Commonwealth v. Sanders
327 A.2d 43
Pa.
1974
Check Treatment

Commonwealth v. Sanders, Appellant

Supreme Court of Pennsylvania

October 16, 1974

458 Pa. 281

Submitted November 8, 1973

murder, however, should be vacated and the record remanded for a new degree of guilt hearing.

I must also dissent for another reason. Even if there were no issue raised in this appeal concerning the assistance of counsel, I would remand the case for an evidentiary hearing on another issue. The appellant, in both his 1967 PCHA hearing and in his 1970 PCHA hearing, specifically raised the issue of the denial of his

right of appeal following his judgment of sentence in 1959.
. Although testimony was taken on this issue at the hearing following the 1967 petition, the trial court made no findings and did not address itself to this issue. When the issue was raised by the appellant in 1970, no testimony was taken and the trial court did not make any findings or address itself to the issue. Since this is a first degree murder case, we should not ignore the appeal issue which appellant has raised twice in the trial court. Cf. Act of February 15, 1870, P. L. 15, §§ 1-2, 19 P.S. §§ 1186-87. I would remand for an evidentiary hearing, findings of fact and conclusions of law on this issue. This alternate relief, however, should not be necessary since the judgment of sentence for first degree murder should be vacated and the record remanded for a new degree of guilt hearing.

Harold Randolph, for appellant.

Linda West Conley, James Taylor Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

OPINION PER CURIAM, October 16, 1974:

Robert Lee Sanders was convicted by a jury of murder in the second degree, conspiracy and violation of the Uniform Firearms Act. Following the denial of post trial motions, a prison sentence of five to fifteen years was imposed on the murder conviction. Sentence was suspended on the other convictions. This appeal was then filed. We reverse and order a new trial for the reasons that follow.

The prosecution emanated from the fatal shooting of Edward Willis, a fourteen-year-old youth on March 15, 1970, as he emerged from a youth center located on West Stewart Street in Philadelphia. The appellant Sanders, suspected of being a participant in the crime, was taken into custody by the police about 3:30 p.m. on March 16th, but he was not arraigned before a magistrate until 8:30 a.m. on March 17th.

Between 3:45 p.m. and 8:00 p.m. on March 16th, Sanders was questioned by the police for short periods of time on three occasions and in each instance denied any knowledge of the crime.1 About 8:00 p.m., he was questioned for an hour and persisted in denying guilt. Following this he agreed to take a polygraph test. After the completion of this test and upon being informed “he had not done too well“, Sanders began to change his story. He was then questioned again for about thirty minutes and it was at this time, or about 10:30 p.m., that Sanders admitted for the first time he participated in the Willis assault. However, in his description of the event at this time, Sanders said the gun involved was in the possession of a fellow gang member, one Alvin Stevens, and discharged when he grabbed it. About 11:00 p.m., Sanders was confronted by Stevens who denied ever having possession of the gun. Finally, beginning 12:15 a.m. on March 17th, and continuing until about 2:30 a.m., Sanders was questioned for the

sixth time and in this instance he made a statement admitting he intentionally fired the bullet which snuffed out Willis’ life. The statement was recorded. A pretrial motion to suppress evidence of this statement was denied, and it was admitted at trial over objection.

Under the facts2 it is clear that Sanders’ incriminating statement was the product of an unnecessary delay between his arrest and arraignment, and its evidentiary use at trial was proscribed under our ruling in

. See also
. The Commonwealth argues this particular objection to the statement was never raised in the trial court and may not be raised for the first time on appeal. However, since the admissibility of the incriminating statement was challenged during the suppression proceeding and at trial on the ground of involuntariness, and since all proceedings in the trial court, including the disposition of post trial motions, were concluded before our decision in
was filed, the validity of the statement under
is properly before us for consideration. See
, and
.

Judgment reversed and a new trial is granted.

DISSENTING OPINION BY MR. JUSTICE POMEROY:

I respectfully dissent from the reversal of the judgment of sentence because it is based upon a retrospective application of the exclusionary rule first announced in

. See the dissenting opinion of this writer in
and the opinions therein cited.

Mr. Chief Justice JONES and Mr. Justice EAGEN join in this dissenting opinion.

Notes

1
Before the initial questioning, Sanders was advised of his constitutional rights as mandated by
.
2
The facts related in this opinion are those established by the witnesses for the Commonwealth.