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decided: September 18, 1979.


Nos. 61 and 65 January Term, 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of March Sessions, 1972, Nos. 361-366.


John Rogers Carroll, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., David R. Strawbridge, Asst. Dist. Atty., Nancy D. Wasser, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion in which O'Brien, J., joins. Manderino, J., filed a dissenting opinion. Pomeroy, J., did not participate in the consideration or decision of this case.

Author: Larsen

[ 486 Pa. Page 301]


This is an appeal from judgments of sentence imposed upon Walter Dobson, appellant, for his convictions of murder of the first degree, aggravated assault with intent to kill, aggravated robbery and burglary.*fn* The pertinent facts are as follows.

Appellant and one Charles Peters were detained by police on December 15, 1971, and questioned at police headquarters in regard to their knowledge of a robbery, assault and felony murder. After more than fifteen hours of questioning, each of the men gave a signed inculpatory statement to the police. A warrant was issued for a search of the home of appellant's mother. The probable cause for the search warrant consisted of the two inculpatory statements. The resultant search produced two shotguns which had been used in the commission of the crimes and audio equipment which had been taken during the robbery.

Appellant filed a motion to suppress his statement, alleging it had been the product of an "unnecessary delay" between his arrest and his arraignment, such delay being prohibited by the prevailing Pa.R.Crim.P. 118. While agreeing there was an unnecessary delay, the court denied appellant's suppression motion, finding no reasonable relationship between the evidence (the statement) and the period of delay.*fn1

During the course of his own prosecution, co-defendant Peters was granted a motion for suppression of his own statement as the product of an "unnecessary delay". The Commonwealth appealed the suppression order unsuccessfully. In Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973), this Court affirmed the lower court's determination that an unnecessary delay had occurred, requiring the exclusion of Peters' pre-arraignment statement from his trial.

[ 486 Pa. Page 302]

Appellant was tried and convicted of first degree murder, aggravated assault with intent to kill, aggravated robbery and burglary. Post-trial motions were denied and Dobson appealed to this Court. This Court held that the lower court erred in refusing to suppress appellant's statement and in allowing the statement to be used at trial. Thus, this Court granted a new trial. Commonwealth v. Dobson, 465 Pa. 91, 348 A.2d 132 (1975).

On remand, appellant renewed his motion to suppress the statement, and he further moved to suppress the fruits of the search of his mother's home, i. e. the physical evidence which had been seized there. There had been no such motion to suppress this physical evidence at the original suppression hearing.*fn2 The suppression court, in accordance with this Court's holding, Commonwealth v. Dobson, supra, granted suppression of appellant's statement. However, it refused to suppress the physical evidence obtained pursuant to the aforementioned search warrant. Appellant argued that the warrant was illegal because probable cause for its issuance was based on the suppressed statements of himself and of co-defendant Peters.

At the second trial, the physical evidence obtained through the search executed at appellant's mother's home was admitted into evidence. Appellant was again convicted of murder of the first degree, aggravated assault with intent to kill, aggravated robbery and burglary. Post-verdict

[ 486 Pa. Page 303]

    motions were denied and the present appeal was taken to this Court.*fn3

Appellant argues that the search of his mother's house was invalid because probable cause for the warrant could not be based solely on the illegally obtained statement of his co-defendant,*fn4 and that, therefore, the physical evidence obtained should have been excluded as the fruits of that illegality under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and its progeny.

The Commonwealth initially responds that appellant has waived the issue of admissibility of the physical evidence produced by the search because no motion was made to suppress that evidence at the original suppression hearing held prior to appellant's first trial. We agree. Every accused person is afforded an opportunity to seek suppression of any and all evidence allegedly obtained in violation of his constitutional and other rights in this Commonwealth. Appellant was afforded this opportunity and did not seek to suppress the fruits of the search. No excuse is offered, nor does any exist, for his failure to do so.*fn5

The then applicable Rules of Criminal Procedure required, as do the present rules, that a defendant state specifically and with particularity the evidence sought to be suppressed and the grounds, facts and events in support of the motion. Pa.R.Crim.P. 323(d), effective March 18, 1972. Rule 323(b) provided then, as now, that if timely application is not made,

[ 486 Pa. Page 304]

    the issue of admissibility of such evidence "shall be deemed to be waived." These rules were not adopted to construct procedural impediments to presentation of the accused's defense but were, rather, promulgated in order to achieve a proper balance between the preservation of constitutional and other rights of the defendant and the orderly and efficient administration of the criminal justice system. These concerns have been paramount in the many decisions of this Court imposing stringent waiver requirements. See, e. g. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978). As we stated in Commonwealth v. Mitchell, 464 Pa. 117, 124, 346 A.2d 48, 52 (1975), "[a]ppellate 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."

At a minimum, the "specificity" and "particularity" demands of Rule 323(d) required that, in order to have preserved the issue of the admissibility of the physical evidence, appellant would have had to have set forth in his motion, and have argued at the hearing, the fact that a seizure of the evidence had occurred pursuant to a search warrant and the grounds now asserted that the seizure was invalid because probable cause for the warrant had been based solely on illegally obtained statements. See Commonwealth v. Baylis, supra (post- McCutchen case where appellant, who failed to move to suppress on the grounds that he was a minor and was not accompanied by parents or a guardian, was held to have waived this claim even though validity of statement was raised generally); Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431 (1978) (appellant challenged validity of Miranda waiver, but not on specific grounds that he should have been rewarned of his Miranda rights periodically; this issue held waived).

Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976), while factually distinguishable, is legally controlling. That case involved the Municipal Court system of Philadelphia

[ 486 Pa. Page 305]

County. The Pennsylvania Constitution, Article V, Section 16(r)(iii), after conferring jurisdiction in certain criminal cases to the Municipal Court, provides that a defendant shall "have the right of appeal for trial de novo including the right to trial by jury to the trial division of the court of common pleas." Appellant in that case challenged the constitutionality of a local court rule which provided that pre-trial suppression motions would be heard by a judge sitting as a common pleas judge, but that "the motion may not be reinstated as part of the appeal [to common pleas court]."

There we held that, under the accepted use of the word "trial" as used in this Commonwealth, the right to a de novo trial guaranteed by Article V, ยง 16(r)(iii), "was not intended to encompass recognized pre-trial proceedings." 469 Pa. at 495, 366 A.2d at 898. See also Commonwealth v. Sites, 427 Pa. 486, 235 A.2d 387 (1967). Therefore, we held that a defendant could not relitigate at the trial de novo issues raised, or which could have been raised, at the Municipal Court suppression hearing. Furthermore, Harmon noted that our rules of criminal procedure have reinforced the distinction between pre-trial matters and trial matters.

The sound reasoning and result of Harmon is equally applicable to the present case. Appellant received a full and fair opportunity to litigate all suppression issues prior to his first trial. No reason exists to justify granting appellant a second opportunity to challenge evidence and to litigate issues which could have and should have been raised at the initial pre-trial suppression hearing.*fn6

[ 486 Pa. Page 306]

The rules regarding pre-trial suppression hearings are "designed to provide one single procedure for the suppression of evidence alleged to have been obtained in violation of the defendant's rights." Comment to Pa.R.Crim.P. 323 (emphasis added). The failure of appellant to adhere to those rules provides a circumstance where invocation of the doctrine of waiver, and Rule 323(d) is both logically required and entirely consistent with the post-Clair waiver cases which foster judicial economy and fairness by requiring that claims be raised at the earliest possible stage of criminal proceedings. For the foregoing reasons, any review of appellant's present claims would be inappropriate.

Judgments of sentence affirmed.

ROBERTS, Justice, concurring.

I agree with the view of the plurality presented in the Opinion Announcing the Judgment of the Court that judgments of sentence should be affirmed. But I must write separately to express my disagreement with the plurality's reasoning.


At his first trial, appellant Walter Dobson moved to suppress a written statement obtained from him by the police. The court of ...

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