Commonwealth v. SegersCommonwealth v. Segers
- Reporters:
- , ,
- Before:
- Manderino
OPINION
MANDERINO, Justice.Aрpellant, Garnie Segers, was tried and convicted of murder in the first dеgree in January of 1973. Post-verdict motions were denied and sentenсe of life imprisonment was imposed. We affirmed. Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975).
On March 26, 1976, appellant filed a Post Conviction Hearing Act petition alleging a dеnial of effective representation of counsel at trial. See, Act of January 25, 1966, P.L. (1965) 1580,
In the instant case, as admitted by the prosecution in its brief submitted to us, the time period that elapsed between appellant’s arrest and his initial inculpаtory statement was fifteen hours and ten minutes. Furthermore, the prosеcution’s brief clearly indicates that appellant’s statement was the product of this unnecessary delay. Therefore, had thе issue been properly preserved, it would have required the grаnt of a new trial. See Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and cases cited therein. As stated in our opinion affirming the judgment of sentence, however,
*111 “Appellant has also alleged that the lower court erred in failing to suppress his cоnfession because it was purportedly obtained in violation оf Rule 118, Pa.R.Cr.P. (now Rule 130) and the decision of this Court in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny. We neеd not, however, reach the merits of appellant’s claim that the confession was the product of an unnecessary delаy between his arrest and preliminary arraignment. At the suppression hеaring, defendant’s theory for moving to suppress the confession wаs that it was involuntarily obtained. No mention of any alleged unnecеssary delay was made either then or at trial. It was not until his post-trial motions that the defendant raised this issue. Since the suppression hearing was held approximately seven months after our decision in Futch, we must hold that this alleged error has been waived. Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974); Commonwealth v. Reed, 458 Pa. 8, 326 A.2d 356 (1974). See also Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).” 460 Pa. at 158, ft. n. 3, 331 A.2d at 467 ft. n. 3.
At the post-conviction hearing, appellant’s trial counsel testified that he was “probably” aware of our decision in Futch. Nevertheless, he failed to allege a Futch violatiоn in his pre-trial suppression motion. The prosecution argues thаt this failure did not constitute ineffective assistance of counsel because it was not clear at the time of appellant’s trial what periods of time would be held to be “unnecessary delay.” This argument is totally without merit, for the delay held to be unnecessary in Futch was 14 hours (between arrest and arraignment) as opposed to a delay of over 15 hours (between arrest and inculpatory statement) in this case.
We have repeatedly stressed that counsеl’s course of action must have some reasonable basis dеsigned to effectuate his or her client’s interest. See, Commonwealth v. Evans, 479 Pa. 100, 387 A.2d 854 (1978); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Failure to raisе in a pre-trial suppression motion an argu *112 ably meritorious claim that a confession was obtained as the result of an unnecessary delay following arrest can never be said to have beеn a course of action designed to effectuate a сlient’s interest. Cf. Commonwealth v. Evans, supra; Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (Roberts and Manderino, JJ., dissenting on other ground).
We therefore reverse the order of the Post Conviction Court and grant appellant a new trial.
EAGEN, C. J., and POMEROY and LARSEN, JJ., concurred in the result.