Com. v. Hilliard

• Decision Date: 28 February 1977
• Parties: COMMONWEALTH of Pennsylvania v. Thomas HILLIARD, Appellant.
• Court: Pennsylvania Supreme Court

Page 322

370 A.2d 322

471 Pa. 318

COMMONWEALTH of Pennsylvania v. Thomas HILLIARD, Appellant.

Supreme Court of Pennsylvania.

Argued June 24, 1975.

Decided Feb. 28, 1977.

Nolan N. Atkinson, Jr., Jack, Myers & Atkinson, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

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,--- Pa. ---, ---, 369 A.2d1234, 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, --- Pa. ---, ---, 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.

EAGEN, Justice, dissenting.

Appellant, Thomas Hilliard, was convicted by a jury of murder of the first degree, aggravated robbery, conspiracy, assault and battery, and aggravated assault and battery. Following the denial of post-verdict motions a sentence of life imprisonment was imposed on the murder conviction. Prison sentences were also imposed on the robbery conviction (10--20 years), the conspiracy conviction (1--2 years), and the assault and battery convictions (1 1/2--3 years). ¹ Hilliard filed a direct appeal to this Court from the judgment of sentence on the murder conviction. The judgments of sentence on the other convictions were appealed to the Superior Court, which certified that appeal to this Court.

Hilliard asserts seven trial errors which he urges require a reversal of the judgments and the grant of a new trial. ² I would affirm the judgments of sentence.

The sufficiency of the evidence to warrant the jury's findings of guilt is not challenged; nonetheless, I have carefully studied the record and determined it establishes the following: On December 23, 1972, at approximately 1 a.m., two men entered Cassidy's Bar at Ninth and Venango Streets in Philadelphia. One of the men was masked and armed with a shotgun. The other man, who was not masked and who was later identified by three eyewitnesses as Hilliard, drew a revolver, jumped behind the bar and at gunpoint ordered the bartender, John Cassidy, to open the cash register and to get a bag. As Cassidy secured a bag, Hilliard picked up a pistol which Cassidy kept behind the bar and then directed Cassidy to put the money from the cash register into the bag. At the same time the man with the shotgun attempted to take money out of the trouser pocket of one Lee Hicks, a patron of the bar, after having already taken Hicks' wallet. Hicks, however, resisted violently. He grabbed the shotgun and a struggle ensued between Hicks and the masked gunman. As these two fought, another patron, William Coates, began throwing bar stools at Hilliard behind the bar. After Coates had thrown three or four stools, Hilliard fired two shots at him and moved from behind the bar in his direction. Coates and Hilliard began grappling and at one point during their combat they were facing each other with Coates attempting to subdue his opponent by squeezing him in bearhug fashion. Hilliard, however, had his arms free and he placed his revolver at Coates' back and pulled the trigger. Coates died from the resultant gunshot wound. Hilliard then stepped away from the fallen Coates and almost immediately was confronted by the cook at Cassidy's Bar, Richard Ray. When Hilliard ordered him to get out of the way, Ray grabbed at Hilliard's weapon and Hilliard shot him in the stomach. While Hilliard and Coates struggled, Hicks, with the aid of several other patrons, wrested the shotgun away from the masked man and began beating him with it. At this point in the fracas, a third gunman, who apparently had been stationed at the door, stepped into the bar and fired a number of shots at the group beating the masked man. The three gunmen then ran out of the bar. Cassidy took a rifle from under the bar and fired two shots at Hilliard before rifle jammed. After the fleeing gunmen were out of the bar Cassidy ran to a side door and fired at least three more shots in the direction of their flight. The three gunmen escaped in a white Pontiac driven by a fourth man. The entire incident lasted about five minutes. ^2A

Hilliard's defense was as follows: On the evening of the incident he was in the company of Larry Bennett, ...