Commonwealth v. Bowen , 482 Pa. 453 ( 1978 )

POMEROY, Justice,

dissenting.

There is no doubt in my mind that the delay between arrest and arraignment in this case was inordinate and in manifest violation of our rule which requires prompt arraignment, Pa.R.Crim.P. 130. As I have pointed out before, however,¹ the exclusionary rule of Futch was designed as a preventive measure to put an end to continual disregard of the rule by the police. Like other constitutionally related exclusionary rules, it says to police and prosecutors that if they obtain evidence illegally, it may not be used at trial. Conceding the validity of this approach,² exclusion obviously can have no deterrent effect whatever on police action which took place in the past, prior to the announcement of the rule. Such was the case here. Bowen’s arrest occurred on February 21, 1971; the exclusionary rule of Futch was not announced until over a year later, on April 20, 1972. To exclude now the confessions obtained before the new rule existed can hardly be justified as a deterrent to police misconduct; it is rather the needless imposition of a penalty against society itself.³

EAGEN, C. J., joins in this dissenting opinion.

1 . See Commonwealth v. Dutton, 453 Pa. 547, 551, 307 A.2d 238, 240 (1973) (dissenting opinion of POMEROY, J., joined by JONES, C. J., and EAGEN, J.). See also my dissenting opinions in Commonwealth v. Smith, 472 Pa. 414, 420, 372 A.2d 761, 764 (1977) (joined by EAGEN, C. J.); Commonwealth v. Cullison, 461 Pa. 301, 304, 336 A.2d 296, 297 (1975) (joined by JONES, C. J., and EAGEN, J.); Commonwealth v. Johnson, 459 Pa. 171, 176, 327 A.2d 618, 620 (1974) (joined by JONES, C. J., and EAGEN, J.); Commonwealth v. Wilson, 458 Pa. 285, 288, 327 A.2d 621, 622 (1974) (joined by JONES, C. J. and EAGEN, J.); Commonwealth v. Cherry, 457 Pa. 201, 206, 321 A.2d 611, 613 (1974) (joined by JONES, C. J., and EAGEN, J.); Commonwealth v. Dixon, 454 Pa. 444, 448, 311 A.2d 613, 615 (1973) (joined by JONES, C. J., and EAGEN, J.), and my concurring opinion in Commonwealth v. Mitchell, 464 Pa. 117, 127, 346 A.2d 48, 53 (1975) (joined by JONES, C. J., and EAGEN, J.).

2 . The pros and cons of the “exclusionary rule” and the situations in which it should be applied Continue to be matters of debate. See, e. g., Y. Kamisar, “Is the Exclusionary Rule an ‘Illogical’ or ‘Unnatural’ Interpretation of the Fourth Amendment?”, 62 Judicature 67 (August, 1978).

3 . I note that the Court’s opinion does not hold that the confession was coerced or that it was involuntary under the “totality of the circumstances” test.