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COMMONWEALTH PENNSYLVANIA v. BRUCE STEWART BURCHARD (01/24/86)

filed: January 24, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
BRUCE STEWART BURCHARD, APPELLANT AND DANIEL JOEL VAN SLOCHEM, APPELLANT



APPEAL FROM THE JUDGMENT OF SENTENCE MARCH 31, 1982 IN THE COURT OF COMMON PLEAS OF CHESTER COUNTY, CRIMINAL NOS. 632 and 633 - 79

COUNSEL

Theodore Simon, Philadelphia, for Burchard, appellant (at 985).

William J. Honig, Norristown, for Van Slochem, appellant (at 986).

Phyllis R. Streitel, Assistant District Attorney, West Chester, for Commonwealth, appellee (at 985 and 986).

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Cirillo, Olszewski, Beck and Tamilia, JJ. Spaeth, President Judge, joined in this opinion before the expiration of his term on the court.

Author: Cirillo

[ 349 Pa. Super. Page 457]

This is a consolidated appeal from the judgments of sentence entered by the Court of Common Pleas of Chester County. Appellants, Daniel Van Slochem and Bruce Burchard, were arrested and charged with possession of controlled substances,*fn1 possession of controlled substances with intent to deliver,*fn2 and criminal conspiracy.*fn3 Following a bench trial, they were convicted on all counts.

In March of 1979, the Pennsylvania State Police obtained a search warrant for a Chester County residence; Burchard and Van Slochem were identified as residents of the house.*fn4

[ 349 Pa. Super. Page 458]

The warrant authorized the seizure of marijuana, related narcotics paraphernalia, and records and monies of narcotic transactions. Probable cause for the issuance of the warrant was based in part on information provided to the State Police by a confidential informant and in part on other information gathered as a result of an investigation.

The State Police arrived at the residence and knocked at the kitchen door. Burchard, alone in the house, peered through a curtain hanging on the door. The troopers identified themselves and stated their purpose. Discerning no attempt by Burchard to open the door, and believing that the marijuana and other drug related items could easily be destroyed, the officers decided to enter by force. After the troopers made several attempts at breaking in the door, Burchard voluntarily admitted them. Fifteen to twenty minutes later, Van Slochem arrived at the residence. The search revealed: 788 pounds of marijuana; 552 grams of hashish; $1,580.00 in cash; drug paraphernalia including scales, cigarette papers, boxes of sandwich bags, and a variety of weapons.

Appellants filed omnibus pre-trial motions alleging inter alia, an illegal search and seizure and illegally obtained statements. In particular, appellants challenged the validity of the warrant vis-a-vis the sufficiency of the affidavit. At the hearing on the suppression motion, appellants' statements were suppressed as was certain physical evidence. All items of contraband were allowed into evidence.

A non-jury trial followed the suppression hearing. During trial the contraband that was the subject of appellants' motion to suppress was admitted into evidence without any objection by appellants. Burchard and Van Slochem were convicted on two counts of possession of a controlled substance, two counts of possession of a controlled substance with intent to deliver, and one count of criminal conspiracy. Post-trial motions were denied. Appellants were sentenced

[ 349 Pa. Super. Page 459]

    to ten to twenty-three months imprisonment and directed to pay the costs of prosecution.

These appeals were certified to the court en banc to resolve the following issue: when a pre-trial suppression motion is denied, must a defendant object at trial to the admission of that evidence in order to preserve the suppression issue for appeal?

Our Courts have repeatedly held that issues must be preserved at each and every stage of review; otherwise, they are deemed waived and cannot subsequently be raised on appeal. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 1123(a); Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983) (issues raised in post-trial motions, but not briefed or argued were waived); Commonwealth v. Giles, 500 Pa. 413, 456 A.2d 1356 (1983) (issues not included in post-verdict motions were waived); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982) (brief raising allegations of error, in absence of written post-verdict motions, preserves no issue for appellate review); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (plurality) (only those issues included in post-verdict motions are preserved for appellate review); Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) (timely objection to sentencing court needed to preserve sentencing issue (see now Pa.R.Crim.P. 1410)); Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976) (when there is a timely objection to prosecutor's statements which is sustained, but there is no request for a mistrial or curative instruction, issue is waived; defendant was granted all requested relief); Commonwealth v. Hassine, 340 Pa. Super. 318, 490 A.2d 438 (1985) (issues raised in post-trial motions, but not briefed, argued, or addressed by trial court, are waived); Commonwealth v. Broadie, 489 Pa. Super. 394, 489 A.2d 218 (1985) (failure to file a motion to modify sentence waives all issues except legality of sentence); Commonwealth v. Jackson, 336 Pa. Super. 609, 486 A.2d 431 (1984) (failure to timely challenge jury array results in waiver of any objection to jury); Commonwealth v. York, 319 Pa. Super. 13, 465 A.2d 1029 (1984) (advancing a

[ 349 Pa. Super. Page 460]

    new or different theory of relief for the first time on appeal results in a waiver of that issue); Commonwealth v. Russell, 326 Pa. Super. 346, 473 A.2d 1383 (1984) (failure to make specific objection where jury instructions have been timely offered and refused, issue is waived).*fn5

The doctrine of waiver is now a critical procedural mechanism that fosters meaningful appellate review. With the abolition of principles such as "basic and fundamental error,"*fn6 the necessity of raising a specific objection at each and every stage of a proceeding is of paramount importance. Indeed, in the criminal context, failure to preserve an issue for appeal may give rise to a finding of ineffective assistance of counsel. See, e.g., Commonwealth v. West, 334 Pa. Super. 287, 482 A.2d 1339 (1984); Commonwealth v. Boyd, 315 Pa. Super. 308, 461 A.2d 1294, aff'd in part, rev'd in part on other grounds, 504 Pa. 32, 470 A.2d 540 (1983). Without the stringent application of the waiver doctrine,

[a]ppellate court consideration of issues not raised in the trial court results in the trial becoming merely a dress rehearsal. This process removes the professional necessity for trial counsel to be prepared to litigate the case fully at trial and to create a record adequate for appellate review. The ill-prepared advocate's hope is that an appellate court will come to his aid after the fact and afford him relief despite his failure at trial to object to an alleged error. The diligent and prepared ...


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