(concurring).
I concur in the decision of the Court that the issue of unnecessary delay between arrest and arraignment has been waived in this case. In reaching this result, the Court returns to the “fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court”. Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d 777, 779 (1975), quoted in the Opinion of the Court, ante at 53. In so doing, the Court confesses error in having taken a wrong turn in the adoption and following of footnote one in Commonwealth v. Wayman, 454 Pa. 79, 82 n. 1, 309 A.2d 784, 786 n. 1 (1973), with its wholly artificial distinction between “grounds” and “theories”. I applaud this development, even though a few horses were stolen before the barn door was locked.1
*128While not necessary to its decision, in view of the rationale set forth in part II of the Opinion, the Court nevertheless takes occasion to reaffirm another recent line of cases, to my mind at least as mischievous as the Way-man footnote, viz., those which give retrospective application to the prophylactic exclusionary rule contained in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). I must again register emphatic disagreement with this conclusion as unsupported by authority and unwise as policy.2
The Court bases its reasoning on the preexistence of our rule of criminal procedure relating to prompt arraignment.3 It explains: “In the instant situation the rules of criminal procedure, at the time of the arrest in question, expressly set forth the required standard of conduct. That standard was in no way altered by our decision in Commonwealth v. Futch, supra. Rather, the Futch decision merely explained the consequences that would follow a violation of the prescribed conduct.” Opinion of the Court, ante at 50. The logic of the Court’s conclusion that retroactivity is thus avoided escapes me. An example will suffice, I hope, to indicate the fallacy of this approach.
*129It is clear that the Fourth Amendment’s prohibition against “unreasonable searches and seizures” existed long before the Supreme Court of the United States de-« cided the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Mapp, the Court extended to the states the rule prohibiting the use of unconstitutionally seized evidence. If the views of our Court today on retroactivity were correct, then the United States Supreme Court should have concluded that the exclusionary rule should be applied to all cases arising since the adoption of the Fourth Amendment. In fact, however, the Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), struggled with the question of the degree of retroactivity to be given the Mapp decision. Its conclusion was that Mapp was not to be given full retroactive effect in that it was not to be applied to any case finally decided prior to the date of the Mapp decision. By the same token, the mere fact that our rule of criminal procedure requiring prompt arraignment was in existence some seven years prior to the Futch decision does not by any means serve to erase the retroactivity issue.
It is not inappropriate to reiterate here the basis of my conviction that retroactive treatment should not be accorded the Futch exclusionary rule, which, like its federal prototype 4 was not based on constitutional considerations, but on the Court’s supervisory power over the administration of justice in Pennsylvania. As I stated in Commonwealth v. Dutton, supra, even if we were to apply the criteria relevant to determining retroactivity as to a novel constitutional pronouncement, the Futch rule would not qualify;
“Examining Futch in this light, I can only conclude that its purpose will be fully realized by a solely prospective application.
*130“The Futch exclusionary rule contributes nothing to the certainty of the judicial factfinding process. As Mr. Justice Eagen pointed out in his concurring opinion in Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973), the rule is directed entirely to police conduct prior to trial and operates irrespective of the reliability or probative value of ,the evidence excluded. One may hope that the threat of exclusion will help to deter dilatory or illegal police conduct, but it can hardly be supposed that application of the exclusionary rule to events long past will add anything to the rule’s deterrent force for the future. On the other hand, the Court’s opinion may have grave repercussions on the administration of justice. No one knows how many prosecutions have been instituted since January 1, 1965 in reliance on our pre-Futch rules of admissibility, but there must have been a great many. Now, it appears, any defendant convicted on the basis of evidence which under Futch should be excluded is entitled to a new trial, regardless of the fairness of his original trial. I see nothing to be gained from saddling our judicial system with this potentially staggering burden.” 453 Pa. at 552-53, 307 A.2d at 241 (footnote omitted).
Some idea of the degree to which the judicial system has already been burdened by the retrospective treatment accorded to Futch may be gained merely by a listing only of the cases which have reached this Court wherein the arrest of the defendant preceded the date of announcement of the Futch decision.5 Obviously this listing re*131veals only the “top of the iceberg” as far as the total effect on the courts of this Commonwealth is concerned. While it may be that most of such cases have by now been disposed of, I see no justification for the perpetuation of a rule so mistaken as the one under consideration.
JONES, C. J., and EAGEN, J., join in this concurring opinion.. For myself, I see no need for the heavy reliance the Court places on Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), in reaching this result. The main thrust of Commonwealth v. Clair was to discard the limited exception which had previously existed in criminal cases to the general rule of the necessity to preserve points for appeal by proper and timely exception or objection at the trial level, the exception being that if the error were “basic and fundamental”, it might be entertained. Similar action had recently been taken with regard to the same exception in civil cases. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Believing that there was utili*128ty in this exception, designed to assure fundamental fairness in the conduct of a trial, I was obliged to dissent in both these cases. This view in no way dilutes my approval of the recent emphasis of the Court, exemplified by the instant case, on the necessity to preserve issues for appellate review by the appropriate means at trial and intermediate stages.
. For prior expressions of dissent to retrospective treatment of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), see my Dissenting Opinions in Commonwealth v. Cullison, 461 Pa. 301, 304-305, 336 A.2d 296, 297 (1975); Commonwealth v. Johnson, 459 Pa. 171, 176-177, 327 A.2d 618, 620 (1974); Commonwealth v. Wilson, 458 Pa. 285, 288, 327 A.2d 621, 622-23 (1974); Commonwealth v. Cherry, 457 Pa. 201, 206, 321 A.2d 611, 613 (1974); Commonwealth v. Dixon, 454 Pa. 444, 448, 311 A.2d 613, 615 (1973); Commonwealth v. Dutton, 453 Pa. 547, 551, 307 A.2d 238, 240 (1973).
. Pa.R.Crim.P. 130, 19 P.S. Appendix (Supp.1974-75), formerly Rules 116 and 118. See the Opinion of the Court, ante at 50 n. 4 for a history of the rule.
. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).
. Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973); Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Terry, 457 Pa. 185, 321 A.2d 654 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Wilson, 458 Pa. 285, 327 A.2d 621 (1974); Com*131monwealth v. Blagman, 458 Pa. 431, 326 A.2d 296 (1974); Commonwealth v. Wilson, 458 Pa. 285, 329 A.2d 881 (1974); Commonwealth v. Bryant, 461 Pa. 3, 334 A.2d 603 (1975); Commonwealth v. Davis, 460 Pa. 644, 334 A.2d 275 (1975); Commonwealth v. Barilak, 360 Pa. 449, 333 A.2d 859 (1975); Commonwealth v. Hamilton, 460 Pa. 686, 334 A.2d 588 (1975); Commonwealth v. Abner, 460 Pa. 321, 333 A.2d 747 (1975); Commonwealth v. Cullison, 461 Pa. 301, 336 A.2d 296 (1975); Commonwealth v. Doamaral, 461 Pa. 517, 337 A.2d 273 (1975).