COMMONWEALTH of Pennsylvania, Appellee, v. Rodger McFEELY, Appellant.
Supreme Court of Pennsylvania.
Decided Dec. 12, 1985.
502 A.2d 167
Submitted Sept. 19, 1985.
NIX, C.J., filed a concurring opinion.
NIX, Chief Justice.
I agree with the result reached by the majority that Section 322 of the Business Corporation Law, Act of May 5, 1933, P.L. 364, as amended,
I believe, however, that the majority unnecessarily reached the issue, not raised by the parties, whether the PUC has the power to condemn the subject property in a court of equity. As we found in Redding v. Atlantic City Electric Company, 440 Pa. 533, 269 A.2d 680 (1970), here that determination is unnecessary for the disposition of this appeal.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
FLAHERTY, Justice.
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 McFeеly‘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 revоlver, 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,
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 commenсed. 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 dеcision 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
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 retrospective effect’ for decisions expounding new constitutional rules affecting criminal trials.” Commonwealth v. Miller, 490 Pa. at 472, 417 A.2d at 136. (Citations omitted.)
Moreover, the decision in United States v. Johnson, which gives retroactive effect to Payton, is endorsed by what Mr. Chief Justice Nix has referred to as “[a] tenuous majority” of the United States Supreme Court. Commonwealth v. Geschwendt, 500 Pa. 120, 130, 454 A.2d 991, 996 (1982). This Court, of course, accords deference to the
The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice.
We then went on to discuss the applicability of these concerns to cases involving the exclusionary rule:
The purpose to be served by the new rule should receive primary consideration. “Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect.” Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion). Conversely, the same standard “strongly supports prospectivity for a decision amplifying the evidentiary exclusionary rule,” Desist [v. United States] supra 394 U.S. [244] at 249, 89 S.Ct. [1030] at 1033 [22 L.Ed.2d 248], the primary purpose of which is to deter unlawful police conduct.
490 Pa. at 472-73, 417 A.2d at 136. We continue to believe that the considerations set out in Miller provide a sound basis for deciding when a rule of law is to be given retroactive effect, and thus, we decline to adopt the view of
However, even if we were to favor retroactive application of the Williams-Payton law of warrantless arrest, McFeely‘s confession would not be automatically suppressed. The basic law of the suppressibility of evidence which is obtained as a result of an illegal arrest was articulated in Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), where the United States Supreme Court held that certain evidence seized as a result of an illegal arrest must be suppressed. However, as this Court stated in Commonwealth v. Bishop, “It does not necessarily follow that all confessions or admissions secured from an illegally arrested person are per se inadmissible as trial evidence.” 425 Pa. 175, 182, 228 A.2d 661, 665 (1967). Whether particular evidence is admissible will be determined by the facts of each case. In Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978), we set out factors which are to be considered in making this determination:
The United States Supreme Court in Brown v. Illinois, supra, noted several factors to be considered in scrutinizing an individual case: (1) whether Miranda warnings were given; (2) the “temporal proximity of the arrest and the confession“; (3) “the presence of intervening circumstances“; and, (4) “the purpose and flagrancy of the official misconduct“. The voluntariness of the statement is, of course, a threshold requirement, Brown v. Illinois, supra 422 U.S. at 604, 95 S.Ct. at 2264, and the confession must also be “free of any element of coerciveness due to the unlawful arrest.” Commonwealth v. Bishop, supra [228 A.2d] at 666. The burden of showing admissibility rests on the prosecution. Brown v. Illinois, supra; Commonwealth v. Barnett [471 Pa. 34, 369 A.2d 1180 (1977)], supra; Commonwealth v. Wright [460 Pa. 247, 332 A.2d 809], supra; Commonwealth v. Bishop, supra.
The suppression record supports the determination that McFeely was given Miranda warnings, and that his confes-
We conclude, therefore, that the confession was not erroneously admitted into evidence, and in any case, we decline to overrule our decision in Commonwealth v. Miller, supra, which holds that the rule in the Williams case has no retroactive application.
Order of the Superior Court is affirmed.
LARSEN, J., filed a concurring opinion.
HUTCHINSON, J., filed a concurring opinion.
ZAPPALA, J., filed a concurring opinion.
LARSEN, Justice, concurring.
I concur in the result, but write separately because I think it is unnecessary for the majority to even discuss the issues which it considers to be decisive in this case. I would hold that appellant has waived his right to challenge both the legality of his arrest and the effect of any illegality, and would, therefore, not reach either of the issues discussed in the majority opinion. See:
I join that portion of the majority opinion which states that appellant‘s confession is admissible because it was sufficiently purged of taint from the illegal аrrest. However, I cannot agree with the opinion‘s analysis of United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), and its effect. In that section of its opinion, the majority concludes we are not bound by Johnson because the tenuous majority which it commanded concluded that the question of retroactivity is not governed by the United States Constitution.
The application of newly announced judge-made law to pending cases is often loosely referred to as a “retroactive” application of the newly stated rule of decision. Somewhat cloudy distinctions are then drawn between those rules which were foreshadowed and those which were not. Johnson, 457 U.S. at 549, 551, 102 S.Ct. at 2587. Such loose reference confuses the normal and proper common law applicаtion of rules of decision to all cases not finally decided at the time the rule is announced with the relatively recent, and more novel, notion that rules of decision created by the federal courts in a constitutional context after a conviction has become final, should be applied in collateral attack, on that final conviction.
To my mind, it is only the application of new rules of decision to final judgments of conviction in a collateral attack on them which is retroactive in the common law sense. Such retroactivity constitutes an abnormal departure from common law principles and should be allowed only for the most compelling constitutional reasons. However, Johnson, like this case, involved a direct appeal from a conviction and its rule of decision is thus properly applied to our judgment of it. This appellant, whose conviction has not yet become final, seems to me entitled to the benefit of his
Since this case is on direct appeal, the majority necessarily uses “retroactivity” in the loose sense referred to, in order to refuse application of a controlling rule of deсision announced before appellant‘s conviction was final. I cannot agree with that broad use of the term. See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801).
Even if I were to accept that, however, I would be compelled on the facts of this case to disassociate myself from the majority‘s position because the United States Supreme Court has decided the specific issue of whether the constitutionally based rule of decision announced in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1981), should be applied to pending cases. It did so by expressly holding that the rule restricting warrantless searches must be so applied. See Johnson, supra. I think that decision is specific and requires us to apply the Payton prohibition on warrantless searches of a home to this case, despite our earlier holding in Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), thаt this particular prohibition, which we foreshadowed in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), should have only prospective application.
ZAPPALA, Justice, concurring.
I concur in the result, although I do not agree with Justice Flaherty‘s discussion of the effect of United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). In that case the United States Supreme Court held that its ruling in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), invalidating warrantless arrests in the home, was to be applied “retroactively to all convictions that were not yet final at the time the decision was rendered.” Johnson, 457 U.S. at 562, 102 S.Ct. at 2594.
Although this Court had previously announced a rule identical in substance to the rule announced in Payton, Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 508
It is true that the federal Constitution neither prohibits nor requires that decisions be given retrospective effect. We are, therefore, free to resolve that question in the first instance, as we did in Miller, even where the rule whose application is questioned is based on our interpretation of the federal constitution, as was Williams. Nevertheless, the United States Supreme Court has reached a contrary conclusion with regard to the application of its rule in Payton, requiring that it be applied to all cases not yet final at the time Payton was decided. “Final“, the Court explained, means “‘where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed [or a petition for certiorari finally denied ...].‘” Johnson, 457 U.S. at 543, n. 8, 102 S.Ct. at 2583, n. 8, quoting Linkletter v. Walker, 381 U.S. 618, 622, n. 5, 85 S.Ct. 1731, 1734, n. 5, 14 L.Ed.2d 601 (1965).1 Because the time for certiorari has not elapsed, McFeely‘s case is “not yet final” within the meaning of Johnson. Were we to follow Miller and deny application of the Williams rule, absent other defects in his case McFeely‘s petition for certiorari to the United States Supreme Court would be governed by Johnson and application of Payton would be required.
For the foregoing reasons, I do not believe this Appellant is entitled to the benefit of retroactive application of Payton as required by Johnson. I express no view as to whether application of the rule on these facts wоuld require suppression of his statements, were he entitled to have the rule applied to his case.