatsoever.” Commonwealth v. Futch, supra, 447 Pa. at 394, 290 A.2d at 419; Commonwealth v. Dixon, supra, 454 Pa. at 445, 311 A.2d at 614; Commonwealth v. Wayman, supra, 454 Pa. at 83, 309 A.2d at 787; Commonwealth v. Dutton, supra, 453 Pa. at 550, 307 A.2d at 240; Commonwealth v. Tingle, supra, 451 Pa. at 244, 301 A.2d at 702. Thus, we have repeatedly held that precipitation of an incriminatory statement by the results of a polygraph test does not destroy the nexus between the delay and the statement so precipitated. Commonwealth v. Barilak, supra (polygraph test combined with confrontation with other evidence of guilt); Commonwealth v. Sanders, supra; Commonwealth v. Cherry, supra; Commonwealth v. Dixon, supra. Moreover, we have considered precisely the type of situation here and held that confrontation with an accusation by a co-defendant is likewise insufficient to destroy the nexus between unnecessary delay and a statement obtained during that delay. Commonwealth v. Johnson, supra; see Commonwealth v. Doamaral,-Pa.-, 327 A.2d 273 (1975) (confrontation with accusatory statement by witness).

I am unable to see any basis for disturbing the finding by the suppression court that the required nexus between the unnecessary delay and the challenged statement was present. I would therefore affirm the order suppressing Wormsley’s statement.

Because I agree that Milton’s statement was not obtained during a period of unnecessary delay, I agree that the order suppressing his statement must be reversed.

MANDERINO, J., joins in this concurring and dissenting opinion.

. The following colloquy between the court and the attorney for the Commonwealth occurred during closing argument at the suppression hearing:

“THE COURT: Let me ask you one other question. Wasn’t the sole purpose of the detention in this case directed solely and exclusively at obtaining a confession from Mr. Wormsley? Was there any other reason for the delay between the time of arrest and taking him to arraignment?
“MR. JOHNSON: Under the present state of the record, Your Honor, there was not.”

Later in the argument, the point was further discussed in the following exchange:

“MR. JOHNSON: The purpose of any delay, if one existed, Your Honor, was to conduct a further investigation of this case. At this point these police—
“THE COURT: What other investigation did they conduct now, outside of the taking of a statement from Wormsley?
“MR. JOHNSON: The Commonwealth does not submit that they did conduct any outside of that, Your Honor.”

. The Commonwealth’s reliance on the opinion announcing the judgment in Commonwealth v. Blagman, -— Pa. ——, 326 A.2d 296 (1974), is entirely misplaced because that opinion represented the views of only two members of this Court. The holding of Blagman is to be found in the concurring opinion, id. at-, 326 A.2d at 300, which was joined by five members of this Court and rested on the conclusion that the claim of unnecessary delay had not been preserved for appellate review.