Commonwealth v. McFeely

*402 HUTCHINSON, Justice,

concurring.

I join that portion of the majority opinion which states that appellant’s confession is admissible because it was sufficiently purged of taint from the illegal arrest. However, I cannot agree with the opinion’s analysis of United States v. Johnson, 457 U.S. 537 , 102 S.Ct. 2579 , 73 L.Ed.2d 202 (1982), and its effect. In that section of its opinion, the majority concludes we are not bound by Johnson because the tenuous majority which it commanded concluded that the question of retroactivity is not governed by the United States Constitution.

The application of newly announced judge-made law to pending cases is often loosely referred to as a “retroactive” application of the newly stated rule of decision. Somewhat cloudy distinctions are then drawn between those rules which were foreshadowed and those which were not. Johnson, 457 U.S. at 549, 551 , 102 S.Ct. at 2587 . Such loose reference confuses the normal and proper common law application of rules of decision to all cases not finally decided at the time the rule is announced with the relatively recent, and more novel, notion that rules of decision created by the federal courts in a constitutional context after a conviction has become final, should be applied in collateral attack, on that final conviction.

To my mind, it is only the application of new rules of decision to final judgments of conviction in a collateral attack on them which is retroactive in the common law sense. Such retroactivity constitutes an abnormal departure from common law principles and should be allowed only for the most compelling constitutional reasons. However, Johnson , like this case, involved a direct appeal from a conviction and its rule of decision is thus properly applied to our judgment of it. This appellant, whose conviction has not yet become final, seems to me entitled to the benefit of his Fourth Amendment rights as they are presently understood. If his case had come before us on appeal from an order entered in a post-conviction proceeding or other collateral attack on his conviction, I believe principles of finality *403 should properly limit him to his Fourth Amendment rights as they were understood when he was convicted.

Since this case is on direct appeal, the majority necessarily uses “retroactivity” in the loose sense referred to, in order to refuse application of a controlling rule of decision announced before appellant’s conviction was final. I cannot agree with that broad use of the term. See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 , 2 L.Ed. 49 (1801).

Even if I were to accept that, however, I would be compelled on the facts of this case to disassociate myself from the majority’s position because the United States Supreme Court has decided the specific issue of whether the constitutionally based rule of decision it announced in Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1981), should be applied to pending cases. It did so by expressly holding that the rule restricting warrantless searches must be so applied. See Johnson, supra. I think that decision is specific and requires us to apply the Payton prohibition on warrantless searches of a home to this case, despite our earlier holding in Commonwealth v. Miller, 490 Pa. 457 , 417 A.2d 128 (1980), that this particular prohibition, which we foreshadowed in Commonwealth v. Williams, 483 Pa. 293 , 396 A.2d 1177 (1978), should have only prospective application.