Commonwealth v. Hilliard , 471 Pa. 318 ( 1977 )

PER CURIAM.

A majority of the Court agrees that the judgment of sentence should be reversed and a new trial granted.

Mr. Justice Roberts files an Opinion Announcing the Judgment of the Court, stating two grounds for reversal and grant of a new trial. Mr. Justice O’Brien joins Part II of the Opinion Announcing the Judgment of the Court. Mr. Justice Nix joins Part I of the Opinion Announcing the Judgment of the Court. Mr. Justice Manderino joins Parts I and II of the Opinion Announcing the Judgment of the Court.

Mr. Justice EAGEN files a Dissenting Opinion in which Mr. Chief Justice JONES and Mr. Justice POMEROY join; Mr. Justice NIX joins in Part V of this Dissenting Opinion.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ROBERTS, Justice.

Appellant is entitled to a new trial for at least two reasons. First, a statement taken from appellant, the product of interrogation to which counsel was denied access, was admitted at trial. Second, appellant’s request for an instruction on voluntary manslaughter was denied.

I

The interrogation of appellant, while he was in custody at the Police Administration Building in Philadelphia, began at 1:30 p. m. December 26, 1972. Appellant’s wife contacted the Defender’s Association to obtain counsel for him. An Assistant Defender arrived at the Police Administration Building, and requested to see appellant, at 2:15 p. m. He was told appellant was not being held. He asked again at 3:00 p. m., and at 3:20 p. m. Both times counsel was told appellant was not there. When he returned at 3:40 p. m., he was finally told that appellant was there, but did not want to see an attorney. The interrogation continued until 4:00 p. m. Counsel was afforded no opportunity to see appellant until 8:00 p. m.

The statement taken from appellant during this interrogation should not have been admitted at trial. A statement taken during custodial interrogation, without a valid waiver of counsel, cannot be admitted against a defendant at trial. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

If counsel has expressed a desire to be present during interrogation, a waiver of counsel obtained in counsel’s absence should be held invalid as a matter of law. Commonwealth v. Hawkins, 448 Pa. 206, 220, 292 A.2d 302, 309 (1972) (Dissenting Opinion of Nix, J., joined by Roberts and Manderino, JJ.). Appellant’s failure to request counsel, when his attorney has been denied access and appellant has not been informed of his attorney’s availability, cannot support a determination that he has waived his right to counsel. Commonwealth v. Yates, 467 Pa. 362, 366, 357 A.2d 134, 136 (1976) (Dissenting Opinion of Roberts, J., joined by Nix and Manderino, JJ.).

This view is in accord with the rule adopted by the New York Court of Appeals: once counsel has undertaken to represent a defendant, the defendant cannot waive his right to counsel in custody unless counsel is present. People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 (1976). As Chief Judge Breitel wrote in the opinion of the court:

“The rule that once a lawyer has entered the proceedings in connection with the charges under investigation, a person in custody may validly waive the assistance of counsel only in the presence of a lawyer breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary. Indeed, it may be said that a right too easily waived is no right at all.”

Id. at 484, 384 N.Y.S.2d at 422, 348 N.E.2d at 898 (1976) (Citations omitted).

The principle that a denial of counsel requires suppression of a defendant’s statement applies regardless whether the denial resulted from an “honest mistake” by the police. The focus must be on the rights of the accused, not the innocence or culpability of the police. Cf. United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 353 (1976) (“Nor do we believe the constitutional obligation is measured by the moral culpability or the willfulness of the prosecutor.”); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963) (Denial of appellant’s constitutional right entitles him to a new trial “irrespective of the good faith or bad faith of the prosecution.”).

Moreover, while the conduct of the police in denying counsel access to appellant may initially have resulted from an honest mistake, their subsequent actions reflect a lack of concern for the rights of the accused. Counsel’s repeated efforts to see appellant should have put the police on notice that appellant might have been at the Police Administration Building. Advising counsel that appellant did not want to see him, when appellant had not been informed that his attorney was available, was inexcusable. Such mistakes cannot justify a denial of the appellant’s constitutional rights.

II

Appellant’s conviction should also be reversed because the trial court refused to instruct the jury on voluntary manslaughter. Failure to grant appellant’s requested instruction denied him due process. United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. 1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975); Commonwealth v. Cain, 471 Pa. 140, 171, 369 A.2d 1234, 1250 (1977) (Opinion in Support of Reversal) (Opinion of Roberts, J., joined by O’Brien and Manderino, JJ.). This due process right to a requested voluntary manslaughter instruction should be applied to all defendants whose convictions were on direct appeal at the time Matthews was decided. Commonwealth v. Cain, 471 Pa. 140, 171, 369 A.2d 1234, 1250 (1977) (Opinion in Support of Reversal) (Opinion of Roberts, J., joined by O’Brien and Manderino, JJ.).

Judgment of Sentence reversed and a new trial granted.

O’BRIEN, J., joins Part II of this Opinion. NIX, J., joins Part I of this Opinion. MANDERINO, J., joins Parts I and II of this Opinion.