Commonwealth v. Smith , 449 Pa. 309 ( 1972 )

Opinion , by

Me. Justice Robeets,

In 1966 appellant William Smith, Jr., was tried by a jury and found guilty of second degree murder. A direct appeal to this Court resulted in a narrow affirmance of his judgment of sentence. Commonwealth v. Smith, 424 Pa. 9, 225 A. 2d 691 (1967).¹

On June 22, 1971, appellant filed a petition pursuant to the Post Conviction Hearing Act.² In that petition, which was dismissed without a hearing, appellant alleged that his confession, obtained on August 28, 1964, and introduced at trial, was secured in a manner violative of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964). We agree with appellant and accordingly reverse the judgment of sentence and remand for a new trial.³

The Commonwealth does not dispute the fact that during the police custodial interrogation prior to his confession appellant was not told explicitly of his right to remain silent.⁴ We have held on numerous occasions that such a warning is required after the decisional date of Escobedo v. Illinois, supra.⁵ Commonwealth v. Campbell, 442 Pa. 313, 275 A. 2d 64 (1971); Commonwealth v. Banks, 429 Pa. 53, 239 A. 2d 416 (1968) ; Commonwealth v. Walker, 428 Pa. 244, 236 A. 2d 765 (1968) ; Commonwealth v. Vivian, 426 Pa. 192, 231 A. 2d 301 (1967) ; Commonwealth v. Medina, 424 Pa. 632, 227 A. 2d 842 (1967); Commonwealth v. Jefferson, 423 Pa. 541, 226 A. 2d 765 (1967) ; Commonwealth v. Hardy, 423 Pa. 208, 223 A. 2d 719 (1966). Rather the Commonwealth contends that the issue is foreclosed to appellant because of this Court’s earlier decision in Commonwealth v. Smith, supra. We cannot agree.

Although this Court had several early opportunities to consider the Sixth Amendment foundations of Escobedo v. Illinois,⁶ the first opinion of this Court to fully consider the Fifth Amendment requirements of Escobedo v. Illinois was Commonwealth v. Hardy, 423 Pa. 208, 223 A. 2d 719 (1966). In Commonwealth v. Hardy, supra, Chief Justice, then Justice Jones, speaking for a unanimous Court, held that a confession is violative of Escobedo v. Illinois where the defendant “is not effectively warned of his constitutional right to remain silent.” Id. at 214, 223 A. 2d at 722.

Shortly thereafter, and still preceding this Court's decision in Commonwealth v. Smith, supra, we granted relief to a defendant who was “not advised of her right to remain silent” noting that “under the teaching of Escobedo” the absence of such a warning “precluded evidentiary use of the statements made.” Commonwealth v. Jefferson, 423 Pa. 541, 544, 226 A. 2d 765, 767 (1967) (Justice Eagen). In determining that Escobedo v. Illinois compelled such a warning this Court observed that in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), the United States Supreme Court made the following explanation of Escobedo v. Illinois: “ 'Our holding there stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interro-

gation, and we drew attention to that fact at several points in the decision. . . . This was no isolated factor, but an essential ingredient in our decision/ ” Id. at 544, 226 A. 2d at 767 (quoting from Miranda v. Arizona, 384 U.S. at 465, 86 S. Ct. at 1623).⁷

Commonwealth v. Smith, supra, stands as a temporary rejection of the view expressed in Commonwealth v. Jefferson, supra, and Commonwealth v. Hardy, supra. Appellant was never warned of his right to remain silent⁸ and the majority of the Court did not purport to make such a finding. Nevertheless, without mention of Escobedo v. Illinois, Commonwealth v. Jefferson, supra, or Commonwealth v. Hardy, supra, the Court denied relief and thus implicitly held that such a warning was no longer required.

The disposition reached by this Court in Commonwealth v. Smith, supra, a marked departure from our earlier decisional law, was not to be followed. In every ease subsequent to Commonwealth v. Smith, supra, this Court has firmly held that a defendant interrogated after the decisional date of Escobedo v. Illinois, supra, must be informed of his right to remain silent. Commonwealth v. Campbell, supra; Commonwealth v. Banks, supra; Commonwealth v. Walker, supra; Commonwealth v. Vivian, supra; Commonwealth v. Medina, supra. After reviewing the relevant case law and concluding that after Escobedo v. Illinois, supra, a defendant must be informed of his right to remain silent, this Court in Commonwealth v. Campbell, supra, made emphatic our rejection of the holding of Commonwealth v. Smith, supra: “Anything to the contrary in Commonwealth v. Smith, 424 Pa. 9, 225 A. 2d 691 (1967), is disapproved.” Id. at 317, n.2, 275 A. 2d at 66 n.2.

This Court has observed that an issue is not finally litigated for the purposes of the Post Conviction Hearing Act if there has been a change of law that applies to the date of defendant’s conviction. Commonwealth v. Cornitcher, 447 Pa. 539, 544-45 n.5, 291 A. 2d 521, 524 n.5 (1972); Commonwealth v. Gates, 429 Pa. 453, 457, 240 A. 2d 815, 817 (1968); see also Commonwealth v. Bonaparte, 210 Pa. Superior Ct. 93, 95, 232 A. 2d 12, 13 (1967); PCHA §3(12), 19 P.S. §1180-3(12) (Supp. 1971). In the instant case this Court has determined, both prior and subsequent to the date of appellant’s direct appeal, that Escobedo v. Illinois requires as a constitutional minimum that a defendant in custody be expressly informed of his right to remain silent. See Commonwealth v. Campbell, supra, and cases cited therein. We have no hesitancy in holding that this interpretation of Escobedo v. Illinois, supra, which is mandated by the direct language of that decision itself and buttressed by subsequent United States Supreme Court cases discussing Escobedo v. Illinois,⁹ is applicable to the date of defendant’s conviction.¹⁰ We thus hold that in light of the conceded failure of the police to expressly inform appellant of his right to remain silent, appellant is entitled to a new trial.

The order of the trial court denying post-conviction relief is reversed. The judgment of sentence is reversed and appellant is awarded a new trial.

Mr. Justice Eagen concurs in the result.

1 Justice Musmanno wrote au opinion in which only two justices joined affirming the judgment of sentence. Justice Cohen concurred in the result, Justice Eagen wrote a dissenting opinion in which Chief Justice, then Justice Jones and the writer joined.

2 Post Conviction Hearing Act, Act of January 24, 1966, P. U. (1965) 1580, §§1 et seq., 19 P.S. §§1180-1 et seq. (Supp. 1970).

3 While in certain very exceptional circumstances the introduction of an involuntary confession may be harmless error, see Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174 (1972), that definitely is not the case here. The Commonwealth’s case against appellant, except for the confession, was based entirely on circumstantial evidence. We cannot find on this record that the introduction of the involuntary confession was harmless error. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726 (1969) ; Chapman v. Califorma, 386 U.S. 18, 87 S. Ct. 824 (1967) ; Commonwealth v. Padgett, 428 Pa. 229, 237 A. 2d 209 (1968) ; Commonwealth v. Pearson, 427 Pa. 45, 233 A. 2d 552 (1967) ; cf. Commonwealth v. Vivian, 426 Pa. 192, 196 n.2, 231 A. 2d 301, 303 n.2 (1967).

4 The record discloses that the following information was given appellant by the police before his confession: “Q. [Police Officer] William, are you willing to give a voluntary statement about this assault knowing that the statement will be used in court if this ease should come to trial and also knowing that you have the right to counsel? A. [Appellant] Yes. Q. William, do you understand that you are not compelled to make a statement without consulting an attorney? A. Yes. Q. Are you willing to make a statement without consulting an attorney? A. Yes.”

5 Escobedo v. Illinois was decided on June 22, 1964, two months before appellant’s confession on August 28, 1964.

6 Compare Commonwealth v. Coyle, 415 Pa. 379, 203 A. 2d 782 (1964) (confession involuntary only where defendant requests and was denied counsel and defendant not informed of his right to remain silent) with Commonwealth v. Negri, 419 Pa. 117, 213 A. 2d 670 (1965) (Commonwealth v. Coyle, supra, overruled—defendant entitled to relief even without a request for counsel) Commonwealth v. Negri, supra, was in turn overruled in Commonwealth v. Schmidt, 423 Pa. 432, 224 A. 2d 625 (1966) (defendant not unconstitutionally deprived of assistance of counsel unless he requests such assistance and is not effectively warned of his right to remain silent) .

7 See also Johnson v. New Jersey, 384 U.S. 719, 733-34, 86 S. Ct. 1772, 1781 (1966) : “[T]he precise bolding of Escobedo was that statements elicited by the police during an interrogation may not be used against the accused at a criminal trial, ‘[where] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent. . . .’ ” (Citation omitted).

8 See note 4, supra.

9 See footnote 7 and accompanying text.

10 See, e.g., Commonwealth v. Stevens, 429 Pa. 593, 240 A. 2d 536 (1968), and Commonwealth ex rel. Berkery v. Myers, 429 Pa. 378, 239 A. 2d 805 (1968). In both these eases this Court concluded upon direct review that tacit admissions were properly admitted and affirmed the judgments of sentence. Upon review of each defondant’s collateral attack, we concluded, following the Third Circuit’s opinion in United States ex rel. Staino v. Brierly, 387 F. 2d 597 (3d Cir. 1967), that introduction of the tacit admissions was constitutionally impermissible, and thus awarded a new trial.