Com. v. Burchard

• Decision Date: 24 January 1986
• Citation: 503 A.2d 936,349 Pa.Super. 456
• Parties: COMMONWEALTH of Pennsylvania v. Bruce Stewart BURCHARD, Appellant and Daniel Joel Van Slochem, Appellant. 000985 Phila. 1982 000986 Phila, 1982
• Court: Pennsylvania Superior Court

Page 936

503 A.2d 936

349 Pa.Super. 456

COMMONWEALTH of Pennsylvania v. Bruce Stewart BURCHARD, Appellant and Daniel Joel Van

Slochem, Appellant.

000985 Phila. 1982

000986 Phila, 1982

Superior Court of Pennsylvania.

Argued Aug. 6, 1985.

Filed Jan. 24, 1986.

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

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

Phyllis R. Streitel, Asst. Dist. Atty., West Chester, for Commonwealth, appellee (at 985 and 986).

Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, CIRILLO, OLSZEWSKI, BECK and TAMILIA, JJ.

CIRILLO, Judge:

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, ¹ possession of controlled substances with intent to deliver, ² and criminal conspiracy. ³ 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. ⁴ 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 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 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). ⁵

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," ⁶ 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 trial lawyer--and his client--are penalized when an entire case is retried because an appellate court reverses on the basis of an error opposing counsel failed to call to the trial court's attention. Failure to interpose a timely objection at trial denies the trial court the chance to hear argument on the issue and an opportunity to correct error. It also tends to postpone unnecessarily disposition of other cases not yet tried for the first time. See Pa.R.C.P. 214(d).

Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Conversely, the specific objection requirement ensure[s] that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources. First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.

Id. at 258-59, 322 A.2d at 116-17 (footnotes omitted). Accord Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

With these considerations in mind, we turn to the case sub judice. The trial court held, and the Commonwealth argues, that appellants waived the right to have the validity of the search warrant reviewed on appeal because at trial appellants failed to object to the introduction of the physical evidence seized pursuant to the now challenged search warrant. A pre-trial suppression motion and post-trial motions addressed the legitimacy of the warrant.

The trial court was constrained from reaching the merits of the suppression issue by Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979). Humphreys involved the admissibility of photographs; a pre-trial suppression motion was denied and, as here, the accused failed to object when the Commonwealth offered the photographs at trial. A three-judge panel of this Court found:

This issue has not been preserved for appellate review. Appellant challenged the admissibility of these photographs in a pre-trial motion to suppress in post-trial motions [sic], but when the Commonwealth offered the photographs at trial, appellant's counsel stated that he had no objection. Issues not preserved at each stage of review, by a specific allegation of error, are waived and cannot be raised in an appeal. Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975); see Commonwealth v. Ryan, 475 Pa. 559, 381 A.2d 138 (1977) (appellant contended that the trial testimony of two witnesses should have been suppressed as the fruit...