Com. v. Smith
| Citation | 297 A.2d 810,449 Pa. 309 |
| Parties | COMMONWEALTH of Pennsylvania v. William SMITH, Jr., Appellant. |
| Decision Date | 17 November 1972 |
| Court | United States State Supreme Court of Pennsylvania |
Harold N. Fitzkee, Jr., Dist. Atty., Samuel K. Gates, Asst. Dist. Atty., York, for the Commonwealth.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.
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, 12 L.Ed.2d 977 (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); Commonwealthv. 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, 16 L.Ed.2d 694 (1966), the United States Supreme Court made the following explanation of Escobedo v. Illinois:
Id. 423 Pa. 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 silent 8 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 case 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. 442 Pa. 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--545 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.Super. 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 to 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.
The majority, in awarding a new trial to this appellant whose judgment of sentence as a convicted murderer we have previously affirmed, overlooks important dates and reaches a result which is neither authorized by our legislature nor required by the federal constitution. I must respectfully dissent.
The background facts bearing on the legal issue may be briefly stated: In the early morning of August 28, 1964, Mary Louise Green was found in a mutilated and dying condition in a vacant lot of the city of York. That same day William Smith, Jr., the appellant here, was questioned by police and confessed that he had assaulted the girl. His statement was reduced to writing and began as follows:
Following is the voluntary statement of William (NMN) Smith Jr. age 28 yrs of 333 E. King St. York, Pa. This statement is in reference to the assault reported on Louise Mary Green of 138 E. Newton St. This assault occurred on the College Campus Playground located at the old Y.J.C. Building at College and Duke Sts.
The confession then followed in question and answer form, preceded by the dialogue set forth in footnote 4 of the majority opinion, which for convenience is reproduced here:
Q. William, are you willing to give a voluntary statement about this assault, knowing that this statement will be used in Court if this case should come to trial and also knowing that you have right to counsel?
A. Yes.
Q. William do you understand that you are entitled to an Attorney?
A. Yes.
Q. William you do 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.
After relating the events surrounding the fatal assault, Smith then read and signed the following:
I have made this statement of my own free will and accord, without any threats being made to me or any force used. I have not had any promises made to me and I have also been advised that if this case should go to court it may be used against me as evidence. After reading this statement and finding the facts as I have stated them I am willing to sign the same.
William Smith, Jr. was convicted of second degree murder 1 and sentenced to a term of 10 to 20 years imprisonment. He appealed that judgment of sentence to this Court directly, arguing that the above statement was obtained through violation of his constitutional rights. We did not agree, and affirmed the judgment. Commonwealth v. Smith, 424 Pa. 9, 225 A.2d 691 (1967).
Smith has now filed a petition under the PCHA, raising exactly the issue decided on his direct appeal. The majority concludes that the law under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as interpreted by this Court has changed since the date of our decision in Smith's direct appeal, and that, therefore, the issue has not been 'finally litigated' within the meaning of section 4 of the PCHA, 19 P.S. § 1180--4 (Supp. 1972--73). I find this conclusion insupportable.
To demonstrate that the law has changed subsequent to our decision in Smith, supra, the Court cites (page 5 of the majority opinion) the case of Commonwealth v. Campbell, 442 Pa. 313, 275 A.2d 64 (1971), 'and cases cited therein.' An examination of Campbell, however, reveals...
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