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decided: October 3, 1975.



Ronald W. Morrison, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., A. J. Gafni, Maxine J. Stotland, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion joined by Jones, C. J., and Eagen, J. Roberts, J., filed a dissenting opinion joined by Manderino, J.

Author: Nix

[ 464 Pa. Page 119]


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.*fn1

Relying upon this Court's decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny,*fn2 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).

[ 464 Pa. Page 120]


Initially, the Commonwealth requests that we reconsider our decisions*fn3 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.*fn4 The Commonwealth argues that in applying the Futch exclusionary rule in this manner, we are giving the procedural rule retroactive application.*fn5 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.

[ 464 Pa. Page 121]

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.


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

[ 464 Pa. Page 122]

    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:

[ 464 Pa. Page ]

"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 been without 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

[ 464 Pa. Page 123]

. . . 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 ...

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