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COMMONWEALTH v. CLARK (06/13/62)

THE SUPERIOR COURT OF PENNSYLVANIA


June 13, 1962

COMMONWEALTH
v.
CLARK, APPELLANT.

Appeal, No. 7, April T., 1962, from judgment of Court of Quarter Sessions of Allegheny County, April T., 1960, No. 316, and May T., 1960, No. 277, in case of Commonwealth of Pennsylvania v. Alvin Clark. Judgment affirmed.

COUNSEL

Alvin Clark, appellant, in propria persona.

William Claney Smith, Assistant District Attorney, and Edward C. Boyle, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Rhodes

[ 198 Pa. Super. Page 65]

OPINION BY RHODES, P.J.

Defendant was charged with violating the Anti-Narcotics Act of July 11, 1917, P.L. 758, as amended, 35 PS ยง 851 et seq.,*fn1 and indicted in the Court of Quarter Sessions of Allegheny County at No. 316, April Sessions, 1960, on April 14, 1960, and at No. 277, May Sessions, 1960, on May 13, 1960. Defendant was subsequently tried, convicted, and sentenced.

A drug addict called defendant in the present of the police and made arrangements to meet defendant on a street in Rankin, Allegheny County, whereupon defendant was arrested at about 7 p.m. on March 31, 1960, near his room at 205 Miller Street, Rankin. Later

[ 198 Pa. Super. Page 66]

    that evening the police entered the room at 205 Miller Street, where narcotics were found in a locked box, the key to which defendant had in his possession. This additional room rented by defendant was about a block away from the police station.*fn2

No motions were made prior to indictment or prior to trial attacking the validity of the search or the admissibility of the evidence.

At the trial defendant's counsel made an oral motion to exclude the narcotics on the ground they were obtained through an illegal search and seizure. The motion was denied. Motions in arrest of judgment and for a new trial were filed, and refused by the court below; sentence was deferred and then imposed on August 18, 1961.Defendant has appealed.

Appellant contends that the evidence, including heroin, obtained by the police through a search of his room at 205 Miller Street without a warrant should have been excluded as obtained through an illegal search and seizure, citing in this Court the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

Appellant's trial took place on November 7, 1960. His motions in arrest of judgment and for a new trial filed on November 14, 1960, raised no question concerning evidence obtained through an alleged illegal search and seizure. Consequently, in its opinion filed on July 18, 1961, the court below, in disposing of appellant's post-conviction motions, did not pass upon

[ 198 Pa. Super. Page 67]

    the question of evidence obtained through an alleged illegal search and seizure. Subsequently, on August 14, 1961, appellant made a belated and unsuccessful attempt in the court below to raise the question of the admissibility of the evidence obtained through the search.

The record shows that appellant and his counsel knew the nature of the evidence and that it was seized at or about the time of appellant's arrest. See DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614; Application of Bogish, 69 N.J. Super. 146, 173 A.2d 906, 909. It may be that the question of the alleged illegally obtained evidence was not timely raised, but the fact that its admission was not properly raised in the court below at all is controlling on appeal. Com. v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530; Com. v. Gomori, 192 Pa. Superior Ct. 325, 330, 161 A.2d 649. Matters not raised by proper post-conviction motions or considered in the court below cannot be invoked on appeal in this Commonwealth even though they involve constitutional questions. Com. v. Klick, 164 Pa. Superior Ct. 449, 453, 65 A.2d 440; Com. ex rel. Hellinger v. Day, 178 Pa. Superior Ct. 232, 236, 116 A.2d 76, certiorari denied 350 U.S. 941, 76 S.Ct. 316, 100 L.Ed. 821. Hence, application of Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, is not here involved. "... the Due Process Clause has never been perverted so as to force upon the forty-eight States a uniform code of criminal procedure. Except for the limited scope of the federal criminal code, the prosecution of crime is a matter for the individual states. The Constitution commands the states to assure fair judgment. Procedural details for securing fairness it leaves to the states. It is for them, therefore, to choose the methods and practices by which crime is brought to book, so long as they observe those ultimate dignities of man which the United States Constitution

[ 198 Pa. Super. Page 68]

    assures." Carter v. Illinois, 329 U.S. 173, 175, 67 S.Ct. 216, 91 L.Ed. 172, 175.

Moreover, in any event, it would seem that the trial court could properly rely on the law at the time of trial and conviction as announced in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, on the question of illegally obtained evidence in state courts prior to Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, decided June 19, 1961, and overruling Wolf v. Colorado on this question.*fn3

As Mr. Justice FRANKFURTER said in Abel v. United States, 362 U.S. 217, 235, 236, 237, 80 S.Ct. 683, 4 L.Ed.2d 668, 684, 685, referring to the law announced by the Supreme Court of the United States in the earlier search and seizure cases of Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653: "In view of their judicial context, the trial

[ 198 Pa. Super. Page 69]

    judge and the Government justifiably relied upon these cases for guidance at the trial; ... It would, under these circumstances, be unjustifiable retrospective lawmaking for the Court in this case to reject the authority of these decisions. ... Judged by the prevailing doctrine, the search of petitioner's hotel room was justified." See Warring v. Colpoys, 74 App.D.C. 303, 122 F.2d 642, 646, 136 A.L.R. 1025 (D.C. Cir. 1941), certiorari denied 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543; Gaitan v. United States, 295 F.2d 277 (September 27, 1961); Application of Bogish, 69 N.J. Super. 146, 173 A.2d 906. See, also, Com. v. Scoleri, 399 Pa. 110, 129, 130, 160 A.2d 215.

It would be unjust to hold the trial court to be in error in basing its action on decisions then in force, and where appellant failed to question the conduct of his trial in proper post-conviction motions.*fn4

Finally, we find no error in permitting the cross-examination of policy officers and the admission of testimony concerning appellant's failure to deny incriminatory statements made in appellant's presence. Com. v. Bolish, 381 Pa. 500, 523, 113 A.2d 464.

Disposition

Judgment of sentence is affirmed, and it is ordered that appellant appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with his sentence or any part thereof which had not been performed at the time the order of supersedeas was entered.


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