Com. v. Pugh

• Decision Date: 02 March 1978
• Citation: 476 Pa. 445,383 A.2d 183
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Julius PUGH, Appellant.
• Court: Pennsylvania Supreme Court

Page 183

383 A.2d 183

476 Pa. 445

COMMONWEALTH of Pennsylvania, Appellee, v. Julius PUGH, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 14, 1977.

Decided Jan. 26, 1978.

Reargument Denied March 2, 1978.

[476 Pa. 447] George P. Bannon, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Jane C. Greenspan, Asst. Dist. Atty., for appellee.

Before EAGEN, O'BRIEN, POMEROY, NIX and MANDERINO, JJ.

OPINION

EAGEN, Chief Justice.

Julius Pugh was convicted by a jury of murder of the third degree. Post-verdict motions were denied and a prison sentence of ten to twenty years was imposed. ¹ This appeal followed.

Pugh contends he is entitled to a new trial because of certain alleged errors in the prosecution process. The Commonwealth argues these issues have not been preserved for appellate review because Pugh failed to comply with Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), which requires that assignments of error be presented in written post-verdict motions. We do not accept the Commonwealth's position. The assignments of error were presented to the post-verdict motion court in a written "Memorandum in Support of Motions in Arrest of Judgment or for New Trial," and the court accepted and considered the merit of these assignments of error without objection. Thus, while we do not approve of this practice, Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), is controlling and we will consider the issues to be properly before us.

Pugh urges, inter alia, that the trial court erred in denying pretrial applications to suppress certain evidence which was later used against him at trial. Included in this category is evidence of oral and written statements Pugh is said to have made while in police custody. Specifically, Pugh maintains this evidence was obtained under impermissible circumstances, namely, without a prior knowing and intelligent waiver of constitutional rights and that the trial court erred in ruling otherwise. After an examination of the record we are unable to intelligently resolve the merits of this issue and will, for the reasons that follow, remand the record to the trial court for further proceedings.

The record discloses that the answers of the Commonwealth to the pretrial applications to suppress were not filed until the day fixed for the suppression hearing, a date well beyond the time permitted. ² Because of this, Pugh's counsel requested the suppression court to accept as true all well-pleaded facts in the applications. The request was denied for reasons not made clear. ³ In overruling the post-verdict motions, the trial court stated the suppression court had "discretion, under Rule of Criminal Procedure No. 20 to disregard the Commonwealth's technical failure to comply with the rules, if it believed the interests of justice so required."

Our research has not disclosed any "Rule of Criminal Procedure No. 20" justifying a disregard of Pa.R.Crim.P. 308(a)'s mandate, ⁴ and since there was nothing of record to show "good cause" for the late filing of the answers, the suppression court should have accepted as true all of the well-pleaded facts averred in Pugh's applications. ⁵ Commonwealth v. Eller,232 Pa.Super. 99, 332 A.2d 507 (1974).

The Commonwealth argues that, even if the suppression court erred in not following the mandate of Rule 308, supra, no prejudice resulted because all of the well-pleaded facts in the applications were eventually accepted as true in the court's adjudication disposing of the applications to suppress. While this may be correct in part, it is not completely so.

Pugh's claim that he did not knowingly and intelligently waive his constitutional rights before making the challenged statements was based in part ⁶ on the allegation that on the day "of the interrogation by the police, the defendant (Pugh) had taken an unknown quantity of prescriptive drugs."

In view of the untimely filing of the answers without "good cause shown," the suppression court was required to accept this factual averment in the applications as true. But this the suppression court failed to do. In fact, there is nothing in the court's findings or adjudication to indicate this fact was considered.

While the intake of drugs does not necessarily prevent one from knowingly and intelligently waiving constitutional rights, Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1976), it may well do so. To determine this all of the attending circumstances must be considered, including the type and quantity of the drug, the exact time or times the drug was consumed and whether an impairment of the faculties ensued. The instant record fails to provide this information.

We will, therefore, vacate the judgment of sentence and remand the record to the trial court for a new suppression hearing at which all relevant facts and circumstances are to be explored and considered. Following this, if the Court again determines the challenged evidence was obtained under constitutionally permissible circumstances, it will reinstate the judgment of sentence and Pugh may file a new appeal. But if the Court determines the challenged evidence should have been suppressed, then a new trial should be granted.

It is so ordered.

POMEROY and NIX, JJ., filed dissenting opinions.

JONES, former C. J., and ROBERTS, J., did not participate in the consideration or decision of this case.

POMEROY, Justice, dissenting.

As the opinion of the Court states, the failure of the Commonwealth to file a timely answer to appellant's pre-trial motion to suppress required, in the absence of a showing of a "good cause" for the failure, that the suppression court accept as true all well-pleaded facts averred in the appellant's motion to suppress. See Pa.R.Crim.P. 308. The Court is of the opinion that, when this is done, there is insufficient evidence to support the conclusion of the suppression court that the statements of the defendant were properly obtained and should be admitted into evidence. I believe, however, that the conclusions of the suppression court were amply supported and would affirm the judgment below. Hence this dissent.

In support of appellant's argument that he did not knowingly and intelligently waive his constitutional rights, Pugh alleged in his motion to suppress that on the "day of the interrogation by the police, (he) had taken an unknown quantity of prescriptive drugs." The majority, purporting to rely on Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1976) holds that before such a claim may be resolved, a court must determine all the attending circumstances including the "type and quantity of drug, the exact time or times the drug was consumed, and whether an impairment of the faculties ensued." (Ante, at p. 186). It therefore remands for a new suppression hearing. I think this disposition of the matter is in error.

First, the majority misinterprets what I understand to be our holding in Cornish, supra. In that case, this Court stated:

Cornish, in a related argument would have us rule, analogous to guilty plea situations, that the police should have inquired as to the extent of Cornish's drug intake once they were aware he used narcotics. We decline to create such a per se rule. The issue is one to be resolved by examining the totality of the circumstances, and the circumstances instantly established Cornish was in full control of his will. This is not to say that such an inquiry would not have been a preferable way for the police to have proceeded, but their not having done so does not automatically render the statement involuntary. Cf. Commonwealth v. McKinney, 453 Pa. 10, 306 A.2d 305 (1973). 471 Pa. at 268-69, 370 A.2d at 297.

Rather than lending support to appellant's position, therefore, Cornish expressly rejects the adoption of a per se rule as to what is required of the police where the suspect claims to be under the influence of drugs.

Second, and more importantly, I believe the critical inquiry in cases such as the present is whether the alleged consumption of drugs in any way impaired the ability of the appellant knowingly and intelligently to waive his rights. This is the task of the suppression judge. Thus, in Commonwealth v. Moore, 454 Pa. 337, 341, 311 A.2d 620, 622-23 (1973), we stated:

"A constitutional burden is upon the Commonwealth to show voluntariness of a confession by a preponderance of the credible evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (1972); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). Here the suppression judge obviously chose to believe the testimony of the two police officers as to appellant's condition and ability at the time the challenged statements were given, and not that of appellant. His findings of fact were categorical that appellant, in giving his two statements, was not affected by drugs or narcotics, or by withdrawal therefrom; and that they were 'freely, intelligently and voluntarily made.' As we observed in Commonwealth v. Smith, supra : 'An appellate court does not weigh evidence or pass upon the credibility of witnesses, and there is no basis for us to hold as a matter of law that the court's finding of voluntariness of the confession was not adequately supported and well within the court's discretion.'

In the case at bar, Judge Ivins, presiding over the suppression hearing, made similar categorical findings:

"From all the testimony, this Court concludes the defendant did have sufficient capacity to understand what was being said to him and the meaning of any statements.

"Accordingly, it is quite clear that when a defendant, as here, has been fully informed of his rights, any reasonable acknowledgment of understanding or a willingness to speak is acceptable; see U. S. v. Boykin (C.A.Pa.), 398 F.2d 483, to which certiorari was denied, 393 U.S. 1032 (89...