*1 185' they yet they seek in which would had not filed, which enjoin allegedly plaintiffs’ and unreason- unlawful appellants had blockaded able use the streets illegality of protest of the use. The issue such appellees’ then before was not use of the streets proffered to the irrelevant evidence was court. properly and we before the court, which were issues refusal trial court’s find no of discretion abuse nor in refusal be its introduced, to allow the evidenceto hearing be could continue until the counterclaim filed. appellants, agree that however,
We must injunction unconstitutionally insofar as overbroad, is they advocacy by appellants of what believe it restrains immedi- There was no evidence that to be their cause. appellees irreparable to the ate or harm would result advocacy anything, any appellants’ nor from evidence appellants or intended to ad- had advocated by injunc- any prohibited doing of act vocate the no interference with circumstances, tion. Under these necessary speech appellants’ freedom of or injunction proper. that the terms of the as It follows September the decree 1972 must continued advocating any “or of the words modified deletion act”. hereby September 1972 is
The decree modified as so is affirmed. indicated, and, modified, as above party to bear own costs. Each Terry, Appellant. *2 November 1973. Before C. Argued J., Jones, Nix Roberts, O’Brien, Pomeroy, and Mander- Eagen, JJ. INO, Alen & him
William L. Van Alen, Jr., Van appellant. for Sellers, Attorney, District
Mawine J. Assistant Stotland, Attorney, District with her David Assistant Riehman, *3 Attorney, Sprague, District First Assistant Richard A. Attorney, Specter, for Common- District Arlen and appellee. wealth, 1974:
Opinion 1, July Mr. Justice O’Brien, Terry, Appellant, on con- Nelson was indicted bills burglary, conspiracy, rape, taining forcible counts of robbery aggravated murder. Prior to his trial, and suppress his appellant a motion to confession filed Appellant proceeded then to trial denied. was jurors After had been sworn, 1971. December 6, on plea changed guilty guilty. appellant from his not to guilty plea, his ac- examined on it was was After he judge cepted decided that a case of first and the by the made out been Commonwealth. had murder appellant three-judge panel guilty Thereupon, found degree. He first was life sentenced to prossed. bills other were nolle imprisonment. The This appeal followed.
188
Appellant argues that first court erred accepting guilty plea plea his due to the that the fact product was motivated a confession that was the aof Pennsylvania violation of Rule Criminal Procedure 118. Commonwealth v. 290 A.2d (1972). agree. do not An We examination of the clearly appellant’s record in this case indicates that the illegally Appellant confession was not obtained. was September approximately on arrested at 12,1970, 11:30 p.m., burglary in connection an unrelated and robbery that had occurred in the-Annin Street area Philadelphia. police He was then taken to head quarters, approximately September at 12:30 on a.m., proper warnings, after 13, 1970, where, constitutional questioned gave he was and an oral later statement, writing, implicating reduced to himself in the Annin signed approximate crime. Street He the statement at ly September 4:15 on 1970. a.m., then transferred to the Ad- Police Building, presumably arraigned ministration on robbery burglary charges and which arose out of approximately Annin Street incident. At 11:45 September on was taken a.m., 13, 1970, interrogation questioning an room for about the death Lovey decedent Connors, instant case. police they initially suspected appellant stated that where the because the house decedent had been mur- burglar- in the same manner dered was entered as the Annin home on Street, ized two homes neighborhood. Appellant in the same were was left interrogation approximately room until *4 the in 1:00 questioning formally began. p.m., the when He was rights of his constitutional and warned waived them. strip questioning, appellant a search his Prior to blood on his under- revealed was conducted, garments. Shortly discovered, after the blood was appellant orally participation in the confessed to his police Lovey reduced then Connors. signed. appellant’s writing, not but it was statement to appellant taken, After the initial statement was given a and was was to use the wash room allowed p.m., then left until 2:15 drink of water. He was alone approxi- again until at which time he was interviewed appellant mately p.m. was 3:15 After the interview, p.m. given a rest until 5:00 meal and was allowed to again p.m., con- At 5:00 was advised his give rights proceeded to a formal stitutional and then admissibility he chal- of which now statement, lenges. supra, held we product if
confession inadmissible it is becomes arraignment. unnecessary delay an In the instant relationship do not find a causal we such between case, arraignment Appel delay in and confession. the decedent lant confessed to the murder of within questioning began. an hour after the about that crime necessarily delay before that time was related to All period robbery appel Annin Street or to the when asleep Building. lant Administration was Police p.m., appellant orally The time between 1:00 when p.m., and 5:00 his crime, confessed to his when formal prepared, solely devoted statement was was to obtain possible accomplices ing giving the names of period appellant a meal and a of rest. On the facts of not believe that the we do confession chal case, product any unnecessary lenged delay herein was arraignment. argues that he next could not be found degree guilty of first because the murder, first upon felony-murder based rule and conviction *5 190 the Commonwealth had to nolle agreed pros felony-
the
In
merit.
We find this
without
charges.
argument
A.2d
v.
448 Pa.
292
337
Hainds,
Commonwealth
67,
that
“. . .
held
repeatedly
we stated:
we have
(1972),
in
where murder
been committed
alleged
is
have
the
that felony
of a
of
perpetration
felony, perpetration
need not
Moreover,
be set forth
indictment.”
the nolle
pros
charges
of
the Commonwealth was
by
not the
of situation
in Commonwealth
type
presented
Mileski,
v.
Mr. Mandarino dissents. Justice
Mr.
191
Pomeroy:
Concurring
Opinion
Mr.
Justice
dissenting
in my
expressed
I
to the view
adhere
at
Pa. 547
v.
453
Dutton,
opinion
Commonwealth
our decision
(1973),
A.2d 238 at 240
307
A.2d 417
Pa.
290
More
only.
prospectively
should be
(1972),
applied
*6
inadmis
render
applied
if Futch is to
even
over,
before
Rule 118
obtained
violation
sible evidence
not con
Court should
this
the date of that decision,
presented
properly
issues not
sider on direct appeal
v. Bittner,
to the court below. Commonwealth
v. Myers,
484 (1971);
272 A.2d
post-
case