Commonwealth v. Mitchell

¶1(concurring).

¶2I concur in the decision of the Court that the issue of unnecessary delay between arrest and arraignment has been waived in this case. In reaching this result, the Court returns to the “fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court”. Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d 777, 779 (1975), quoted in the Opinion of the Court, ante at 53. In so doing, the Court confesses error in having taken a wrong turn in the adoption and following of footnote one in Commonwealth v. Wayman, 454 Pa. 79, 82 n. 1, 309 A.2d 784, 786 n. 1 (1973), with its wholly artificial distinction between “grounds” and “theories”. I applaud this development, even though a few horses were stolen before the barn door was locked.1

¶3*128While not necessary to its decision, in view of the rationale set forth in part II of the Opinion, the Court nevertheless takes occasion to reaffirm another recent line of cases, to my mind at least as mischievous as the Way-man footnote, viz., those which give retrospective application to the prophylactic exclusionary rule contained in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). I must again register emphatic disagreement with this conclusion as unsupported by authority and unwise as policy.2

¶4The Court bases its reasoning on the preexistence of our rule of criminal procedure relating to prompt arraignment.3 It explains: “In the instant situation the rules of criminal procedure, at the time of the arrest in question, expressly set forth the required standard of conduct. That standard was in no way altered by our decision in Commonwealth v. Futch, supra.Rather, the Futchdecision merely explained the consequences that would follow a violation of the prescribed conduct.” Opinion of the Court, ante at 50. The logic of the Court’s conclusion that retroactivity is thus avoided escapes me. An example will suffice, I hope, to indicate the fallacy of this approach.

¶5*129It is clear that the Fourth Amendment’s prohibition against “unreasonable searches and seizures” existed long before the Supreme Court of the United States de-« cided the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Mapp, the Court extended to the states the rule prohibiting the use of unconstitutionally seized evidence. If the views of our Court today on retroactivity were correct, then the United States Supreme Court should have concluded that the exclusionary rule should be applied to all cases arising since the adoption of the Fourth Amendment. In fact, however, the Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), struggled with the question of the degree of retroactivity to be given the Mappdecision. Its conclusion was that Mappwas not to be given full retroactive effect in that it was not to be applied to any case finally decided prior to the date of the Mappdecision. By the same token, the mere fact that our rule of criminal procedure requiring prompt arraignment was in existence some seven years prior to the Futchdecision does not by any means serve to erase the retroactivity issue.

¶6It is not inappropriate to reiterate here the basis of my conviction that retroactive treatment should not be accorded the Futchexclusionary rule, which, like its federal prototype 4 was not based on constitutional considerations, but on the Court’s supervisory power over the administration of justice in Pennsylvania. As I stated in Commonwealth v. Dutton, supra, even if we were to apply the criteria relevant to determining retroactivity as to a novel constitutional pronouncement, the Futchrule would not qualify;

“Examining Futchin this light, I can only conclude that its purpose will be fully realized by a solely prospective application.

*130“The Futchexclusionary rule contributes nothing to the certainty of the judicial factfinding process. As Mr. Justice Eagen pointed out in his concurring opinion in Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973), the rule is directed entirely to police conduct prior to trial and operates irrespective of the reliability or probative value of ,the evidence excluded. One may hope that the threat of exclusion will help to deter dilatory or illegal police conduct, but it can hardly be supposed that application of the exclusionary rule to events long past will add anything to the rule’s deterrent force for the future. On the other hand, the Court’s opinion may have grave repercussions on the administration of justice. No one knows how many prosecutions have been instituted since January 1, 1965 in reliance on our pre-Futch rules of admissibility, but there must have been a great many. Now, it appears, any defendant convicted on the basis of evidence which under Futchshould be excluded is entitled to a new trial, regardless of the fairness of his original trial. I see nothing to be gained from saddling our judicial system with this potentially staggering burden.” 453 Pa. at 552-53, 307 A.2d at 241 (footnote omitted).

¶7Some idea of the degree to which the judicial system has already been burdened by the retrospective treatment accorded to Futchmay be gained merely by a listing only of the cases which have reached this Court wherein the arrest of the defendant preceded the date of announcement of the Futchdecision.5 Obviously this listing re*131veals only the “top of the iceberg” as far as the total effect on the courts of this Commonwealth is concerned. While it may be that most of such cases have by now been disposed of, I see no justification for the perpetuation of a rule so mistaken as the one under consideration.

¶13(dissenting).

¶14Today’s decision rejects the salutory principles announced in Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973), and holds that failure to pursue a remedy at trial that was non-existent at that time constitutes a forfeiture of that claim. Because our jurisprudence does not impose a waiver upon an accused for failure to claim at trial a remedy which was newly announced months after his trial, I dissent.

¶15On April 10, 1971, one John Mikalonis was shot to death on a Philadelphia street. Five days later, at about 11:00 p. m., appellant, a suspect in the slaying, surrendered to the Philadelphia police. For at least the next 24 hours, the police delayed appellant’s preliminary arraignment while appellant was subjected to four interrogation sessions conducted by relays of detectives and to long periods of isolation.

¶16Throughout the first 22 hours, appellant persistently denied complicity in the crime. However, at about 8:00 p. m., April 26, 22 hours after arrest, the police brought appellant’s younger brother, Isaac, into the interrogation room. Isaac told appellant that he had given the police a *132statement implicating appellant in the killing. Following this confrontation, appellant gave the police four statements in which he admitted killing the deceased.

¶17Prior to trial, appellant sought the suppression of his statements on the ground that they were involuntarily given. The suppression court denied this motion. Subsequently, the statements were admitted into evidence at appellant’s jury trial.

¶18At the conclusion of trial, the jury returned a verdict finding appellant guilty of murder in the second degree. Appellant’s post-verdict motions, filed on January 12, 1972, did not raise the admissibility of his confession. These motions were denied on April 10, 1972, 10 days before this Court decided Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Sentence of 10 to 20 years imprisonment was imposed.

¶19Subsequently, appellant appealed to this Court and claimed that his confession was the product of an unnecessary delay between arrest and preliminary arraignment, and, therefore inadmissible under Futch. Appellate consideration of appellant’s claim is in accordance with Commonwealth v. Wayman, 454 Pa. 79, 82 n. 1, 309 A.2d 784, 786 n. 1 (1972). However, a majority of the Court now opts for an avulsive change in the law by concluding that appellant has waived his Futchclaim.

¶20In Wayman, this Court held that an appellant whose judgment of sentence was imposed prior to the date of our decision in Futchand who had never raised the Futchissue prior to appeal might still obtain relief on that claim on appeal. We gave two reasons for this result.

¶21Primarily Wayman was a consistent application of the familiar and the eminently sensible principle that

“ ‘ “it would be manifestly unfair to hold appellant to a waiver when this waiver is alleged to have occurred at a time when neither the defendant nor his attorney *133had any way of knowing that there existed a right to be waived.” [Commonwealth v. Cheeks, 429 Pa. 89, 95, 239 A.2d 793, 796 (1968)] Cheeksand its progeny . . establish the rule that failure to raise an issue in a prior proceeding is not a waiver when the legal principles upon which the issue is premised are newly announced in an appellate decision rendered subsequent to the date of the prior proceeding.’ ”

¶22Commonwealth v. Wayman, supra, at 82 n. 1, 309 A.2d at 786 n. 1, quoting Commonwealth v. Simon, 446 Pa. 215, 218, 285 A.2d 861, 862 (1971) (emphasis supplied in Simon). Accord, Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968); Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967). See also O’Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966); Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966).

¶23Implicit in our Wayman decision is the view that, although appellant and his counsel could have been aware that Pa.R.Crim.P. 122 and 130 both required prompt preliminary arraignment, they could not be expected to foresee that this Court would later decide that violation of those rules by law enforcement officials rendered inadmissible evidence obtained as a result of the unnecessary delay. Prior to this Court’s decision in Futch, Rules 122 and 130 created a right but announced no remedy for its violation. Thus in cases like Wayman and the present one, the defendant had no reason to raise that issue in the trial court. Therefore, this Court concluded in Way-man that because it is simply unrealistic to expect appellánt to seek at trial a remedy which is first announced in a subsequent appellate decision, Wayman’s failure to raise the Futchissue did not constitute a waiver. One can hardly be said to waive an unknown right.

¶24As an alternative basis for our decision in Wayman, we determined that the Futchissue was properly preserved because Wayman had challenged the admissibility of his confession at every relevant stage in the trial *134court. Although some of the language in this part of Wayman may not seem to be totally consistent with our decision in Kimmel v. Somerset County Commissioners, 460 Pa. 381, 333 A.2d 777 (1975), I find it unnecessary to determine whether Kimmelaffects this portion of Wayman. As already indicated, appellant did not raise the validity of his confession in the post-verdict motions he filed three months before Futch. Therefore, appellant is entitled to relief on his F%tch claim, only under the primary rationale for our decision in Wayman. Kimmel does not affect that part of our Wayman decision.

¶25The opinion announcing the result, relying heavily on Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), and our cases holding that parties will not on appeal receive relief on grounds not raised at every relevant stage of trial, concludes that the logical support for Wayman has been undermined. As the opinion announcing the result correctly points out the teaching of these cases is that courts should not “accept issues that could have and should have been first presented to the courts below for their consideration.” Ante at 52. This obviously refers to known or existing rights and remedies — not to instances where at the time there was no right or remedy to claim. Our holding in Wayman is that in cases similar to it, the Futchissue is not one that as a practical matter “could have and should have” been raised in the trial court.

¶26The only argument that the opinion announcing the result can muster to support its implicit view that appellant “could have and should have” presented the Futchissue is that it is somehow unfair “to penalize police officials for not anticipating the imposition of a sanction for such a violation and at the same time relieve the defense from the responsibility of timely raising the objection.” In my view this statement is transparently wrong. It *135confuses a right of the accused to assert a procedural protection announced subsequent to the accused’s trial with the responsibility of the police to observe a rule of conduct in existence six years prior to the interrogation in the present case.

¶27Contrary to the assertion of the opinion announcing the result, application of the Futchexclusionary rule does not place upon the police any new requirement relating to their conduct of interrogations. Rule 130 (or its predecessors) has been in effect since 1965. Regardless of the nonexistence of a remedy for violation of the Rule, the police were obligated to adhere to the Rule.* However, Futchdid effect a change in the conduct of defense strategy, a change that counsel should not be held to have foreseen. It must therefore be concluded that Wayman does not in fact place unequal burdens upon the police and the defense.

¶28Nor can it be assumed that the need for judicial economy justifies today’s result. While conserving judicial resources and speeding the resolution of litigation are certainly important goals, these desirable objections will not be achieved by exposing the quality of justice to the hazards of arbitrary insistence upon “assembly-line” disposition of cases.

¶29Because in my view, appellant’s Futchclaim was not waived, I must reach the merits of appellant’s claim.

¶30In Commonwealth v. Futch, we held that evidence obtained during a period of unnecessary delay between ar*136rest and preliminary arraignment is inadmissible unless it “has no reasonable relationship to the delay whatsoever.” Id.,447 Pa. at 394, 290 A.2d at 417. In the present case, appellant made the incriminating statements after 22 hours of delay before preliminary arraignment. Appellant argues that this delay was unnecessary, that his statement was a product of the delay and, therefore, that his statement was inadmissible.

¶31The Commonwealth does not contend that the delay was not unnecessary. ’ Instead, it maintains that the confession was not a product of the delay but of appellant’s confrontation with his brother.

¶32We have previously held that where a confession obtained during a period of unnecessary delay is triggered by something other than interrogation, the resulting confession is nevertheless a product of the delay. Thus in Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974), an appellant who had initially maintained that he was not involved in the crime for which he was convicted changed his story after more than 12 hours of pre-arraignment delay when he was confronted with the results of a polygraph test that suggested that he was lying. This Court concluded that the statement was a product of the delay:

“Since appellant was originally unwilling to admit his complicity in the crime, and did not do so until after he was told that he had failed the polygraph test, some twelve hours later, during which time he had been subjected to over six hours of questioning and a lengthy period of isolation, we are convinced that appellant would not have changed his mind were it not for the events which transpired during the delay.”

¶33Id. at 204,321 A.2d at 612.

¶34In two cases following Cherry, Commonwealth v. Bey, 462 Pa. 533, 341 A.2d 907 (1975) (per Nix, J., joined by Manderino & Roberts, JJ.), and Commonwealth v. Doamaral, 461 Pa. 517, 337 A.2d 273 (1975) (per Manderi*137no, J., joined by O’Brien & Roberts, JJ.), the opinions announcing the judgment rejected the contention that a statement made during an unnecessary delay after the accused had been informed that a witness had implicated him in the crime was not a product of the delay.

“After determining that a delay existed, our inquiry should focus on whether such delay was unnecessary, whether prejudicial evidence was obtained, and whether such prejudicial evidence was reasonably related to the delay. Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973). In the instant appeal there is no doubt as to the first two points of inquiry. . As to the third consideration, it is true that appellant denied involvement in the incident until informed of the witness’s accusation, however, the fact that the accusation may have combined with the unnecessary delay to induce appellant’s confession does not mean that the confession is admissible. We did not say in Futchthat the unnecessary delay must be the sole cause of the confession for the confession to be inadmissible. We said that all evidence obtained during an unnecessary delay, except that which has no reasonable relationship to the delay whatsoever, should be excluded. It cannot be said that the confession in the instant appeal had no relationship whatsoever to the twelve hour delay. The fact that the confession may have also been related to other events which occurred during the delay does not eliminate its relationship with the delay.” (Emphasis in original).

¶35Commonwealth v. Doamaral, 461 Pa. 517, 521-522, 337 A.2d-273, 275-76 (1975).

¶36In my view, the present case is indistinguishable from Bey, Doamaral, and Cherry, and appellant has stated a claim under Futchupon which he is entitled to relief. I would therefore reverse the judgment of sentence and remand this case for a new trial.