Commonwealth v. Mitchell

346 A.2d 48, 464 Pa. 117, 1975 Pa. LEXIS 1037

Opinions

OPINION

NIX, Justice.

Appellant, Christopher Columbus Mitchell, was indicted and charged with the murder of nineteen-year-old John Mikalonis. In a pre-trial proceeding under Pa.R. Crim.P. 323, appellant tried unsuccessfully to suppress certain statements made to the investigating officers on the ground that they were involuntary. At the conclusion of trial, before a judge and jury, appellant was found guilty of murder in the second degree. A sentence of from ten to twenty years imprisonment was imposed. This direct appeal followed.¹

Relying upon this Court’s decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny,² appellant claims that his confession should have been suppressed as the product of an unnecessary delay between arrest and arraignment in violation of Pa.R.Crim.P. 118 (now 130).

I.

Initially, the Commonwealth requests that we reconsider our decisions ³ in which we have held the exclusionary rule as announced in Commonwealth v. Futch, supra to be applicable to all arrests subsequent to the date of adoption of the procedural rule requiring prompt arraignment after arrest.⁴ The Commonwealth argues that in applying the Futch exclusionary rule in this manner, we are giving the procedural rule retroactive application.⁵ We do not accept this view. Retroactivity occurs where the new decision overrules stated past precedent or disrupts a long accepted practice and is permitted to affect matters which preceded its announcement. 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 Futch decision merely explained the consequences that would follow a violation of the prescribed conduct.

Further, we reject the Commonwealth’s contention that our ruling places an unreasonable burden on law enforcement officials. Having knowingly acted in violation of this Court’s procedural mandate, police officials subjected themselves to whatever sanction we deemed appropriate for such a violation. The mere fact that the penalty for violation of the rule was not expressly set forth at the time the infraction occurred does not provide a justification for a prospective application of the sanction. When law enforcement officials deliberately violate our mandates they act at their peril and should not be heard later to complain as to the severity of the penalty for such a violation.

“When we make rules for criminal proceedings we do so in order to protect the rights of the individual and therefore we expect strict compliance with those rules. However, a prophylactic exclusionary rule is applied only in extreme cases where all other attempts to secure compliance have proven unsuccessful. See generally Mapp v. Ohio, 367 U.S. 643, 651-652, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).” Commonwealth v. Williams, 454 Pa. 368, 372, 312 A.2d 597, 600 (1973).

deter further continued flagrant disregard of this man-The repeated violations of Pa.R.Crim.P. 130 fully justify the imposition of a doctrine of exclusion as a means to date.

II.

The question whether the issue has been properly preserved for appellate review, i. e., whether there has been a waiver of this issue, presents a more difficult problem. While the procedural rule, which requires prompt arraignment without an unnecessary delay following an arrest, was in effect at the time of appellant’s arrest, he has for the first time in this appeal cited this violation specifically as a basis for relief. Although appellant challenged the voluntariness of his confession throughout the various stages of the proceedings in the court below, he at no time raised his present contention that the statement was a product of an unnecessary delay in violation of this Court’s rule of criminal procedure.

We first considered the waiver problem as it relates to the doctrine of exclusion as announced in Commonwealth v. Futch, supra, in a footnote in Commonwealth v. Wayman, 454 Pa. 79, 82, n. 1, 309 A.2d 784, 786, n. 1 (1973). Therein, we reasoned:

“Although appellant did not raise this specific argument in his pre-trial (1967) motion to suppress (which was based on purported violations of the standards set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)), the Commonwealth has not objected to it being raised here, and we should not raise an objection sua sponte. Commonwealth v. Page & King, 451 Pa. 331, 334 n. 3, 303 A.2d 215, 216 n. 2a (1973). Indeed, had such an objection been voiced by the Commonwealth, it would have beemwithout merit.

As Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) (deciding for the first time in this Commonwealth that all evidence obtained during an ‘unnecessary delay’ between arrest and arraignment, except, that evidence unrelated to the delay, is inadmissible), was not decided until five years after appellant’s trial, appellant cannot be held to have waived the right to litigate that claim. As this Court made clear in Commonwealth v. Simon, 446 Pa. 215, 218, 285 A.2d 861, 862 (1971) (quoting from Commonwealth v. Cheeks, 429 Pa. 89, 239 A.2d 793 (1968)): “[I]t 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 had any way of knowing that there existed a right to be waived.” Id. at 95, 239 A.2d at 796. Cheeks and its progeny . established 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.’ (footnote omitted). See also Commonwealth v. Jefferson, 423 Pa. 541, 546, 226 A.2d 765, 768 (1967).

Moreover, appellant’s present contention is properly before this Court for the additional reason that the ‘ground’ for relief presented here is the identical one presented to the hearing court in appellant’s pre-trial motion to suppress — the invalidity of the confession. Merely because appellant ‘advances a new or different theory as a basis for’ relief, the ground or issue remains precisely the same. Commonwealth v. Slavik, 449 Pa. 424, 430, 297 A.2d 920, 923 (1972). Appellant here does not advance a new ‘ground,’ he merely raises an argument legally different from that raised below. As this Court held in Slavik, supra (quoting from Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963)), ‘“identical grounds may often be supported by different legal arguments, . ” ’ the ‘ground’ appellant advances here, the invalidity of the confession, having been preserved below, is accordingly properly before this Court.” Id. Commonwealth v. Wayman, supra has subsequently

been followed in Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Showalter, 458 Pa. 659, 328 A.2d 841 (1974); Commonwealth v. Doamaral, 461 Pa. 517, 337 A.2d 273 (1975).

Since our decision in Commonwealth v. Wayman, supra, we have had occasion to re-evaluate the necessity of requiring strict application of the rules of waiver. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 , 322 A.2d 114 (1974); see also, Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Appellate Courts render a disservice to judicial economy and the efficient operation of our court system where they freely accept issues that could have and should have been first presented to the courts below for their consideration. Commonwealth v. Reid, supra (and cases cited therein). Such procedures encourage the reversal of many trials for errors which could have been, in all probability, avoided or cured if they had been promptly called to the attention of the lower court.

Additionally, such a procedure not only deprives the reviewing court of the benefit of the reasoning of the lower court on the issues at hand but in many cases requires a decision of an issue on less than a complete record. Where parties below were not aware that a particular issue was being raised, it was quite likely that testimony germane to that issue would be overlooked or believed to be unnecessary and consequently not presented. This is particularly true in this instance where the facts crucial to rebut a charge of involuntariness may or may not be helpful in determining the reasonableness of a delay or the nexus of the delay to the evidence obtained during the course of it.

In Commonwealth v. Clair, supra, we discussed at length the considerations that led to the conclusion that assignments of error must be properly preserved below.

“Most recently this Court has expressly abrogated the doctrine of basic and fundamental error in civil cases, Dilliplaine v. Lehigh Valley Trust Company, [457 Pa. 255], 322 A.2d 114 (filed June, 1974). There the Court reasoned that the doctrine (1) ‘removes the professional necessity for (diligent preparation)’, (2) penalizes the opposing party, (3) denies the trial court an opportunity to correct the error, (4) erodes the finality of trial court holdings, (5) encourages unnecessary appeals and (6) needlessly discourages alert pro fessional representation. The requirement of a timely specific objection on the other hand insures that:

‘(1) Appellate courts will not be required to expend time and energy where no trial ruling has been made. (2) The trial court may promptly correct the the trial court is more likely to reach a satisfactory asserted error. With the issue properly presented, result thus, obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellant review. (3) Appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.’ 322 A.2d at 117. (footnotes omitted).

There can be no doubt that these reasons apply as well in the criminal area. Moreover, there is no reason to distinguish between civil and criminal cases in this regard in view of the fact that there are comparable rules requiring specific objection in both sets of procedural rules. Compare Rule 227 (b) of the Pennsylvania Rules of Civil Procedure. 12 P.S. Appendix, with Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure. Iiideed, abrogating the doctrine in the criminal area may be even more compelling since any error that deprives a defendant of due process can more properly be remedied by a claim of ineffective assistance of counsel. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).” Id. at 421-422, 326 A.2d at 273-275.

We are constrained to conclude that the view expressed in Commonwealth v. Wayman, supra is a variance with well-considered judicial policy and should be discarded. To make a distinction turn upon the fact that one is merely advancing a new theory, creates a fiction which frustrates the very purpose sought to be accomplished by a strict application of waiver. As was aptly stated by Mr. Justice Roberts speaking for this Court in Kimmel v. Somerset County Commissioners, 460 Pa. 381, 333 A.2d 777 (1975):

“It is a 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. See Altman v. Ryan, 435 Pa. 401, 406-07, 257 A.2d 583, 585 (1969); Abrams Will, 419 Pa. 92, 98, 213 A.2d 638, 641 (1965); Fisher v. Brick, 358 Pa. 260, 264, 56 A.2d 213, 215 (1948); Mayer v. Chelten Avenue Building Corp., 321 Pa. 193, 195, 183 A. 773 (1936).” Id. at 384, 333 A.2d at 779.

Further reflection also forces the conclusion that we were in error in Commonwealth v. Wayman, supra, when we determined that precluding an accused from raising .the issue when he had not specifically raised it below would be “manifestly unfair.” Defense counsel should have been aware that our rules of procedure required a prompt arraignment without an unnecessary delay. If it was ascertained that this direction had been ignored and his client prejudiced thereby, the fact that the penalty for such a violation had not been announced fails to provide an excuse for failing to raise the objection. The “manifest unfairness” would result if we were 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. Where a counselled accused sits idly by and fails to raise an objection to improper treatment to which he has been subjected, he will not later be heard to complain but must suffer the consequences of his silence.

We therefore hold that the objection based on the unnecessary delay between arrest and arraignment has been waived. Since appellant offers no other basis for relief the conviction below must stand.⁶

Judgment of sentence affirmed.

POMEROY, J., filed a concurring opinion joined by JONES, C. J., and EAGEN, J. ROBERTS, J., filed a dissenting opinion joined by MANDERINO, J.

Footnotes

1

. Jurisdiction in this Court for the appeal from a murder conviction exists pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp.1974-1975).

2

. See, e. g., Commonwealth v. Abu Ibn Hanifah Bey, 462 Pa. 533, 341 A.2d 907 (1975); Commonwealth v. Doamaral, 461 Pa. 517, 337 A.2d 273 (1975); Commonwealth v. Cullison, 461 Pa. 301, 336 A.2d 296 (1975); Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); see Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973).

3

. See Commonwealth v. Dutton, supra; See also, Commonwealth v. Cullison, supra; Commonwealth v. Doamaral, supra; Commonwealth v. Wilson, 458 Pa. 285, 327 A.2d 621 (1974); Commonwealth v. Johnson, supra; Commonwealth v. Terry, 457 Pa. 185, 321 A.2d 654 (1974); Commonwealth v. Cherry, supra; Commonwealth v. Dixon, supra; Commonwealth v. Tingle, supra.

4

. Pa.R.Crim.P. 130, formerly Rule 118 (in part), 19 P.S. Appendix adopted June 30, 1964; effective January 1, 1965, suspended effective May 1, 1970; revised and renumbered as Rule 118 (in part) January 31, 1970, effective May 1, 1970; revised and renumbered as Rule 130, September 18, 1973, effective January 1, 1974. See also, Pa.R.Crim.P. 122, 19 P.S. Appendix. Formerly Rule 116 (in part), adopted June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; revised and renumbered as Rule 122, September 18, 1973, effective January 1, 1974.

5

. This appellant was voluntarily surrendered by his attorney on April 25, 1971 at which time Rule 118 was in effect but prior to our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) (Decided April 20, 1972).

6

. Appellant has not raised the issue of voluntariness before this Court.