Commonwealth v. Cherry

Dissenting Opinion by

Mr. Justice Pomeroy :

The Court again today, without any discussion, elevates to constitutional status and grants retroactive effect to a rule expressly adopted under this Court’s supervisory powers as a means of regulating police conduct prior to trial. There is simply no jurisprudential reason or justification for giving to the exclusionary rule established in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) a retrospective application so as to control pre-trial conduct, such as that here involved, which took place months before our Futch decision.

For the reasons stated in my dissenting opinions in Commonwealth v. Dixon, 454 Pa. 444, 448, 311 A.2d 613, 615 (1973), and Commonwealth v. Dutton, 453 Pa. 547, 551, 307 A.2d 238, 240 (1973), and those advanced by Mr. Justice Eagen in his concurring opinion in Commonwealth v. Tingle, 451 Pa. 241, 247, 301 A.2d 701, 704 (1973), I must register my emphatic dissent to the Court’s mandate of a new trial in the present case.

Mr. Chief Justice Jones and Mr. Justice Eagen join in this dissenting opinion.