Commonwealth v. Leamer

Dissenting Opinion by

Mb. Justice Manderino :

A defendant exercising his constitutionally guaranteed right of appeal is entitled to a judgment on the *87 merits according to constitutional rights as known and understood at the time his constitutionally guaranteed appeal is being decided.

The non-retroactive doctrine which is sometimes used—and sometimes not—to judge the merits of constitutional questions in constitutionally mandated appeals is built upon a quicksand of logic. For courts to speak of old and new constitutional rights based on calendar cut-off dates, established by judicial decrees, involves the usurpation of authority reserved to the people—they alone can amend and, thus, alter constitutional rights effective on a day certain.

Courts, in exercising judicial authority, perpetually receive new insight from the ever increasing knowledge of the arts and sciences. These new insights result in new applications of unchanging constitutional principles to age-old and well-known situations. The arts and sciences continually teach us more about ourselves as members of society and our relationships to each other. In deciding the justice of any man’s cause, a new awareness of constitutional injustice should not be arbitrarily ignored because of the calendar. However, because rational men may provide for finality in the appellate process, a constitutionally erroneous result occurring in that process may be insulated from collateral attack unless legislative enactments otherwise provide. See §3(c)(12) of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, §3, 19 P.S. 1180-3(c) (12).

I dissent. The non-retroactive doctrine should not have barred some of the constitutional claims presented by the defendant.