Commonwealth v. Pugh

383 A.2d 183, 476 Pa. 445, 1978 Pa. LEXIS 832

• Court: Supreme Court of Pennsylvania
• Decided: January 26, 1978
• Docket: 199
• Status: Published

Opinions

OPINION

EAGEN, Chief Justice.

Julius Pugh was convicted by a jury of murder of the third degree. Post-verdict motions were denied and a prison sentence of ten to twenty years was imposed.¹ This appeal followed.

Pugh contends he is entitled to a new trial because of certain alleged errors in the prosecution process. The Commonwealth argues these issues have not been preserved for appellate review because Pugh failed to comply with Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), which requires that assignments of error be presented in written post-verdict motions. We do not accept the Commonwealth’s position. The assignments of error were presented to the post-verdict motion court in a written “Memorandum in Support of Motions in Arrest of Judgment or for New Trial,” and the court accepted and considered the merit of these assignments of error without objection. Thus, while we do not approve of this practice, Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), is controlling and we will consider the issues to be properly before us.

Pugh urges, inter alia, that the trial court erred in denying pretrial applications to suppress certain evidence which was later used against him at trial. Included in this category is evidence of oral and written statements Pugh is said to have made while in police custody. Specifically, Pugh maintains this evidence was obtained under impermissible circumstances, namely, without a prior knowing and intelligent waiver of constitutional rights and that the trial court erred in ruling otherwise. After an examination of the record we are unable to intelligently resolve the merits of this issue and will, for the reasons that follow, remand the record to the trial court for further proceedings.

The record discloses that the answers of the Commonwealth to the pretrial applications to suppress were not filed until the day fixed for the suppression hearing, a date well beyond the time permitted.² Because of this, Pugh’s counsel requested the suppression court to accept as true all well-pleaded facts in the applications. The request was denied for reasons not made clear.³ In overruling the post-verdict motions, the trial court stated the suppression court had “discretion, under Rule of Criminal Procedure No. 20 to disregard the Commonwealth’s technical failure to comply with the rules, if it believed the interests of justice so required.”

Our research has not disclosed any “Rule of Criminal Procedure No. 20” justifying a disregard of Pa.R.Crim.P. 308(a)’s mandate,⁴ and since there was nothing of record to show “good cause” for the late filing of the answers, the suppression court should have accepted as true all of the well-pleaded facts averred in Pugh’s applications.⁵ Commonwealth v. Eller, 232 Pa.Super. 99, 332 A.2d 507 (1974).

The Commonwealth argues that, even if the suppression court erred in not following the mandate of Rule 308, supra, no prejudice resulted because all of the well-pleaded facts in the applications were eventually accepted as true in the court’s adjudication disposing of the applications to suppress. While this may be correct in part, it is not completely so.

Pugh’s claim that he did not knowingly and intelligently waive his constitutional rights before making the challenged statements was based in part⁶ on the allegation that on the day “of the interrogation by the police, the defendant (Pugh) had taken an unknown quantity of prescriptive drugs.”

In view of the untimely filing of the answers without “good cause shown,” the suppression court was required to accept this factual averment in the applications as true. But this the suppression court failed to do. In fact, there is nothing in the court’s findings or adjudication to indicate this fact was considered.

While the intake of drugs does not necessarily prevent one from knowingly and intelligently waiving constitutional rights, Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1976), it may well do so. To determine this all of the attending circumstances must be considered, including the type and quantity of the drug, the exact time or times the drug was consumed and whether an impairment of the faculties ensued. The instant record fails to provide this information.

We will, therefore, vacate the judgment of sentence and remand the record to the trial court for a new suppression hearing at which all relevant facts and circumstances are to be explored and considered. Following this, if the Court again determines the challenged evidence was obtained under constitutionally permissible circumstances, it will reinstate the judgment of sentence and Pugh may file a new appeal. But if the Court determines the challenged evidence should have been suppressed, then a new trial should be granted.

It is so ordered.

POMEROY and NIX, JJ., filed dissenting opinions. JONES, former C. J., and ROBERTS, J., did not participate in the consideration or decision of this case.

1 . Pugh was ordered committed to a mental rehabilitation facility in lieu of incarceration in a correctional institution.

2 . Pennsylvania Rule of Criminal Procedure 308 provides:

“Answers to Pretrial Application

“(a) Answers may be filed not later than seven days after service of the pretrial application, except for good cause shown. Failure to answer shall be deemed an admission of the well pleaded facts averred in the application.”

3 . The court did say the district attorney’s office was experiencing difficulty with stenographic personnel. Even assuming such would constitute “good cause shown,” there is nothing of record to support this.

4 . Of course, a rule of procedure adopted by a court of common pleas cannot be used as a means to circumvent our rules of procedure. Pa.R.Crim.P. 1(b).

5 . We reject the Commonwealth’s position that Pugh was required to allege “specific prejudice resulting from the late filing.” No such requirement is set forth in Pa.R.Crim.P. 308.

6 . Additionally, Pugh alleged he was a functional illiterate and was suffering serious psychiatric problems and had consumed a quantity of alcohol immediately before his arrest and the questioning.