*1 contrary reasoning; unfortunately, Winebrenner at 114. Pa. at 84 n.7, was true. 439 majority’s present My pleasure realization with the unfortunately tempered by its of the former error is change relegation a mere establish- the law to of may evidentiary there be ment of a rule. While new justification majority’s hold for the reluctance to some change mandated the Federal Constitu- that this is recognize there is no excuse its to- failure tion, requirements clear of the Constitution of this Com- monwealth. The Due Process Clause of Article Sec- I, Pennsylvania Constitution must at least require judgment peers guided by of one’s be type intelligible Nothing some standard. is more adjudicatory process basic to the than the standard to employed the finder of fact the determination guilt employed or innocence. Where the standard is completely contradictory unintelligi- render so guidance finder left fact without and due ble, process is offended. pertaining majority’s
My
to the
views
comments
quantum
a certain
evidence must be introduced
capacity
specific
before the defendant’s
to form a
intent
fully
my concurring
issue have
set forth
opinion v.
Commonwealth
Demmitt,
Commonwealth, *2 November Argued Before C. Jones, J., Eagen, Nix O’Brien, Boberts, Pomeroy, Mander- JJ. INO, with, him Attorney, District Assistant Rendell,
E. Goldblatt, Assistant II. and Steven Murray G. Joseph Assistant First Richa/rd A. Sprague, Attorneys, District Attorney, District Arlen Specter, District Attorney, appellant. Commonwealth, Makadon, Arthur K. Schwarz, G., M. P. Stanley Stein, M. for appellee. Milton Opinion 1974: Pomeroy, July 16, the nar- presents Commonwealth This of a defendant which whether statements row a time when at citizens private volunteered were as to mental such allegedly, the defendant’s state was, matter subject to the testify render him suppressed pre-trial pursuant may of those statements of Criminal Rules Pennsylvania to Rule *3 Procedure. charged Cunningham, Cornelius
Appellee, and three of assault with of murder counts one count hear- at the testimony suppression to kill. The intent in the afternoon hours early indicates that, ing Daryl shot and killed one 1971, appellee March 22, Temple University the basement of Hospital, Coleman On out of that Cun- Philadelphia. way institution, his to a individuals seated a turned ningham group I “Your friend’s dead. killed just hallway stated, hours Approximately friend.” two later, Cunning- your a in the guard himself to Raymond ham surrendered At this he handed the Project. Housing time, Rosen that he had shot several people. a and stated gun guard at but Temple, prior his sur- shooting After guard, allegedly the project Cunningham render people. three other At approximately wounded shot was taken 1971, appellee on March into p.m. 3:00 Philadelphia members of the Police Depart- custody Ms he During in-custody gave ment. several period, incriminating admissions the police.
Cunningham pre-trial suppress filed a motion to evidence of his statements in-custody out-of-custody and the gun. an Following evidentiary hearing pursu- ant to Rule entered an court order suppressing on the the de- in-custody statements that ground fendant was a his incompetent to make valid waiver of Miranda1 held it under advisement the motion rights; suppress physical evidence and the volunteered statements. out-of-custody Upon further consideration, the court ruled the physical evidence admissible but suppressed the statements on the ground they that were at made a time when the defendant’s state of mind was such render him as to to make such admissions. The Commonwealth does dispute as to the statements made rulings police while but contends that the pre-trial custody, declaration out-of-custody was We improper.2 agree.3 Arizona, Miranda v. S. Ct. 384 U.S. L.Ed.2d appellee untimely contends herein was quash filed, a motion to filed. was it not on While ground ground untimeliness, but on the interlocutory can, however, order. We notice the defect from goes nevertheless, appellate jurisdic- of untimeliness since Having record, Court. reviewed we have concluded quashed. not be should Due to error in the Attorney, suppression judge, the order office District September 7, 1972, made her on and delivered to the file room *4 Attorney’s 4, 1972, brought on of the District office October was not any lawyer of in that to the attention office until five weeks after promptly, The mistakenly, made. Commonwealth then was but
applied pro appeal, court for tunc, to the lower leave to nunc to granted, later, correctly, The motion was at first this Court but and cognizance court has no refused since lower over allowance of appeals This latter order to this was filed on March by accompanied opinion question an and both on the 1973 of at- or his defendant
Rule “The provides: 323(a) to suppress the court make to torney may application in violation been obtained any to have alleged (Emphasis rights.” of defendant’s pur- explains The Rule 323 comment added.) designed “The of the rule: rule pose scope of for the evi- provide suppression one single procedure right support suppression of order and also days entry thirty September of taken 7th. The within of the order of March pass judgment of mistakes need not on the
We combination delay taking appeal, for it this which caused the seven-month appears and, paradoxically, imperfect, that that the record is still technically Paragraph premature. is, fact, A of Rule provides judgment, sentence, order or of this Court that “No upon ap appealable decree shall be until it has been entered docketing propriate of docket in court below”. It is this act 'the “entry” Appellate of order under which constitutes ap 1211.502(a) (“. Court Jurisdiction Act of P.S. . . an any thirty days peal under this act from order shall be filed within entry”). Slotsky Gellar, 148, 151, See of its explained record, that are not on this For reasons original yet although docketed, of has not order been support opinion of court in of it has been. Rather than physically remand to the order to be entered on the docket allow delay, further consider that done thus cause we will which prothonotary done, and direct the of been court should have pleas, remanded, common when this record to docket the order being September 7, as of March that the date when opinion pleas order, of common filed its the court relative that refusing pro order nunc and also its tunc. believe We just of this date is fair to all the selection concerned case, but, disposition, of this all the circumstances under any precedent for the mean to establish future. do not September docketing order of could 7th and should have promptly, party and could have been attended to either done or the court. question appellee’s here concerned with the areWe only propriety competence, ruling but mental pursuant admissibility Rule 323 as it bears on statement. the out-of-court
402
dence
to
in
alleged
have
obtained
violation
defendant’s
constitutional
It does not con
rights.
template
of evidence
because its
simply
introduction may be
or
constitute
prejudicial
may even
or
harmful
error. The rule
plain
was revised
cover
violations of Mapp v.
81 S. Ct.
367 U.S.
Ohio,
1684,
6 L.Ed.2d
643,
1081
Escobedo v.
84
(1961);
Illinois,
S. Ct.
378 U.S.
12 L.Ed.2d
Jack
1758,
977
478,
(1964);
son v.
84 S. Ct.
12 L.Ed.2d
Denno,
U.S.
1774,
368,
Appellee not does assert that his unsolicited state- private ments to citizens were “obtained” in violation set any rights as forth the enumer- ated or in any cases case. main- subsequent he Eather, tains that introduction his statements at trial would be a process. violation due It may be as well argued error any rulings evidence would be so viola- It to this distinction precisely tive. un- between obtained evidence and ad- constitutionally erroneously mitted comment to Eule 323 is direct- ed.
As Mr. Justice O’Brien
stated,
announcing
Mozzillo,
Commonwealth v.
decision
171, 175-76,
where a
(1971),4
while incarcerated because
defendant,
had boasted
his jailer
stand
trial,
crime he
are
had committed:
not faced
“Thus,
with a con-
Eagen
result;
concurred in the
Mr. Chief Justice
dissented; Mr. Justice Cohen
and Mr.
Justice Roberts
Bell
did
participate
in the decision.
ap-
fession
attendant
whether
rights
his constitutional
pellant waive
competent
of coun-
the advice
self-incrimination without
against
make these
competency
sel.
appellant’s
Instead,
capacity
of testimonial
admissions is
rules
governed
concerned with trust-
which in
are
turn
principally
*6
that no
Noting
ques-
worthiness.”
443 Pa. at
nor
insanity
involved,
any question
on
of an
Justice O’Brien went
understanding
oath,
be
that:
must
consid-
say
only questions
“the
which
in
ered
mental health at the time
appellant’s
analyzing
think-
of his
his
memory,
admissions
whether his
[are]
made it
ing processes
reality
likely
or his orientation to
Mr. result. Manderino Opinion Dissenting Roberts: quash and would I dissent Commonwealth’s ap- announcing judgment of Opinion peal. delay as it that the concedes, seven-month must, filing September from the trial court’s solely 7, 1972 order was due Commonwealth’s negligence. quashing appeal, Not dis- therefore, accepted appellate practices ig- torts and sub silentio prior holding untimely filing all nores our cases jurisdiction. of an divests this Court of Assuming the assertion correct that the instant prematurely is also there no is still taken, quashing excuse for An it. to fairness and justice is offered rationalize the result reached Opinion announcing judgment. However, nothing explain in exists to fashion what the entertain- ing premature appeal just. of this is either fair or
Obviously justices joining the three troubled, Opinion announcing judgment seek to avoid impact by stressing of their that it not meant view precedent. It would naive indeed to think that long supposedly or however incantation, hard, *7 magic precedent” litigants words “this is not will deter appeals having improperly intent on their considered relying from on the instant case. If ad this Court’s judications something are to be other than “a restricted good day only,”* and train railroad then ticket, surely similarly-situated litigants all are entitled to today appel the same treatment accorded the instant lant. join
Mr. Chief Justice Jones and Mr. Nix dissenting opinion. in this
* Allwright, 649, 669, (1944) U.S. 64 S. Ct. Smith Roberts, J., dissenting). (Owen J.