COMMONWEALTH of Pennsylvania, Appellee, v. John PEREZ, Appellant.
Superior Court of Pennsylvania.
Submitted March 13, 2000. Filed Sept. 26, 2000.
759 A.2d 873
Jurisdiction relinquished.
Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.
BEFORE: JOHNSON, TODD and HESTER, JJ.
TODD, J.:
¶ 1 John Perez appeals the Judgment of Sentence entered by the Philadelphia County Court of Common Pleas on April 24, 1998.1 Following a jury trial, Perez was convicted of three counts of robbery2 and other related offenses3 and was sentenced to eight to twenty years in prison. On appeal, Perez argues that the trial court, by the Honorable Judge Edward J. Bradley, erred in denying his motion to suppress statements that he made to police on the basis that the statements were not obtained within six hours of his arrest.4 For the reasons set forth below, we affirm the trial court‘s judgment of sentence.
¶ 2 In reviewing a trial court‘s denial of a motion to suppress, this Court must determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Brundidge, 533 Pa. 167, 170, 620 A.2d 1115, 1116 (1993). In making this determination, we must consider the Commonwealth‘s evidence and so much of the evidence of Perez as remains uncontradicted when fairly read in the context of the record as a whole. Id.
¶ 3 The record supports the following recitation of facts.5 At approximately 4:30 p.m. on November 24, 1996, Griffin‘s Deli in Philadelphia was robbed at gunpoint by three men. Based on information provided by the victims and a videotape of the robbery, police circulated a description of the suspects. The police also obtained a description of the car in which the suspects were seen fleeing, a lime green Chevy Monte Carlo. At approximately 6:15 p.m. that same day, the Oasis Pizzeria, also in Philadelphia, was robbed by three men who matched the description of the men involved in the earlier deli robbery and who also were seen fleeing the scene in a green Chevy Monte Carlo. At approximately 6:20 p.m., police stopped a green Chevy Monte Carlo containing two men who matched the description of those involved in the two robberies. One of these men was later identified as Perez. At approximately 6:30 p.m., the men were arrested and taken into custody.
¶ 4 At approximately 11:15 p.m., after conducting an investigation of the robberies, Detective George Fetters sat down to interview Perez regarding the robberies. At the time of his arrest, Perez had told Detective Fetters that his name was John Presberry and that his birthdate was November 23, 1978. Perez also provided Detective Fetters with an address and telephone number, and the name of his aunt, Gladys Berrios, with whom he was living. At 11:42 p.m., Detective Fetters checked the name John Presberry in the police computer to determine whether there had been any prior arrests. In doing so, the
¶ 5 When provided with Perez‘s correct date of birth, Detective Fetters realized that Perez was a juvenile, and at 12:15 a.m. on November 25, 1996, another detective, Detective Harkins, telephoned Berrios, who refused to come to the precinct, but gave the detectives permission to speak to Perez.6 By approximately 12:45 a.m., Perez was given his Miranda warnings and agreed to make a statement. Perez then confessed his involvement in both of the robberies.
¶ 6 Rule 123 (formerly Rule 122) of the
¶ 7 In order to ensure prompt preliminary arraignment following arrest, our Supreme Court has held that prejudicial evidence obtained during unnecessary delay between arrest and arraignment is inadmissible at trial, unless such evidence has no relationship to the delay. Commonwealth v. Futch, 447 Pa. 389, 393-94, 290 A.2d 417, 419 (1972).7 In defining what constitutes “reasonable delay“, the Court explained:
Necessary delay can reasonably relate to time to administratively process an accused with booking, fingerprinting and other steps and sometimes even to make same [sic] limited preliminary investigation into his connection with the crime for which he was arrested, especially when it is directed to possible exculpation of the one arrested.
Id. at 392, 290 A.2d at 418 (citing Adams v. United States, 399 F.2d 574, 579 (D.C.Cir. 1968) (concurring opinion)).
¶ 8 However, the flexible standard of Futch proved difficult for law enforcement officers to apply, and in Commonwealth v. Davenport, 471 Pa. 278, 286-87, 370 A.2d 301, 306 (1977), the Pennsylvania Supreme Court established a rule which provided that when an accused is not arraigned within six hours of arrest, any statements obtained after arrest but before arraignment are inadmissible at trial.
¶ 9 The Davenport rule was later modified by the Court in Commonwealth v. Duncan, supra, in which the Court held that statements which are obtained within six hours after arrest are admissible even when arraignment does not occur within six hours after arrest. Id. at 406, 525 A.2d at 1181.
Our adoption of the more rigid standard of Davenport was an attempt to assure more certain and even-handed application of the prompt arraignment requirement, and provide greater guidance to trial courts and law enforcement authorities. . . . [I]mplicit in our holding was a determination that a delay of six hours between arrest and arraignment is an acceptable period of time to accommodate conflicting interests without creating such a coercive effect so as to violate the rights of an accused. Therefore, the focus should be upon when the statement was obtained. . . . If the statement is obtained within the six-hour period, absent coercion or other illegality, it is not obtained in violation of the rights of an accused and should be admissible. In keeping with the underlying objectives of the rule, only statements obtained after the six-hour period has run should be suppressed on the basis of Davenport.
Id. at 405-06, 525 A.2d at 1182-83.
¶ 10 The Davenport-Duncan rule was further refined in Commonwealth v. Odrick, 410 Pa.Super. 245, 251-53, 599 A.2d 974, 977 (1991), in which this Court held that “absent facts pointing to an unnecessary delay due to police misconduct, voluntary statements given by a defendant and initiated within six hours after arrest may not be suppressed just because the process of obtaining the statement runs over six hours.”
¶ 11 In the present case, Perez contends that because he was arrested at approximately 6:30 p.m., and police did not begin interrogating him until 12:45 a.m., the statements he made to police during the interrogation should be suppressed on the ground that they were not obtained within six hours of his arrest. Indeed, the interrogation that produced Perez‘s statements did not begin until approximately fifteen minutes past the six-hour period following his arrest. However, in this instance we do not believe that Duncan requires suppression of the statements.
¶ 12 We base our decision on the fact that the delay in this case was deliberately caused by Perez himself. Detective Fetters first sat down to interview Perez at approximately 11:15 p.m., less than five hours following Perez‘s arrest. However, as a result of Perez‘s lies regarding his name, birthdate, address and telephone number, Detective Fetters was forced to spend additional time determining Perez‘s identity. Detective Fetters checked the name John Presberry in the police computer at 11:42 p.m. At that time, he discovered that the name was false, and from 11:42 p.m. to approximately 12:00 a.m., he conducted further research to determine Perez‘s identity. At 12:00 a.m., when confronted by police about the misinformation, Perez finally provided his true name and date of birth, thereby revealing that he was a juvenile. Accordingly, another detective then contacted Perez‘s aunt, for whom police had located an address and telephone number, to obtain permission to interview Perez. At 12:45 a.m., Perez was read his Miranda rights and Detective Fetters began the interrogation, which ended at approximately 4:30 a.m. Thus, by providing the police with false information, Perez delayed his interrogation by more than one hour, i.e., from 11:42 p.m. to 12:45 a.m.
¶ 13 This Court recognizes that a defendant is under no obligation to provide the police with information as to his identity or any other matter. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);
¶ 14 Our conclusion is supported by prior opinions of this Court in which we have expressed a reluctance to allow a defendant to profit from a delay that he caused intentionally. For example, in Commonwealth v. Devan, 338 Pa.Super. 95,
¶ 15 The appellant in Devan alleged that because she was not arraigned until approximately 20 1/2 hours after her arrest, under Davenport, her oral statements and the physical evidence obtained as a result thereof should be inadmissible. The Commonwealth argued that the delay was excusable because of exigent circumstances, namely, the appellant‘s own actions of lying to the police about her name.
¶ 16 In Devan, this Court, noting that part of the delay in arraigning the appellant was due to her own actions, concluded that the portion of the delay caused by the appellant, namely, from 3:30 p.m. to 5:20, should be excluded in determining whether the Davenport rule had been violated.9 Id. at 872. In doing so, this Court relied on several cases, including Commonwealth v. Gallo, 276 Pa.Super. 562, 419 A.2d 601 (1980) and Commonwealth v. Machi, 294 Pa.Super. 338, 439 A.2d 1230 (1982). These cases involved alleged violations of
¶ 17 In light of this Court‘s prior guidance, we shall, therefore, employ the same approach we took in Devan, and exclude the period of time between Perez‘s arrest, during which he gave police a false name, and the time at which he provided the police with his true identity, i.e., from 6:30 p.m. until midnight. We therefore conclude, for purposes of determining whether Perez‘s statements were obtained in violation of the Duncan rule, that the clock should begin ticking at midnight, when Perez provided police with his real name, rather than at the time of his arrest when he provided police with false and misleading information. As Perez‘s interrogation ended at 4:30 a.m., Perez‘s statement was necessarily initiated and completed by 4:30 a.m., which is within six hours of midnight.
¶ 18 To suppress Perez‘s statements under a strict application of the six-hour Duncan rule would reward Perez for lying to the police and would send a message that by using delay tactics, criminal defendants may create a basis on which to suppress a confession. This is clearly not the intended effect of the rule. We are further guided in our decision by the following language by our Supreme Court in Duncan:
This Court never intended that the rule of Davenport be rigidly applied in all situations without regard to the purpose of the rule and the evils sought to be avoided by its application. “At no time did we wish to cut off freely volunteered confessions of guilt, nor did we wish to impede legitimate law enforcement efforts. The primary purpose sought to be obtained was to discourage the obtaining of incriminatory information through coercive means, and it was felt that the mere passage of time while
under arrest could have a coercive effect on the defendant.”
Duncan, 514 Pa. at 406, 525 A.2d at 1182 (citation omitted).
¶ 19 Recently, in Commonwealth v. Devine, 750 A.2d 899 (Pa.Super.2000), this Court held that where an appellant was held in police custody for nearly five and one-half hours before he was questioned and completed his statement within six and one half hours after being taken into custody, there was no violation of the Davenport-Duncan rule. Id. at 903. Significantly, in its analysis, this Court in Devine discussed the Pennsylvania Supreme Court analysis of applicability of the six-hour rule in Commonwealth v. Washington, 547 Pa. 550, 692 A.2d 1018 (1997), and explained:
the Court in Washington declined to find a violation of the Davenport-Duncan rule since the appellant in that case gave an inculpatory statement within five (5) hours of being questioned in an interrogation room even though he had been in police custody for approximately twenty-eight (28) hours. The Washington Court noted that the record did reveal that appellant had languished in a holding cell while being processed into the criminal justice system on an unrelated charge prior to his removal to the interrogation room and questioning on the murder charge for which he was convicted. Even so, the Court found that no violation of the Davenport-Duncan rule existed due to its premise, which is based upon “a desire to avoid the coercive effect of prolonged police interrogation.” Id. 547 Pa. at 561, 692 A.2d at 1023 (emphasis supplied).
¶ 20 Perez does not allege that his confession was coerced, unknowing, or involuntary. As in Washington, supra, there was no prolonged period of interrogation of Perez by police. Rather, Perez seeks suppression of his statements based on a technical application of the six-hour rule. In view of the cause of the delay and circumstances surrounding it in this case, suppression of the statements made to police by Perez would not comport with the spirit behind the rule or with this Court‘s previous rulings that a defendant should not profit from a delay which he himself has caused.
¶ 21 For the reasons discussed above, we find no error in the trial court‘s denial of Perez‘s motion to suppress the state-
¶ 22 Judgment of Sentence affirmed.
¶ 23 Judge JOHNSON files a Dissenting Opinion.
JOHNSON, J., dissenting:
¶ 1 I respectfully dissent from my distinguished colleagues’ Majority Opinion because I conclude that the trial court erred in denying John Perez‘s motion to suppress his statement. Currently, the six-hour rule enunciated in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and refined in Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), requires the suppression of a statement made by a defendant after arrest and prior to arraignment if the statement is given after the elapse of six hours following arrest. See Commonwealth v. Odrick, 410 Pa.Super. 245, 599 A.2d 974 (1991). In the instant case, the record shows, and the Majority acknowledges, that Perez‘s statement was made prior to arraignment and that he commenced giving his statement after the six hours following his arrest had elapsed. Accordingly, I would reverse the judgment of sentence and remand for a new trial.
¶ 2 The Majority concludes that Perez should be denied the protection of the six-hour rule because his untruthfulness with police delayed his arraignment. See Majority Opinion at 876 (stating that “as a result of Perez‘s lies regarding his name, birthdate, address and telephone number, Detective Fetters was forced to spend additional time determining Perez‘s identity“). Therefore, the Majority holds that the six-hour rule does not require suppression because “the delay in this case was deliberately caused by Perez himself.” Id. I disagree with the Majority‘s conclusion and find its jurisprudence problematic for three reasons. First, the Majority anchors its analysis in a case that has no precedential value. Second, the Majority‘s holding permits police officers to postpone a criminal defendant‘s arraignment while they do investigative work that is not a necessary prerequisite to the arraignment. Third, the Majority‘s holding contravenes Pennsylvania Supreme Court precedent by abrogating the safeguards established by the Court in Davenport and Duncan, supra. In the following discussion, I shall address these issues seriatim.
¶ 3 First, the Majority cites to Commonwealth v. Devan, 338 Pa.Super. 95, 487 A.2d 869 (1985), as the foundation for its holding. Devan was decided by a three judge panel consisting of Judge Del Sole, Judge Montemuro, and Judge Hoffman. Judge Hoffman wrote the opinion, Judge Del Sole concurred in the result, and Judge Montemuro wrote a concurring opinion. Thus, no other judge joined Judge Hoffman‘s opinion. Importantly, Judge Montemuro‘s concurring opinion does not endorse any part of Judge Hoffman‘s opinion. “Unless an issue in a panel decision commands a majority both as to result and as to rationale, the principle embodied in the issue is not precedential.” Askew v. Zeller, 361 Pa.Super. 35, 39-41, 521 A.2d 459, 462 (1987) (emphasis added). See also Commonwealth v. Price, 543 Pa. 403, 407-09, 672 A.2d 280, 282 (1996) (stating that a plurality decision is non-precedential). Consequently, Devan has absolutely no precedential value. See id. See also Podrat v. Codman-Shurtleff, Inc., 384 Pa.Super. 404, 558 A.2d 895 (1989) (stating that an opinion “not joined by a majority of the participating judges is not precedential“). Accordingly, I conclude that the Majority‘s reliance upon Devan is in error.
¶ 4 Moreover, I cannot agree with the Majority‘s attempt to analogize this case to that of a defendant who makes him or her self unavailable for trial and then seeks the protection of Rule 1100. See
¶ 5 Second, the Majority states that although a defendant is under no obligation to provide the police with information as to his identity or any other matter, “once a defendant chooses to talk with the police, he should not profit from any delay his untruths may cause.” Majority Opinion at 876. Initially, I note that we are not here addressing a defendant‘s rights subsequent to arraignment or the quantum of information a defendant must give the police in order for him to be entitled to bail. On these facts, I am at a loss to discover the elusive profiteering that a defendant purportedly commits when he or she lies to the police. A defendant‘s untruthful statements do not spring him from incarceration or give him a tangible advantage over his interrogators. Nor do a defendant‘s untruthful statements “cause” the delay in being brought to arraignment. Regardless of the lies that a defendant spews forth, he can be arraigned at any time.
¶ 6 At issue in this case is whether a statement should be suppressed when it is made after the passage of a certain period of time and prior to arraignment. In Duncan, our Supreme Court reiterated that this exclusionary rule
“was adopted not simply to guard against the coercive influence of custodial interrogation, but to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.” Davenport, 370 A.2d at 305.
While [this exclusionary principle] was not designed to terminate police interrogation, it was intended to interrupt it after a reasonable period of time to allow the suspect to be advised of his custodial rights by an impartial judicial officer, as opposed to police officials, and in appropriate cases to establish the conditions of his release pending trial.
525 A.2d at 1181 (citations omitted) (quoting Commonwealth v. Jenkins, 500 Pa. 144, 147-49, 454 A.2d 1004, 1006 (1982)). Stated more directly, the very purpose of the six-hour rule is to allow for and require judicial arraignment after a strictly limited period of time. See BLACK‘S LAW DICTIONARY 104 (7th ed.1999) (defining “arraignment” as: “The initial step in a criminal
¶ 7 Thirdly, the Majority‘s decision is guided by a quote from Duncan in which our Supreme Court stated that the primary purpose of the six-hour rule “‘was to discourage the obtaining of incriminatory information through coercive means, and it was felt that the mere passage of time while under arrest could have a coercive effect on the defendant.‘” Majority Opinion at 878-79 (quoting Duncan, 525 A.2d at 1182). The Majority goes on to state that “Perez does not allege that his confession was coerced, unknowing or involuntary.” Id. at 879. However, this analysis is of no import when one considers that the Supreme Court‘s rationale in establishing the six-hour rule was that the “mere passage of time” while under arrest could have a coercive effect on a defendant. Duncan, 525 A.2d at 1182 (emphasis added). Moreover, after a review of the many Supreme Court cases on this issue, I am unable to find any support for the proposition that a defendant either must allege or show that his or her statements, in addition to being made after the elapse of six hours following arrest and prior to arraignment, were in fact the result of coercion or were unknowing or involuntary.
¶ 8 In conclusion, I acknowledge the Majority‘s advocacy of abrogating the six-hour rule. See Majority Opinion at 879 n. 12 (citing Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859 (2000), solely for the proposition that the six-hour rule is now viewed unfavorably by some members of our Supreme Court). It is beyond our authority, however, to discard the six-hour rule so long as it remains binding Supreme Court precedent. In fact, the very case upon which the Majority relies for illustrating the unpopularity of the six-hour rule actually reaffirms the rule as binding law in our Commonwealth. See Bridges, 757 A.2d at 871-72. Faced with over two decades of Supreme Court precedent on this issue, we may not now eviscerate the rule in such a way that reverts us back to a method of determining unnecessary delay by examining the particular circumstances of each interrogation.
¶ 9 So long as the six-hour rule remains the law of this Commonwealth, I am wary of the curtailment advocated by the Majority. The Majority‘s holding would diminish established safeguards against potential police abuses affixed by our Supreme Court. This curtailment of a defendant‘s right to be arraigned without unnecessary delay would expose our criminal justice system to potential abuse by law enforcement officials. A defendant is under no obligation to inform the police of his true identity or to give the police any information whatsoever. Surely, the Supreme Court recognized this when it fashioned the six-hour rule. The reality of the criminal justice system is that defendants routinely lie to the police. If police officials could delay the six hour period by the amount of time it takes to verify information obtained from an arrestee, when such information is unnecessary to the commencement of an arraignment procedure, the six-hour rule would no longer exist. Therefore, I dissent.