Judge, concurring:
While I agree with the result reached by the majority, I write separately to express my disagreement with the majority's reliance on Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). (See Maj. Opinion at p. 104).
Although the six-hour rule enunciated in Davenport may not have been given a formal burial, the notice of its death was set forth in Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980) (Mr. Justice Larsen, dissenting opinion, joined by Mr. Justice Flaherty), rearg. denied, February 18, 1982; Commonwealth v. Bennett, 498 Pa. 656, 450 A.2d 970 (1982) (Mr. Justice Flaherty, concurring opinion, joined by Mr. Justice Hutchinson; Mr. Justice McDermott, concurring opinion); and Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982) (Mr. Justice McDermott, concurring opinion).
*107In Commonwealth v. Blady, supra, the supreme court by Per Curiam Order affirmed the trial court’s suppression of a confession where the defendant was arraigned six hours and ten minutes after his arrest. I note that in Blady, three of the four Justices who made up the majority are no longer on the court.
Mr. Justice Larsen in his dissenting opinion, which was joined by Mr. Justice Flaherty, wrote as follows:
Unlike the majority, I am not satisfied with the jurisprudential soundness of the Davenport approach; this approach is the quintessential illustration of mechanical jurisprudence.¹ While the rote application of the Davenport formula does achieve its desired result of ease of application and avoidance of troublesome complexities, a clock-watching ritual should not be substituted for scrutiny of the record, analysis of the evidence and flexible application of standards of review designed to accommodate conflicting interests. The goals of efficiency and ease of administration are laudable ones indeed, and I do not discount their importance. However, these goals should not be exalted at the expense of justice. (Footnote omitted).
Given the time of arrest — 5:20 p.m. — and the time of arraignment — shortly after 11:30 p.m. — the period of delay between arrest and arraignment was approximately six hours and ten minutes. For the sake of ten minutes, the majority affirms the suppression of a confession given only three hours after the arrest (at 8:40 p.m.). I dissent. This Court should throw away the stopwatch and pick up the scales of justice.
Id., 492 Pa. at 285-287, 424 A.2d at 864-65.
In Commonwealth v. Bennett, supra, the supreme court affirmed an order of this court, Commonwealth v. Bennett, 287 Pa.Super. 485, 430 A.2d 994 (1981), wherein we held that a statement obtained from an accused in violation of the six-hour rule and therefore inadmissible in the Common*108wealth’s case-in-chief, may nevertheless be used to impeach the accused’s trial testimony.
The trial court in Bennett awarded the defendant a new trial for the reason that defendant’s voluntary statement should have been suppressed where he was arraigned six hours and two minutes after his arrest. The defendant also argued in his post trial motions, and the trial court agreed, that he had been prejudiced by the trial court’s initial refusal to suppress his statement because his decision not to testify had been based on his fear that the Commonwealth would use the statement to impeach his credibility. The trial court concluded that statements inadmissible under Davenport could not be used to impeach the defendant’s trial testimony.
Justice Flaherty, in a concurring opinion, in which Justice Hutchinson concurred, wrote:
Our constitutions guarantee every individual the right to know the nature and cause of the accusations against him and the right to be free from any unnecessary abridgement of his liberty. To insure these rights, our rules require that an individual who is arrested be afforded a preliminary arraignment before a judicial officer without unnecessary delay. See Pa.R.Crim.P. 122, 123, 130, 140. This Court adopted a prophylactic rule: Absent exigent circumstances, if the accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment is inadmissible at trial. Commonwealth v. Davenport, supra. Notwithstanding the goals of per se rules — motivation of law enforcement officials to conduct criminal investigations fairly, responsibly and, in cases such as the instant one, promptly and ease of judicial administration — “stop watch justice” exacts a considerable toll on society when one who is actually guilty of the crimes charged escapes conviction and punishment for his guilty conduct because of what is termed in lay parlance, a “technicality”. These goals, though laudable, “should not be exalted at the expense of *109justice.” Commonwealth v. Blady, 492 Pa. 285, 286, 424 A.2d 864 (1980) (Mr. Justice Larsen, dissenting).
Due to the inherent inexactitude of human experience, it is not surprising that an accused should assert inadmissibility of a statement due to a mere two minute delay in the arraignment procedure. Such a delay is certainly properly characterized as de minimis non-compliance with Davenport. Instantly, however, the trial court rejected the Commonwealth’s suggestion it should overlook such a de minimis infraction. In my view, in application of the ancient maxim “Lex non curat de minimis,” Hob. 88, a delay of more than six hours should not per se render any pre-arraignment statement inadmissible; rather, I would place on the Commonwealth the burden of proving that the delay was not unnecessary when the delay between arrest and arraignment exceeds six hours. “A clock-watching ritual should not be substituted for scrutiny of the record, analysis of the evidence and flexible application of standards of review designed to acco-modate conflicting interests.” Commonwealth v. Blady, supra. (Mr. Justice Larsen, dissenting).
Id., 498 Pa. at 657-658, 450 A.2d at 971.
In a separate concurring opinion, Mr. Justice McDermott with characteristic cogency, denounced the six-hour rule as follows:
By a “per curiam affirmance,” we are overlooking an opportunity to clarify some very disturbing issues.
By affirming the opinion of the Superior Court, we are reasserting the iron rule of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), a rule that would suppress an otherwise constitutionally-obtained statement, because the police were two minutes late in bringing a defendant before a court.
By affirming the Superior Court, we are narrowing the application of Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) and affirming that statements obtained *110in violation of Davenport may be used to impeach a defendant who offers his testimony at trial. We should go further and ourselves say that the iron six-hour rule of Davenport has created more mischief than it ever cured, and that, in fact, it cannot even cure the mischief to which it was addressed. The Davenport rule had shielded the guilty for no reason relevant to the individual circumstances of their cases. A prophylactic rule, such as the six-hour rule, is a classic of technicality. Classic because it applies to all circumstances, no matter what distinctions of justice may inhere in the facts of a given case. It answers a drum sounding on a different field. We have invoked the rule to prevent one form of illegality, an illegality that can be monitored without subjecting our judicial system to the sorest criticism, when the guilty go free for no reason except an unnecessary and inapplicable rule.
Id., 498 Pa. at 659-660, 450 A.2d at 972. See also concurring opinions of Mr. Justice McDermott in Commonwealth v. Jenkins, supra; and Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983).
Clearly, Justices Larsen, Flaherty, McDermott and Hutchinson have all denounced the six-hour rule as a per se rule of exclusion. What is not so clear is what they might all agree would be a satisfactory and just alternative.
I favor the approach taken by Justices Flaherty and Hutchinson, i.e., when the delay between arrest and arraignment exceeds six hours, the Commonwealth has the burden of proving that the delay was not unnecessary.
In the case sub judice, I do not believe the Commonwealth met that burden, especially in view of the fact that there was no explanation whatsoever for not arraigning the appellant at 9 a.m. instead of 12 noon.
Thus, I would concur in the result reached by the majority and at the same time acknowledge the not-too-early demise of the infamous six-hour rule.