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COMMONWEALTH PENNSYLVANIA v. RODGER MCFEELY (12/12/85)

decided: December 12, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
RODGER MCFEELY, APPELLANT



Appeal from the Order entered by the Superior Court of Pennsylvania at No. 159 Pittsburgh, 1982, dated May 4, 1984, affirming the Judgments of Sentence entered January 12, 1982, of the Court of Common Pleas, Criminal Division, of Allegheny County, Pennsylvania at Nos. CC7701055 and CC7701122A. 328 Pa. Super. Ct. 553, 476 A.2d 62 (1984). February 12, 1982, Appeal docketed in Superior Court at No. 159 Pittsburgh, 1982. October 1, 1984 Appeal allowed at No. 150 W.D. Allocatur Docket, 1984. October 4, 1984, Appeal docketed. July 30, 1985, Petition to Certify and to Transmit the "Paperbooks" in the Prior Direct Appeal to the Superior Court as a Supplement to the Record in the present Appeal granted. Sentence - 2nd degree Murder - IFP. C.P. Allegheny - Criminal Division, John W. O'Brien, J. - Common Pleas Ct.; James R. Cavanaugh, Justin M. Johnson and Harry M. Montgomery, JJ. - Superior Court.

COUNSEL

John H. Corbett, Jr., Paulette J. Balogh, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Pittsburgh, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a concurring opinion. Hutchinson, J., filed a concurring opinion. Zappala, J., filed a concurring opinion.

Author: Flaherty

[ 509 Pa. Page 396]

OPINION OF THE COURT

In this case a confessed killer seeks to have his conviction for second degree murder reversed and a new trial granted on the theory that his confession should have been suppressed. McFeely's argument is that his confession was obtained as a result of an illegal arrest, and that the decision of this Court in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), invalidating warrantless arrests made in the home of the arrestee, absent exigent circumstances, should be applied retroactively to his case. McFeely's arrest occurred in the early hours of the morning, without a warrant, in a third-party dwelling.

McFeely was arrested at 5:25 a.m. on February 6, 1977 in the home of his brother, after police received information that McFeely had shot and killed decedent. The informant was McFeely's co-actor. After McFeely was taken to the police station, he was told that police had the suspected murder weapon in their possession and that they had his co-actor in custody. McFeely requested to see both the gun and the co-actor. Both were produced, and McFeely subsequently gave a statement to the police.

According to McFeely's confession, he and the co-actor devised a plan to steal drugs from the decedent, whereby McFeely, posing as a police officer, would gain admittance to decedent's apartment and confiscate decedent's drugs. McFeely, acting pursuant to this plan, carrying a badge and a loaded revolver, knocked at the door of decedent's apartment and was admitted. A struggle for his loaded gun ensued, and decedent was shot. McFeely then took marijuana from the decedent's apartment, ran from the scene,

[ 509 Pa. Page 397]

    and discarded his gun and the marijuana as he ran. Later McFeely and the co-actor retrieved both the gun and the marijuana. The co-actor took the gun and the pair split the marijuana.

McFeely's first trial for murder, robbery, firearms violations, and criminal conspiracy was begun on September 14, 1977. A mistrial was declared the next day, and subsequently, McFeely's trial counsel withdrew from the case. New counsel filed post-trial motions, which were denied, and on April 8, 1980, McFeely's second trial commenced. A jury sitting in the Court of Common Pleas of Allegheny County, Criminal Division, convicted him of second degree murder and other charges contained in the second information. Second counsel filed post-trial motions, and then a newly retained third counsel filed additional post-trial motions which, for the first time, asserted that McFeely's arrest was illegal. Post-trial motions were denied and McFeely was sentenced to life imprisonment. Superior Court, 328 Pa. Super. 553, 476 A.2d 62, affirmed the judgment of sentence, and present counsel, McFeely's fourth, filed the present Petition for Allowance of Appeal before this Court.

The principal question to be answered on this appeal is whether we are to give retrospective effect to a decision of this Court in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), which invalidated warrantless arrests made in the home of the arrestee, absent exigent circumstances. The Williams case relied on the Fourth Amendment to the United States Constitution, not state law, to invalidate such an arrest. Two years later, in Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), we addressed the question of whether the rule in Williams was to be applied retroactively, and we held that the Williams rule was not to be applied to arrests made before November 18, 1978, the date on which Williams was filed. Id., 490 Pa. at 473, 417 A.2d at 136. McFeely's arrest occurred on February 6, 1977.

[ 509 Pa. Page 398]

Although Miller would seem to settle the question of whether the Williams rule can be applied to the McFeely case, the question of retroactivity arises now because of two decisions of the United States Supreme Court. Two years after our decision in Williams, the United States Supreme Court, in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1981), announced a decision on warrantless arrests in the home which mirrored our earlier decision in Williams. Such warrantless arrests are not permitted under the Fourth Amendment, absent exigent circumstances, when they take place in the arrestee's home. In a subsequent case, United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), a sharply divided Court held that its decision in Payton was to be given retroactive effect. This holding, of course, contradicts our holding in Miller, and gives rise to the question in this case as to whether we are bound by the decision in Johnson to reverse our earlier decision in Miller.

As a threshold matter, we observe that the rule of the United States Supreme Court in Johnson that their Payton case is to be given retroactive effect does not compel a reversal in Commonwealth v. Miller. It is axiomatic that this Court is bound by the United States Supreme Court's interpretation of minimum standards required by the Constitution of the United States. However, the Johnson Court itself, citing its own prior decisions, states: "'[T]he federal constitution has no voice upon the subject' of retrospectivity." 457 U.S. at 542, 102 S.Ct. at 2582, 73 L.Ed.2d at 208. This Court has also observed: "'[T]he Constitution neither prohibits nor requires ...


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