Com. v. Clark

• Citation: 198 Pa.Super. 64,181 A.2d 859
• Parties: COMMONWEALTH of Pennsylvania v. Alvin CLARK, Appellant.
• Decision Date: 13 June 1962
• Court: Pennsylvania Superior Court

Page 859

181 A.2d 859

198 Pa.Super. 64

COMMONWEALTH of Pennsylvania v. Alvin CLARK, Appellant.

Superior Court of Pennsylvania.

June 13, 1962.

Application for Allocatur Denied Aug. 10, 1962.

Alvin Clark in pro. per.

Edward C. Boyle, Dist. Atty., William Claney Smith, Asst. Dist. Atty., Pittsburgh, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

RHODES, Presiding Judge.

Defendant was charged with violating the Anti-Narcotics Act of July 11, 1917, P.L. 758, as amended, 35 P.S. § 851 et seq., ¹ and indicted in the Court of Quarter Sessions of Allegheny County at No. 316, April Sessions, 1960, on April 14, 1960, and at No. 277, May Sessions, 1960, on May 13, 1960. Defendant was subsequently tried, convicted, and sentenced.

A drug addict called defendant in the presence of the police and made arrangements to meet defendant on a street in Rankin, Allegheny County, whereupon defendant was arrested at about 7 p. m. on March 31, 1960, near his room at 205 Miller Street, Rankin. Later that evening the police entered the room at 205 Miller Street, where narcotics were found in a locked box, the key to which defendant had in his possession. This additional room rented by defendant was about a block away from the police station. ²

No motions were made prior to indictment or prior to trial attacking the validity of the search or the admissibility of the evidence.

At the trial defendant's counsel made an oral motion to exclude the narcotics on the ground they were obtained through an illegal search and seizure. The motion was denied. Motions in arrest of judgment and for a new trial were filed, and refused by the court below; sentence was deferred and then imposed on August 18, 1961. Defendant has appealed.

Appellant contends that the evidence, including heroin, obtained by the police through a search of his room at 205 Miller Street without a warrant should have been excluded as obtained through an illegal search and seizure, citing in this Court the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

Appellant's trial took place on November 7, 1960. His motions in arrest of judgment and for a new trial filed on November 14, 1960, raised no question concerning evidence obtained through an alleged illegal search and seizure. Consequently, in its opinion filed on July 18, 1961, the court below, in disposing of appellant's post-conviction motions, did not pass upon the question of evidence obtained through an alleged illegal search and seizure. Subsequently, on August 14, 1961, appellant made a belated and unsuccessful attempt in the court below to raise the question of the admissibility of the evidence obtained through the search.

The record shows that appellant and his counsel knew the nature of the evidence and that it was seized at or about the time of appellant's arrest. See DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614; Application of Bogish, 69 N.J.Super. 146, 173 A.2d 906, 909. It may be that the question of the alleged illegally obtained evidence was not timely raised, but the fact that its admission was not properly raised in the court below at all is controlling on appeal. Com. v. Mays, 182 Pa.Super. 130, 126 A.2d 530; Com. v. Gomori, 192 Pa.Super. 325, 330, 161 A.2d 649. Matters not raised by proper post-conviction motions or considered in the court below cannot be invoked on appeal in this Commonwealth even though they involve constitutional questions. Com. v. Klick, 164 Pa.Super. 449, 453, 65 A.2d 440; Com. ex rel. Hellinger v. Day, 178 Pa.Super. 232, 236, 116 A.2d 76, certiorari denied 350 U.S. 941, 76 S.Ct. 316, 100 L.Ed. 821. Hence, application of Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, is not here involved. '* * * the Due Process Clause has never been perverted so as to force upon the forty-eight States a uniform code of criminal procedure. Except for the limited scope of the federal criminal code, the prosecution of crime is a matter for the individual States. The Constitution commands the States to assure fair judgment. Procedural details for securing fairness it leaves to the States. It is for them, therefore, to choose the methods and practices by which crime is brought to book, so long as they observe those ultimate dignities of man which the United States Constitution assures.' Carter v. Illinois, 329 U.S. 173, 175, 67 S.Ct. 216, 218, 91 L.Ed. 172, 175.

Moreover, in any event, it would seem that the trial court could properly rely on the law at the time of trial and conviction as announced in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, on the question of illegally obtained evidence in state courts prior to Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, decided June 19, 1961, and overruling Wolf v. Colorado on this question. ³

As Mr. Justice Frankfurter said in Abel v. United States, 362 U.S. 217, 235, 236, 237, 80 S.Ct. 683, 695, 4 L.Ed.2d 668, 684, 685, referring to the law announced by the Supreme Court of the United States in the earlier search and seizure cases of Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653: 'In view of their judicial context, the trial judge and the Government justifiably relied upon these cases for guidance at the trial; * * *. It would under these circumstances, be unjustifiable retrospective lawmaking for the Court in this case to reject the authority of these decisions. * * * Judged by the prevailing doctrine, the search of petitioner's hotel room was justified.' See Warring v. Colpoys, 74 App.D.C. 303, 122 F.2d 642, 646, 136 A.L.R. 1025 (D.C.Cir.1941), certiorari denied 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543; Gaitan v. United States, 295 F.2d 277 (September 27, 1961); Application of Bogish, 69 N.J.Super. 146, 173 A.2d 906. See, also, Com. v. Scoleri, 399 Pa. 110, 129, 130, 160 A.2d 215.

It would be unjust to hold the trial court to be in error in basing its action on decisions...