concurring.
I join the opinion of the Court insofar as it holds that appellant is entitled to a new trial because thé trial court’s instructions to the jury concerning the voluntariness of appellant’s confession were inadequate. To the extent, however, that the Court holds that appellant was entitled to a specific instruction that “unnecessary delay” between arrest and arraignment is a factor to be considered in determining whether the confession was voluntary, I disagree.
Prior to trial, appellant moved to suppress his confession on the grounds that it was involuntary and that it had been obtained as a result of unnecessary delay between arrest and preliminary arraignment. See, Pa.R. Crim.Pro. 130; Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The suppression court denied the motion. The issue of the voluntariness of the confession was again raised at trial, as permitted by Rule 323(j) of our Rules of Criminal Procedure. See, Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975). Prior to the jury being instructed by the court, appellant’s counsel submitted a series of points for charge concerning unnecessary delay between arrest and preliminary *398arraignment.1 The trial court denied these requested instructions on the ground that “unnecessary delay” is a question of law and therefore not within the jury’s province to decide. On the theory that “unnecessary delay” between arrest and preliminary arraignment is a relevant factor in assessing the voluntariness of a confession, this Court now holds that the trial court committed reversible error in ruling as it did. While I agree that the trial court erred, I cannot subscribe to the majority’s analysis in reaching that conclusion.
Implicit in the majority opinion is the conclusion that “unnecessary delay”, except when considered in the context of a pretrial Futeh claim, is a question of fact for the jury. While I agree with the Court that “[t]he question of ‘unnecessary delay’ is a question of law when used to advance an argument under Pa.R.Crim.P. 130 [formerly 118] and Commonwealth v. Futch, and the line of cases *399which followed,” Opinion of the Court, ante at p. 361, I am at a loss to understand why the question of “unnecessary delay” is transformed into a question of fact for the jury simply because a defendant chooses to avail himself of the right to challenge the validity of the confession at trial. In my view “unnecessary delay” is a question of law only, regardless of the nature of the claim a defendant is making.
The phrase “unnecessary delay”, at least for purposes of the law in this Commonwealth, derives from Rule 130 [formerly Rule 118] of our Rules of Criminal Procedure. The rule and the cases interpreting it, e. g., Commonwealth v. Futch, supra, represent an exercise of this Court’s supervisory powers designed to ensure that an accused is taken promptly before a magistrate for preliminary arraignment. Under Rule 323 a defendant wishing to suppress evidence allegedly obtained in violation of Rule 130 is free to challenge the admissibility of such evidence prior to trial. If the challenged evidence is found to be admissible at the suppression hearing the defendant is foreclosed from challenging its admissibility at trial; he may, nevertheless, contest the validity of such evidence despite its admission. Commonwealth v. Green, supra. Thus, while the issue of the voluntariness of a confession may be relitigated at trial under Rule 323(j), the question of the necessity of the delay, which relates only to the admissibility of a confession, may not be rechallenged at trial.
None of the cases relied upon by the majority for the proposition that appellant was entitled to be instructed on “unnecessary delay” supports that conclusion. All of the cases cited 2 were cases in which this Court, on appeal, was asked to determine whether a particular confession was voluntary or not as a matter of law; in none *400of the cases were we addressing the question presented in the case at bar. To be sure, the cases cited by the majority, see note 2, supra, include language that “unnecessary delay” is a factor to be considered in assessing the totality of the circumstances bearing upon an individual’s decision to confess.3 Given the context in which the language was employed, i. e., whether a confession was involuntary as a matter of law, it cannot be assumed that these decisions meant that “unnecessary delay” is a factual question upon which a jury should be instructed and allowed to decide in determining voluntariness.
Not only is the instruction not legally required, but in my view it would be unwise to instruct the jury as appellant here requested and the majority now requires. First, it is clear that if the jury is to be instructed on “unnecessary delay”, it will also have to be instructed as to what does not constitute “unnecessary delay”. See, e. g., Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417, 418 (1972), adhering approvingly to the guidelines laid down in Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574, 579 (1968) (Burger, J,, concurring). To give these added instructions seems to me to invite confusion, and to draw undue attention to one factor in the totality equation and away from the central issue of voluntariness. Second, instructing the jury that they may consider “unnecessary delay” as a factor in the totality of the circumstances implies that if the jury decides that the delay was not unnecessary, it should not consider the delay at all in assessing the voluntariness of the statement. But this would be unfair to the defendant, who is entitled to have the jury consider the length of time he was in police custody as a factor in voluntariness regardless of whether the delay prior to preliminary arraignment was necessary or not. See, e. g., Commonwealth v. *401Simms, 455 Pa. 599, 602-3, 317 A.2d 268 (1974) and cases cited therein.
Although I believe the trial court was correct in rejecting appellant’s requested points for charge, I am neverthless of the view that the court’s charge was inadequate. There is no question that a defendant who raises the issue of the voluntariness of his confession at trial is entitled to have the jury instructed on the various factors to be considered in the totality of circumstances bearing upon the voluntariness of the confession. One such factor is the length of time the defendant was in police custody prior to the giving of the challenged statement.4 See Commonwealth v. Simms, supra.5 In my view, appellant’s requested points for charge, while erroneous and properly denied as submitted, were sufficient to alert the trial court that he should mention the length of time the defendant was kept in police custody for interrogation as being one of the various factors involved in the totality of circumstances surrounding appellant’s confession. See Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969). For this reason, I join in the majority’s grant of a new trial.
. The requested instructions were as follows:
“14. There is a rule of law that you have to apply in this situation in accordance with the instructions of the Court, which provides, that upon arrest, the defendant is to be taken before a magistrate. The law states as follows:
“When a defendant has been arrested without a warrant, he shall be taken without unnecessary delay before the proper issuing authority where a Complaint shall be filed against him.
“15. In considering the evidence as to any claim of unlawful delay or unreasonable delay, any illegal delay is but one circumstance to be considered along with any other evidence bearing upon the question of the voluntary character of the admission.
“16. As to any claim of delay in arraignment that is in issue under the evidence, it is for the jury to determine as a question of fact as to whether there was any unnecessary delay. If the jury finds that delay in arraignment of the defendant was unnecessary then and in that event, it constitutes a circumstance that can be considered along with any other evidence bearing upon the question of the voluntary character of the admissions.
“17. If you find from the evidence that there was a noncompliance with the prompt arraignment section and that there was an unlawful or unnecessary delay, you have a right to consider that in determining the question as to whether any admissions statements were voluntary or involuntary. Of course, you take that into consideration with all the other evidence in the case.”
. Commonwealth v. Simms, 455 Pa. 599, 317 A.2d 265 (1974); Commonwealth v. Koch, 446 Pa. 469, 288 A.2d 791 (1972); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
. Obviously this Court is free to look at the facts presented at trial and determine as a matter of law that the facts constitute “unnecessary delay” within the meaning of Rule 130.
. The circumstances, including length of time in custody, surrounding a suspect’s detention in police custody after confession and prior to arraignment may also be relevant on the question of voluntariness of the confession. See Commonwealth v. Myers, 472 Pa. - — , 371 A.2d 1279 (1977).
. Others include age, intelligence, duration of questioning, physical and mental condition of accused, etc.