dissenting opinion of Pomeroy, J., joined by Eagen, C. J.
How later courts described this case
- dissenting opinion of Pomeroy, J., joined by Eagen, C. J.
Written by the judges who cited it.
The opinion
POMEROY, Justice,
dissenting.
The Court again gives retroactive application to its per se exclusionary rule relative to juvenile confessions, and I therefore again dissent. See, e. g., Commonwealth v. Lee, 470 Pa. 401 , 368 A.2d 690 (1977) (dissenting opinion of POMEROY, J., joined by JONES, C. J. and EAGEN, J.). This rule was embodied in Commonwealth v. McCutchen, 463 Pa. 90 , 343 A.2d 669 , a decision announced on July 7, 1975. The trial of James Jamison, this appellant, commenced on March 6, 1975. The Court makes this retrospective application notwithstanding its acknowledgment that the rule of McCutchen finds its antecedents in the decision of the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436 , 16 L.Ed.2d 694 (1966). 1 That decision, of course, was for sound policy reasons accorded only prospective applicability to cases wherein trials were commenced after the date of its announcement. Johnson v. New Jersey, 384 U.S. 719 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 (1966); Commonwealth v. Ware, 446 Pa. 52 , 284 A.2d 700 (1971) (Johnson adopted as a matter of state law). Inasmuch as the prospectivity rationale employed by the Supreme Court in Johnson is, perforce, *547 wholly applicable to the same question regarding this Court’s McCutchen holding, I see no basis whatever for this Court to chart a different course by according retrospective effect to its Miranda -based decision. 2 Indeed, no justification for doing so is vouchsafed to us in its opinion. I respectfully dissent.
EAGEN, C. J., joins in this dissenting opinion.
. Indeed, the Court holds that a defendant’s assertion of a Miranda violation in post-verdict motions fully suffices to preserve for appellate review a McCutchen claim. Opinion of the Court at 87, n.2.
. My disagreement with the merits of the McCutchen per se exclusionary rule relative to juvenile confessions as “unwise, unnecessary and unwarranted,” has been frequently reiterated. See Commonwealth v. Chaney, 465 Pa. 407, 410 , 350 A.2d 829, 831 (1975) (dissenting opinion of POMEROY, J., joined by JONES, C. J., and EAGEN, J.). See also Commonwealth v. Barry Smith, 472 Pa. 492 , 372 A.2d 797 (1977) (dissenting opinion).
. See Commonwealth v. McCutchen, 463 Pa. 90 , 343 A.2d 669 (1975).