*1 Oрinion Concurring Mr. Justice Roberts: I concur in the result because counsel interposed no timely objections. Appellant is therefore precluded error, from raising presently asserted claims of gee, e.g., Agie, A. 2d 741 Mr. Chief Justice Jones joins this concurring opinion. Appellant, Wayman.
Commonwealth, *2 Submitted April 25, 1973. Before C. J., Jones, aud Man- Nix Eagen, O’Brien, Boberts, Pomeroy, JJ. derino,
Peter G. Loftus, Assistant Public for Defender, ap- pellant.
Paul B. Mazsoni, District for Common- Attorney, wealth, appellee.
Opinion October 3, 1973: Mr. Justice Eoberts, On the afternoon January 31, 1967, appellant, old year after youth, learned from friends having that he was wanted voluntarily surren- police, dered to the Scranton Police Department. Appellant’s action was motivated by the fact that he had been ear- lier advised that one Frank had been Smith, Jr., arrest- ed for a series after burglaries, had, shortly being taken into custody, implicated appellant commis- sion of these crimes. The following day (February 1, 1967) after been having detained interrogated over hours, appellant signed statement admitting complicity seven there- burglaries. Immеdiately after, appellant was preliminarily arraigned.
On August 11, 1967, appellant pleaded to one *3 count burglary (No. and was 20B), sentenced to 18 months imprisonment. On October 2, 1967, appellant to proceeded trial, before on the jury, second burglary count (No. and 7e), was Prior adjudged guilty. to this trial, timely filed motion to suppress confession was denied. (At this trial, challenged confession was, over introduced objection, against appellant). Post-trial motions were denied, and appellant was sentenced to serve a term of 23 months imprisonment. On Novem- ber 1, 1968, appellant pleaded five remain- ing then bim burglary charges outstanding against (Nos. and 7a, b, c, d, 10). Appellant was sentenced on each these offenses to serve a term of imprisonment of one and one-half to four years, each sentence to run with those concurrently already served. being An allowed as if appeal, timely filed, taken to which Superior Court, affirmed in an opinionless order, curiam with two per judges dissenting. (Hoff- filed a man, J., dissenting opinion, joined by Spaulding, 82 and allocatur, This Court we now reverse
J.). granted in No. and remand for an 7e, evidentiary- the conviction in 20B. d, Nos. and hearing 7a, b, c, 10, here did Appellant argues, Superior the 24 hour “unnecessary delay” between Court, arrest and renders his arraignment confession, given R. at the end this inadmissible.1 Pa. only period, 1 Although appellant specific argument did not raise this in his (1967) suppress (which purported pretrial motion to based on Arizona, forth Miranda v. 384 of the standards set U.S. violations Illinois, 478, 436, (1966) Escobedo v. 84 86 1602 and 378 U.S. S. Ct. objected being (1964)), has not to S. 1758 Commonwealth Ct. objection sponte. here, Com should not raise an sua raised we Page King, n.3, 215, A.2d v. & 451 Pa. 216 monwealth objeсtion (1973). Indeed, been n.2a had such an voiced Commonwealth, it have been without merit. would Futch, (1972) As 447 Pa. A.2d 417 Commonwealth (deciding for the first time this Commonwealth 'that all evidence “unnecessary delay” arraign during an between arrest obtained inadmissible), delay, ment, except evidence unrelated to the years appellant’s trial, appellant until five was not decided after right litigate claim. As to have waived the to cannot be held 215, 218, Simon, Commonwealth v. 446 Pa. made dear in Cheeks, (quoting (1971) from Commonwealth A.2d “ manifestly (1968) ‘[I]t be unfair A.2d : alleged appeUant to have to a waiver when this waiver to hold attorney nor his had a time neither defendant occurred at when right way knowing any existed a be waived.’ Id. at that there progeny . established the at 796. Cheeks and its . . 239 A.2d proceeding prior in a is not a to raise an issue rule that failure premised legal principles upon the issue is when waiver subsequent appellate newly decision rendered announced an are omitted). (footnote prior proceeding.” also See of the the date Jefferson, 541, 546, 226 A.2d *4 properly Moreover, present аppellant’s contention is before this pre- “ground” relief the for reason for the additional hearing presented court one to the is the identical here sented invalidity suppress—the pretrial con- of the appellant’s to motion Merely appellant or new “advances a fession. because different pre- theory relief, ground remains for” or issue the as a basis
83
by
replaced
January 1, 1965,
Crim. P. 116(a)
(effective
Common
(effective May 1, 1970));
Pa. R. Crim. P. 118
238 (1973);
Pa.
307 A.2d
wealth v.
453
Dutton,
547,
Pa.
It is now that at the time appellant’s well settled all “arrested with without a arrest persons warrant” were to “be taken without unnec required authority before the for a essary delay proper issuing Pa. R. Crim. P. preliminary arraignment.” 116(a) (ef fective Where this January 1965) ; Dutton, supra. mandate has unfulfilled gonе Commonwealth, “all evidence obtained ex during ‘unnecessary delay’ . . cept which . has no reasonable relationship to whatsoever” must be delay Futch, excluded.3 supra cisely Slavik, 424, 430, the same. Commonwealth v. Pa. A.2d Appellant “ground,” here does not advance a new merely argument legally he raises an different from that raised be- supra Slavik, (quoting As this Court held in low. from Sanders v. States, (1963)), United 373 U.S. 83 S. Ct. ‘“iden- may grounds supported hy legal arguments, tical often different ” “ground” here, invalidity . . .’ advances of the confession, having preserved accordingly belоw, properly been be- fore this Court. challenges plea Appellant 20B, prior also entered in No. hearing suppress suppression challenged court’s refusal alleges Appellant pri- was also confession. motivated illegally marily obtained confession. 389, 393, [447 in Futch “This Court 290 A.2d omitted) (emphasis added)] (citations (1972) made it clear ‘. . .
at
Here, Commonwealth’s own as evidence, of the trial opinion court, appellant indicates that voluntarily surrendered himself to the Scranton police afternoon of Janu- (approximately P.M.) 3:00 ary 1967. and Appellant was thereafter detained for 24 and at on Feb- interrogated 3:00 P.M. hours, ruary 1, 1967, finally signed admitting statement his in seven complicity this separate burglaries. During period, appellant hour was his returned to home, custоdy of the (cash where re- police, evidence of one crime ceipts) obtained by was the authorities. The Commonwealth not in does seek to any way jus but tify delay, this rather asserts that as was “threatened” “abused,” confession represents and and knowing voluntary, therefore act. valid, misses the However, argument R. Crim. point—Pa. P. well 116(a) (as as its Pa. R. progeny Crim. P. 118 and all 116) requires that arrestees be ar preliminarly “without raigned unnecessary The Common delay.” made no wealth has the in suggestion whatsoever stant delay necessary.4 we must con Accordingly, clude the 24 hour between delay appellant’s arrest comply prior failure 118 [and with Rule to Rule ipso 116(a)] does not render inadmissible evidence obtained facto during “unnecessary police delay” and that it is incum- ” upon prejudice delay.’ bent some defendant show from the Tingle, 241, 244-45, A.2d 702-03 Judge Buboes, Justice, provided then following Chief “necessary determining guidelines delay” between arrest and hence viola- arraignment “unnecessary,” tive supra; supra; of Rule 116(a). Dutton, Tingle, Futch, supra.
Nor can be that the seriously challenged suggested “unnec confession was not related” to this “reasonably A.2d at essary delay.” Futch, supra 394-96, *6 419. Commonwealth’s own By concession, appel 19a with lant, year-old youth prior police contact, no did not 24 and re “confess” until hours after arrest peated It was after interrogation.5 only then, giving a written statement, preliminarily On these arraigned. facts, must conclude “[w]e statement as the evidence challenged here, Futch, to the supra, ‘reasonably related’ de ‘unnecessary and thus inadmissible.” lay’ 301 Tingle, supra 247, A.2d at 704.
arraignment: “Necessary delay reasonably can relate to time to administratively process booking, fingerprinting an accused with steps. States, . . and other .” Adams v. United 399 F.2d (D.C. 1968) (concurring opinion). Tingle, Cir. See Commonwealth v. 241, 245, (1973) ; Futch, 451 Pa. A.2d Commonwealth v. 389, 392, 447 Pa. A.2d 5 Although obviously by suppression court, ap- disbelieved pellant they up they testified that: “After had locked me came back again kept asking questions, kept and took me out and me and tell- already ing crimes, they me Frank had to certain and confessed of, they that I crimes never heard and then named took me back brought again cell and me back I when wouldn’t tell them they said, gomg nothing, you’, ‘We are to and make it hard on and that, going easy things they ‘We are on like Smith’. Then locked me they my up taken me out after had cell and took and me back. up they bringing they me would be be locked Smith As back bringing coming get again him and later out on and and The me. morning they got day came and me and took in the me back next they upstairs they signed again, had Smith told me and he and had might too, you go easy as well do it we ioill ‘So on a statement. hard’, things you, so and like that and won’t And when I they going up took me back and locked me wasn’t them told again.” be in determined confession to
Having
appellant’s
and
are
valid,
admitted at his
erroneously
we
trial,
now called
contention that
upon
pass
appellant’s
to the six
his guilty pleas
remaining burglary charges
were
con
primarily
motivated
obtained
illegally
fession.
the record before
is insufficient
However,
us
to make
such
determination.
no
Accordingly,
post-
trial motions were filed
to this
ap
appellant prior
allowed as if
the record
peal
timely
is remanded
filed,
to thе trial court for the
filing
post-trial motions,
with
to the trial
to conduct an evi
instructions,
court,
dentiary
Cf. Commonwealth v.
hearing.
Starr,
Commonwealth v.
(1973);
A.2d
Kelly,
The of sentence in judgment No. 7e is reversed trial new The records in granted. Nos. 7a, 7c, 7b, 7d, 20B are remanded to the trial fil- for the court ing post-trial with an motions, instructions to hold appropriate evidentiary hearing. *7 Eagen
Mr. Justice dissents. Dissenting Opinion Pomeboy: Me. Justice Two basic errors in decision today’s dis- compel my sent. in First, entertaining petitioner’s claim that his confession is inadmissible under Futch and Dutton, majority from the departs rules issues governing pre- on sentable nunc pro tuno appeals which we laid down in Commonwealth v. Faison, 437 Pa. 264 A. 2d (1970). Second, holding guilty which fol- pleas an low inadmissible confession will be invalidated if were motivated they primarily by the confession, sub appears overrule, silentio, without benefit briefs argument question, large part our still recent decision Commonwealth v. Marsh, A. 2d believe the trial court was correct and that its judgments sentence be affirmed should without a remand.
I.
A. 2d
Futch,
v.
In Commonwealth
from evi-
excluding
a rule
we promulgated
(1972),
related
cаusally
extracted
and
during
confessions
dence
to arraignment.
of unnecessary delay prior
ato
period
Futch has
case,
of briefs
the present
tbe filing
Since
(over
dissenting opinion
my
been made retroactive
and Mr. Justice
Justice Jones
by Chief
joined
Eagen)
of former Penn-
date
the effective
January 1, 1965,
Common-
Procedure 116(a).
Rule of Criminal
sylvania
re-
In we held supra, is taken nunc tunc can pro whose appeal at those issues only properly preserved trial, raise of constitu involving alleged deprivations those issues announced but retroactively tional rights subsequently an did not preserve Wayman “unnecessary applied. once at never mentioned trial; indeed, issue delay” while it category issues, it.1 to the second As suppression Wayman’s hearing, attack on his confession at trial, pоst-trial motions, was coerced im- Miranda, requirements police proper and in violation of the conduct rights. warnings Futch of his constitutional The issue was as to Superior time in the Court. for the first introduced Slavik, A. 449 Fa. 2d 920 In Commonwealth challenge validity defendant whose a criminal held that we rejected appeal on direct been could not at- had of his *8 petition, though time a PCHA even he a second tack theory. legal “A We there said: defendant a different advanced validity plea every relitigate time he offers entitled previously argument theory he had not advanced. newa virtually 4(a) emasculate Section of the otherwise To hold
88
true
Futch
is a subsequently
retroac
announced,
it is not a
tively applied
based
rule,
constitutionally
rule.
Rather,
the exercise
promulgated
our supervisory powers,
the McNabb-Mal
paralleling
rule in
federal
lory
courts.2
The reason that
announced
subsequently
but retro
actively
constitutional
are
applied
rights
available on a
direct
nunc
tunc
appeal
pro
is that such
can be
issues
subject
made the
a PCHA
аnd it
petition,
is ineffi
cient to
two
require
where one
proceedings
would suf
fice. PCHA
are
proceedings, however,
limited to issues
of constitutional
and Futch
dimension,3
would there
fore be
to a
unavailable
PCHA petitioner.4
It follows
PCHA,
very objective,
permit
repetitive
its
defeat
constant and
relitigation
already finally
of issues
decided on their merits.” 449
head,
argue
it,
Pa. 431. To turn Slavik on its
from
as the ma
jority
1, supra,
appellant’s
does in its footnote
if an
case has
litigated
appeal
may
any legal
not been
base his claim on
theory, irrespective
arguments
or factual
of whether the
were made
trial,
fly
precedent.
is to
in the
face of reason and
“It is a well
appellate
argu
known axiom that
courts will not review issues and
ments not raised
the court
Commonwealth ex
below.”
rel. Bell
Rundle,
127, 131,
den.,
57,
420 Pa.
216 A. 2d
cert.
tioner’s claim under Commonwealth
adjudication
pe-
alter
the final
A. 2d 257
a case decided
appeal.
doing,
Although
In so
I think
titioner’s direct
we erred.
McIntyre
opinion
Richardson
treats
issue as one of due
exclusionary
based,
process,
rule of
case is
like
the Futch
powers.
supervisory
rule,
our
States,
Runge
(10th
See, e.g.,
v. United
427 F.
2d
Cir.
States,
(10th
1966) ;
1970);
v. United
II. *10 that the in assuming Even is correct reach- majority the of in merits Futeh he ing Wayman’s my claim, no entitled to relief. judgment
The first burglary charge brought against Wayman for a in (No. 20B) was crime not touched his upon confession and at the of scene which was apprehended Tо
redhanded. this he pleaded guilty.6 The next (Nos. indictments 7A, 7B, 7E and 7C, 7D, 10) charged separate burglaries which were encom the confession. passed by challenged Wayman moved statement and after suppress that motion was heard and denied, pleaded guilty at No. 7E and went to trial before a He was jury. convicted. He then pleaded guilty five remaining indictments (Nos. 7A through 7D, At no inclusive, 10). time has he the court to moved lower allow of withdrawal his guilty pleas. opinion appears The of the Court to remand to enable the low- plea 20B, among others, if er court to determine this at No. was by presence primarily prosecutor motivated the in the hands of the Wayman’s of confession. am at a loss to understand how could pleaded guilty appellant police to one crime be because the relating crimes, especially to other had a confession in view of the caught at fact that he was scene and thus had no defenses. plea solely by seem obvious It was motivated contesting impossibility of the matter. plea guilty possible “any aof Withdrawal for fair and sentencing, just Forbes, before reason” (or, reason, any (1973) perhaps, 299 A. 2d Common- easy to before us is legal is now issue
The
Wayman
show
such
must an
state: What
pleas
al
pleas
are
guilty
those
when
to avoid
order
causally
related to
leged
manner
be
some
illegally
prosecutor
ob
presence
hands
question in Com
We answered
evidence?
tained
adopted
supra,
in which we
Marsh,
monwealth v.
“Brady
in the so-called
announced
federal standards
Supreme
cases.8We
trilogy”
Court
States
of the United
Supreme
[in
“The
States
in Marsh:
United
sаid
supra
that a defend
note
held
8]
McMann and Parker,
successfully
following to
all
ant must demonstrate
grounds:
collaterally
on such
attack a
(or presumably
involuntary pretrial
(1)
confession
an
incriminating
constitutionally
evi
any
infirm
other
primarily
guilty plea
moti
dence)
(2)
that the
;
(3)
that defendant
evidence; and,
such
vated
plead guilty, in the
incompetently
counsel to
advised
stand trial. . . .
rather than
circumstances,
exacting
recognize
more
could fix
that we
“We
determining
for our courts to follow
. . .
standards
*11
guilty pleas,
resulting
validity
from
of conviction
may
previous decisions
have been so
of our
and some
546,
(1973)).
Woods,
After
Pa.
interpreted,
intend
adhere to the
rulings
McMann,
Pa.
supra,
Parker,
supra.”
440
at 593-
94. This
statement
the law has been
fol
consistently
in our
lowed
decisions.9
subsequent
I note that
the first
two
these
requirements,
recited in Marsh, constitutes a
restatement
the pre
Marsh law
Pennsylvania
to which the
today
Court
reverts:
guilty plea
avoided by
a link of
showing
“but for” causation between the
obtained evi
illegally
dence and the
The third
plea.10
of Marsh—
requirement
9
Marsh, supra,
Commonwealth v.
has been followed on numer
See, e.g.,
Dennis,
340,
ous occasions.
Commonwealth v.
451 Pa.
304
(1973) ;
345,
Taylor,
A. 2d 111
Commonwealth v.
449 Pa.
296 A. 2d
(1972) ;
Hollenbaugh,
6,
823
Commonwealth v.
449 Pa.
guilty for the death incompetent entered on thаt the have been shall plea Richardson, of from McMann advice counsel—was adopted of is case in the role counsel the which trilogy however, most It be noted, should fully explicated. as and Parker Brady that the requirement appears by not and that Marsh fact well, supported only This McMann but the of all three cases. by principles ma last the by overlooked requirement completely jority.
I for one believe that a
not withdrawn
guilty plea,
before
entered
with
rules
accordance
sentencing,
and decisions
and competently
regarding guilty pleas,11
merely
penalty provision
‘but
cause
identifies the
as a
for’
of
plea.
plea
the statute caused the
in this sense does
neces-
That
sarily
plea
prove that
coerced and
as an involun-
invalid
tary
guilty pleas
of
act. . . . The standard as to the voluntariness
by Judge
essentially
of
must
that defined
be
Tuttle
Appeals
Fifth Circuit:
“ ‘
guilty
by
fully
plea of
of the direct
[A]
entered
one
aware
any
consequences, including the actual
made
value
commitments
by
court, prosecutor,
counsel,
or his own
must stand un-
to him thе
by
promises
(or
improper
threats
discontinue
harass-
less induced
ment), misrepresentation
(including unfulfilled or unfulfillable
by promises
improper
promises),
perhaps
that are
their nature
relationship
(e.g.,
proper
prosecutor’s
having no
business
page
bribes).’
115.” 397
at
2d
242 F. 2d at
U.S.
L. Ed.
757, 760.
at
Wayman
case,
being
present
the record
informed
In
shows
already
(of
incidentally,
rights
he,
procedural
all
just
jury
having
aware,
in a
one
been convicted
tidal of
count
questioning
acknowledging,
burglary) ;
him
after detailed
it shows
burglaries charged,
Court,
committed all the sevеral
Wayman telling
“just
finally,
the Court
that he
it shows
that, judged apart
get
I think
clear
want(s)
it
over with.”
Wayman’s
counsel,
guilty pleas
performance of
satisfied
from the
standard
constitutional
voluntariness set
federal
minimum
Brady.
out
Alabama,
Boykin
U.S.
23 L.
Ed. 2d
acceptance
the time of
of a
requires
made
the record
plea
voluntary
affirmatively
is the
in-
disclose
*13
counsel,
advised by
should be in practical effect final.
I
of
recognize,
course,
this Court
an inde-
has
pendent
to
power
from
depart
the federal constitution-
al
law as announced
Suрreme Court
United
and
States
to require procedures more favorable
to the defendant as a matter of state law. When as here
that Court bas dealt with the subject
extensively,
think this Court owes it to its
to
constituency
explain
awhy
different
rule should obtain in Pennsylvania.
That obligation is not
discharged by
dis-
conclusory
cussion of today’s opinion.
telligent act of the defendant. This
Commonwealth ex rel.
Rundle,
West v.
imposed
428 Pa.
same
on the lower courts of this State at an earlier
procedure,
date. Our rule of
Pa. R. Crim. P.
as amended on
28, 1973, charges Pennsylvania judges
March
accept
guilty
not to
plea
inquiry
[the court]
“unless
determines after
of the defendant
voluntarily
understandingly
is
and
tendered.” The
commentary
inquiries
to that Rule lists minimum
to be made and
given
addition,
obliged
information to be
the defendant. In
we have
trial courts to ascertain that
there exists a factual basis for the
plea.
Jackson,
See Commonwealth v.
450 Pa.
2d 209
A.
finally
positively
And
our trial courts are
barred from ac
cepting pleas
say
they
from defendants who are unable to
com
they
charged. See, e.g.,
mitted the acts with whiсh
stand
Common
Roundtree,
(1970);
wealth v.
440 Pa.
III.
in the
Examining Wayman’s guilty pleas
light
Marsh, we can
this case without a remand.
dispose
The record before
to
only
us
resolve the
adequate
question
we need
reach:
not “de-
whether
fendant was
advised
incompetently
by counsel
plead
guilty,
than
rather
stand trial.”
circumstances,
Marsh,
Commonwealth v.
Mr. Chief Justice this dissenting Jones opinion. Appellant.
Commonwealth v. Butler,