George P. Bannon, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Jane C. Greenspan, Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. 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.
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.*fn1 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.*fn2 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.*fn3 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,*fn4 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.*fn5 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 part*fn6 on the allegation that on the day "of the interrogation by the police, the defendant ...