*3 Before EAGEN, POMEROY, O’BRIEN, NIX and MAN- DERINO, JJ.
OPINION EAGEN, Chief Justice.
Julius was convicted of Pugh murder of jury third degree. Post-verdict motions were denied and a prison sentence of ten to twenty years This imposed.1 appeal followed. Pugh facility was ordered committed ato mental in rehabilitation lieu incarceration in a correctional institution.
448
Pugh contends he is entitled to a new trial because certain errors in alleged prosecution The Com process. monwealth these argues issues have not been for preserved review appellate Pugh failed to because Com comply Blair, v. monwealth A.2d Pa. which (1975), requires that of error be in assignments presented written motions. do post-verdict We accept Common wealth’s position. of error were assignments presented to the post-verdict motion court in a written “Memorandum in Arrest Support Motions or New Judgment Trial,” and the court and considered merit of accepted assignments these objection. Thus, error without while we do not approve Grace, this practice, Commonwealth is will (1977), controlling and we consider the issues to be properly before us.
Pugh alia, urges, inter that the trial court erred in deny- ing pretrial applications to suppress certain evidence which was later used him at trial. against Included this catego- ry evidence of oral and written Pugh statements is said to have made while in police custody. Specifically, Pugh main- tains this evidence was obtained under cir- impermissible cumstances, without a namely, prior knowing intelligent waiver of constitutional and that the rights trial court erred in ruling otherwise. After an examination of the record we are unable to resolve the merits of issue intelligently will, follow, for the reasons that remand the record the trial court for further proceedings.
The record discloses that answers Common- wealth to the pretrial were applications suppress not filed *4 until the for day fixed the a suppression hearing, date well beyond the time of permitted.2 this, Because Pugh’s counsel the requested court accept to as true all well- in pleaded facts the applications. The request was denied Pennsylvania 2. provides: of Rule Criminal Procedure Application to “Answers “(a) Pretrial may days Answers be filed not later than seven after service pretrial application, of except the good for cause shown. Failure to pleaded answer shall be deemed an admission the well facts in application.” averred the overruling reasons not made clear.3 In the post-verdict motions, the trial court stated the court had “discretion, under Rule of Procedure No. 20 to Criminal disregard the Commonwealth’s technical failure to comply rules, with the if it so justice believed interests required.”
Our has research not disclosed “Rule Crimi any nal Procedure No. 20” a of Pa.R.Crim.P. justifying disregard 308(a)’s mandate,4 and since there was nothing record “good show cause” answers, for the late filing suppression court all should have as true accepted well-pleaded facts averred in Pugh’s applications.5 Com monwealth Eller, (1974). Pa.Super. that, even if the argues suppres sion court erred in Rule following the mandate of no supra, prejudice resulted because all of the well-pleaded in facts the applications as true in accepted were eventually the court’s adjudication disposing applications suppress. While in it be correct is not may part, completely so.
Pugh’s claim that he did not knowingly intelligently waive his constitutional rights making before the challenged statements was on based that on part6 allegation “of day interrogation the defendant police, had (Pugh) taken an quantity unknown of prescriptive drugs.” say
3. The attorney’s experiencing court did the district office was difficulty personnel. stenographic assuming Even such would “good shown,” nothing constitute support cause there is of record to this. course, procedure adopted 4. pleas Of a rule of court of common procedure. cannot be used as a means to our circumvent rules 1(b). Pa.R.Crim.P. reject position Pugh 5. We required Commonwealth’s allege “specific prejudice resulting filing.” from the late No such requirement is set forth Pa.R.Crim.P. 308. Additionally, Pugh alleged he was a functional illiterate and was suffering psychiatric problems quantity serious and had consumed a immediately of alcohol questioning. before his arrest and the *5 In view without of the of the answers untimely filing court “good shown,” required cause suppression as true. this factual in the accept applications averment fact, But this the to do. In there court failed to indicate nothing adjudication the court’s or findings this fact was considered. pre
While the intake of does not drugs necessarily vent one waiving from and constitu knowingly intelligently 256, 370 Cornish, tional rights, Commonwealth v. A.2d 291 all of it so. To determine this (1976), may well do considered, including circumstances must be attending times the exact time or type drug, and quantity drug was consumed whether an impairment and faculties The fails to provide ensued. instant record information. will, and therefore,
We of sentence judgment vacate remand the to the new suppression record trial court are to at and hearing which all relevant facts circumstances Court this, be if the explored Following considered. un- determines the evidence was obtained again challenged rein- circumstances, der it will constitutionally permissible a new state the of sentence and file judgment Pugh may evidence But if the Court determines the appeal. challenged new should have been then a trial should suppressed, granted.
It is so ordered. NIX, JJ., dissenting filed opinions. POMEROY and J., JONES, J., ROBERTS, did not partici- former C. or of this case. consideration decision pate POMEROY, Justice, dissenting. states, the failure of the
As the Court opinion file a answer to pre-tri- Commonwealth to timely motion in the absence of a suppress required, showing al failure, for the court of a cause” “good well-pleaded as true all facts averred in the accept appel- lant’s suppress. motion to Pa.R.Crim.P. 308. Court See that, is of the when opinion done, this is there is insufficient *6 evidence to the support conclusion of the suppression court that the statements of the defendant were properly obtained believe, and should be admitted into evidence. I however, that the conclusions of the court were amply and would affirm the supported below. judgment Hence this dissent.
In support that he did not know- argument and ingly waive his intelligently rights, constitutional Pugh alleged his motion to that on the of the suppress “day interrogation the police, had taken an unknown [he] quantity prescriptive drugs.” majority, purporting on rely Cornish, Commonwealth 256, v. 471 Pa. 370 A.2d 291 (1976) holds that before such a claim be resolved, a may court must determine all the circumstances includ- attending ing “type the exact time or times quantity drug, drug consumed, and whether an impairment of the faculties ensued.” It therefore re- [Ante, at p. 450]. mands for a new I think this suppression hearing. disposi- tion of the matter is in error.
First, what I understand to majority misinterprets our in Cornish, case, holding supra. In that this Court stated:
Cornish,
in a related argument
rule,
would have us
analogous to guilty plea situations,
the police should
have inquired as to the extent of
drug
Cornish’s
intake
once they were aware he used narcotics. We decline to
create such a
se
per
rule. The issue is one to be resolved
examining
circumstances,
totality
and the
circumstances
instantly established Cornish was in full
control of his will. This is not to
that such an
say
inquiry
would not have been a
preferable
way
police to
have proceeded, but
their not having done so does not
render
automatically
the statement
involuntary.
Cf.
Commonwealth v.
10,
453 Pa.
McKinney,
Rather than lending support to appellant’s there- position, fore, Cornish expressly rejects the adoption of a se per rule claims where the police suspect
as to what is required the influence of drugs. to be under I believe the critical in- Second, and more importantly, alleged in cases such as the is whether the present quiry consumption drugs any way impaired ability his rights. waive appellant knowingly intelligently Thus, in judge. This is the task of the Common- Moore, 337, 341, 620, 454 Pa. 311 A.2d 622-23 wealth v. we stated: (1973),
A constitutional burden is
Commonwealth
upon
preponderance
show voluntariness of a confession by
Twomey,
the credible evidence.
v.
U.S.
Lego
Smith,
(1972);
In the case at over the Judge presiding suppres- sion made similar hearing, categorical findings:
From all the
concludes the defend
testimony, thisrCourt
ant did have sufficient
to understand what was
capacity
said to him and the
statements.
being
meaning
any
defendant,
it is
clear that when a
Accordingly,
quite
as
here, has been
informed of his
reasonable
fully
rights, any
or a
acknowledgment
understanding
willingness to
see U.
v.
speak
acceptable;
Boykin [C.A.Pa.],
S.
483,
denied,
F.2d
to which certiorari was
The Court has in detail all the circumstances examined We’ve all surrounding weighed defendant’s admission. concerning evidence this defendant. We produced conclude cognizant that the defendant was sufficiently all that made taking state- place inculpatory ment aware, here involved without counsel and indeed as I it, see a consequences of an admission or confession.
Since court has concluded that was in Pugh of his faculties at the time of the waiver of possession his rights, and since the evidence in the record is sufficient to support conclusion,* such I nothing gained a see the record for the evidence remanding taking additional which is not critical to the conclusion of voluntariness legal which is I challenged. judgment here would affirm the sentence.
NIX, Justice, dissenting. vacates the of sentence because it majority judgment reaches an which issue was not included in the written post-verdict motions filed on March by appellant This was more than a month after this Court made it crystal clear in Blair, (1975),that case, 27, 1975,* after date of January * The police record discloses that testified at interrogating officers coerced, hearing way *8 appellant that that was in no responsive he rights was and his seemed to understand both and questions, their appear that the and he did not to be under influence Moore, supra, drugs. Thus, of v. in we Commonwealth as have a simply case where to believe the the court choose testimony appellant in witnesses that was Commonwealth possession knowingly sufficient of his so as intelli- faculties to gently regardless rights, waive fact that he his constitutional may quantity drugs. prescriptive have should also taken a It be question borne in mind the the the confes- that voluntariness sion, court, being in to addition raised before presented jury also Common- proper See to under instructions. Green, wealth v. 557, (1975), Common- 464 Pa. 347 A.2d 682 Camm, 253, wealth v. (1971). 443 Pa. * Blair, v. argued Mr. Justice that Commonwealth has ROBERTS 460 31, (1975) apply Pa. 331 213 A.2d should from date of
454 by only for review preserve appellate could issues
defendant Rule of Pennsylvania requirement with the complying objection all grounds 1123 that Criminal Procedure The motions. be included in written post-verdict verdict we said: plainer have been when Blair could not mandate of ignoring districts practice judicial The in some Henceforth, 1123(a) of Rule is condemned. requirements will not with the rule issues not presented compliance 460 Id. be courts. appellate considered our trial and by 33, 214, 1, 331 Pa. at n. A.2d at n. 1. need Blair,
Since has repeatedly emphasized Court to preserve to include issues in written in order motions 595, 462 Pa. v. Terry, them for review. In Commonwealth said, 602, 3, 92, again n. 3 we “We 96, (1975), n. 342 A.2d filed subsequent that motions post-trial stress the written Blair, 31, A.2d 460 Pa. 331 our decision in Commonwealth v. to be considered 213 on the issues (1975), will conclusive tribunals.” by appellate and reviewable the court en banc in Commonwealth v. opinion curiam per unanimous 816, n. 3 524, 526, 3, 815, (1975), 353 A.2d 466 n. May, Pa. states, “In Blair we participating, with all seven justices that, thenceforth, compliance held less than strict nothing writ 1123(a), Appendix, requiring Pa.R.Crim.P. P.S. motions, issues raised preserve ten would act post-trial also, v. therein for review.” Commonwealth See appellate 4, 783, 785, (1975). n. 4 Fortune, n. 346 A.2d the fact that the entire Court Despite strict only compli- v. read Blair as May, supra, holding review, majori- preserve ance would suffice to issues 1123(a) Rule to consider issues even when willing now ty issues are present- has not been with so as the complied long court, and the trial ed in a to the trial written memorandum were not though they court the issues even considers 1,1975, decision, reported in the date it was first but from March Smith, Pa. Reporter. Atlantic See Commonwealth Roberts, J., (1976) (dissenting joined opinion by Mander- A.2d 990 ino, However, J.). post-verdict on motions were filed in this case the 4, 1975, decision and the date the case March after both the date of reported. was first *9 in accordance with Rule 1123. The presented ignoring 1123 by Rule both trial and trial courts was attorneys Blair, what we tried to an absolute precisely stop by assertion that unequivocal non-compliance henceforth with Rule 1123 would be tolerated. The majority’s not we re- willingness non-compliance, to tolerate after have not, stated that will renders Blair peatedly meaningless we and enforcement of 1123 impossible. Rule in Blair which was created Common- exception wealth v. Grace, 542, and is (1977), 375 A.2d as applied case, in this but “controlling” permits only fosters violations actually of Rule 1123. A trial court which has objections to a verdict presented by to it of a way written memorandum on day rather than argument, written by motion within the time limits specified by rule, knows that it may practice in the safely engage con- demned by Blair consider such proceeding objections on the merits. Under the majority’s reasoning, violation of Rule 1123 both trial trial court not attorney only results in sanctions, no but also assures the offending party of full appellate review. Blair,
After there can be no excuse for non-compliance with Rule 1123. No Blair; new rule in was announced we merely announced that from that forward rule day already existence would be In enforced. an effort strictly fair, be completely we did not insist on enforcement strict of the rule in cases where the relevant events took place pre- Blair, because some courts a long-standing had practice condoning non-compliance which tended to mislead counsel into relying on that practice, Commonwealth v. Bailey, 354, Pa. 358, 344 clear, A.2d 871 (1975). But after the unmistakable warning Blair, set forth in there no can be claim of unfairness.
The contradictions and difficulties to which post-Blair
exceptions will lead are
apparent
Grace, supra,
even not presented written counsel that to we remind again went on “But say, and these motions must must be filed motions post-verdict wishes to which counsel include error assignment every will never for review.” warnings Such preserve appellate an in the same breath taken when come seriously they Rule intend to enforce does not assertion that the Court warning specific even violations occur after when tolerated. further would not be violations was not Grace, exception In the Blair application sentence result, judgments essential because the Grace’s have been had affirmed, they were as would just seriously been majority today claims deemed waived. The exception compounds the error Grace by applying Because reach an issue which does determine the outcome. I can lead only believe that this post-Blair exception courts, disrespect lower confusion trial among attorneys Court, and further violations pronouncements of this rules, of our I procedural dissent. Runewicz, wife, Appellants,
Joseph his RUNEWICZ and Nellie COMPANY. KEYSTONE INSURANCE Pennsylvania. Supreme Court of Argued 20, 1977. Jan.
Decided Jan.