*1
correctly
post-sentence
anee
notes that
motions to withdraw
should be
when withdrawal
granted only
necessary
is
Starr,
Commonwealth v.
injustice.
correct a manifest
Pa.
COMMONWEALTH JOHNSON, Appellant. Robert Pennsylvania. Court of Submitted Jan. 1979.
Decided March 1979. *2 Easton, Defender, ap- Pasline, Asst. Public Harris S. pellant. Easton, for Goodman, Atty., appellee. Asst. Dist.
Allan B. O’BRIEN, ROBERTS, NIX, EAGEN, J., and Before C. LARSEN, JJ. MANDERINO
OPINION MANDERINO, Justice: 2, 1975, Johnson, Robert was convicted May appellant,
On
conspiracy, possession
criminal
jury
robbery,
an-
endangering
offense
prohibited
weapon,
recklessly
trial,
motions were de-
suppression
other
Prior to
person.
denied,
appellant
were also
nied. Post-verdict motions
fifteen years
sentenced
and one-half to
from seven
Court,
raised
In an
prison.
appeal
him. As
adversely
various issues which were decided
counsel,
one issue
involving
effectiveness оf
the Superior
Court remanded the matter
to the trial court for an eviden-
Johnson,
tiary hearing. Commonwealth v.
247 Pa.Super.
208,
Appellаnt contends that all statements gave which he the police suppressed should have been because he was not properly advised of his constitutional rights. agree We therefore reverse the judgment grant sentence and appel- lant a new trial.
When the
contends
that
prosecution
an accused has
waived a constitutional
right,
prosecution has a heavy
burden of
that an
proving
accused has exercised a knowing
and intelligent waiver of
Commonwealth v.
right.
*3
Romberger, 464 Pa.
Appellant and his co-defendant were arrested for robbery a restaurant. were They taken to police head- quarters where their Miranda were read a version of they rights and then given a written of that copy to statement read. Appellant lаter same version of his Miran- signed da rights. Subsequently, appellant gave oral statements to the police. He refused to make written any statements without an attorney present. his Miranda rights by the
Appellant was informed following statements:
“Before we ask must you any questions, you understand your rights. You have the right to remain silent. Any- thing can be you say against used you court. You have the right to talk to a for advice before we ask you any questions, and to have him with you during question- ing. You right have this to the advice and presence of a. We have no lawyer even if you cannot afford to hire one. appointed you lawyer, giving will be but one a wav you go you, you wish, wish you to court. If if and when lawyer present, you without a now questions to answer time. any at answering questions to right stop have the time answering any stop You also have added.) (Emphasis talk to a lawyer.” until you statement read to of the portion The above underlined his inform fully appellant inadequatе have said that is While we there rights. constitutional a version determining whether to be applied one formula defective, the constitutionally warnings is of the Miranda is whether the: forth this Court test set “ give suspect more a likely version is . . offered . and a rights his constitutional understanding of a better his situation.” seriousness оf awareness of the heightened added.) (Emphasis 185, 190, Pa. 266 A.2d Singleton, v.
Commonwealth when best, given appellant warnings At on the They suggest equivocal. this standard are judged by right to the assistance that one’s constitutional one hand is taken to when” the accused “if and triggered counsel one of a hand, state that accused the other court. On during police interrogation. attorney crime has a to an can not be said to be warnings inconsistent internally Such of his understanding a better suspect give “more likely awareness heightened constitutional Singleton, Commonwealth of his seriousness situation.” supra. used in this cаse of the Miranda adequacy
The *4 courts, circuit at least four federal by considered has been of analysis views. A review have in their split which dissenting opinion the is contained in these decisions Court, which portions the Superior in Judge Spaeth follow: flowed, the fatally are for
“In view these my of Appeals reasons well stated the United States ex rel. Williams for the Circuit in United States Seventh which (7th 1972), 1249-50 Cir. 467 F.2d Twomey, substantially warnings. (Footnote involved identical omitted.) the court: Said
Appellant challenges adequacy the of the of his advice to an of the right attorney, light qualifying language, ‘We have way furnishing you with an attorney, wish, but one will be if appointed you, you you go when to court.’ requires warning
Miranda a clear and to unequivocal an accused of his constitutional rights, prior to the statement, taking of whether any exculpatory or incul- patory, during interrogation occurring after an accused is, cоurse, is taken into custody. One of those counsel, the the right presence to hired or appointed, before during any police to questioning. Referring of the necessary warning right appointed to counsel at this crucial stage of the accusatory process, Court said:
‘The warning
right
of a
tо counsel would be hollow if
not couched in terms that would
to
indi-
convey
gent
person
subjected
most often
to interroga-
—the
tion—the
that he too
knowledge
right
has a
have
present.
counsel
As with the warnings of the
right
counsel,
remain silent and
general
right
only
by effective and express
explanatiоn
indigent of
this
can
right
there be assurance that he was
in a
truly
position to exercise
Arizona],
it.’ Miranda
384 U.S.
[v.
at
354 therefore, warning is
unknown, time. The entire future and, worst, consti- confusing at best, misleading and at indigent unsophisticated, to the temptation a tutes subtle critical right to сounsel at this forego to the accused moment. accused, of after interrogation an police
The
practice
provided
be
at
the
that counsel cannot
him
informing
time,
pro-
anticipated
expressly
practice
is a
present
the Miranda decision.
hibited
“
interrogate
person they
a
police propose
.
.
.if
he
lawyer
to him that
is entitled
a
must make known
one,
a
will be
he
and that
cannot afford
If
interrogation.
authori-
any
prior
for him
provided
during
provide
counsel
that
will
they
ties conclude
in the
investigation
which
time in
period
reasonable
out,
doing
refrаin from
so
they may
field
carried
privi-
Fifth Amendment
violating
person’s
the
without
during
him
that
question
as
do not
lege
long
so
Miranda,
436
First, рossess defendants they require in illustrated the Circuit of As Seventh knowledge logic. seem- and ambiguous are Williams, the warnings quoted True, may some defendants inconsistent. internally ingly the through puzzle necessary the possess sophistication Massimo; such defendants but syllogism suggested attention the Court’s object Supremе were not the defend- advising the necessity In explaining Miranda. interrogation, the at an to counsel ants of their Court said: therefore his rights not know
The accused who does person be the may request does not make a counsel] [for theAs California who most needs counsel. has it: aptly
Court the imposition recognize we must ‘Finally, would discriminate request for the requirement the his rights. does not know defendant who against the counsel is the does not ask for The defendant who We cannot most needs counsel. defendant who very his con- who, understanding a defendant penalize request not make the formаl stitutional does rights, To his helplessness. such failure demonstrates by the would be to favor defendant require request fortuitously had or status sophistication whose Dorado, 62 it.’ v. People him to make prompted 177-178, 169, 398 P.2d 338, 351, 42 Cal.Rptr. Cal.2d J.). 361, (1965) (Tobriner, 369-370 470-71, 1602, 436, 86 Arizona, S.Ct. Miranda v. 384 U.S. 16 L.Ed.2d is con- Second, so far as at least Court] [the which variations cerned, by standard prescribed there is a judged; are be tested on the Miranda formulation Our standard, warnings in this case fail. Su- this Singleton, Court stated in Commonwealth preme (1970): Pa. 266 A.2d set failed to though Even Miranda] [in warning, of this a formulation single forth permissible from indicate that deviation however, clearly did of the various formulation prescribed when the offered permissible only be would version understanding suspect a better give likely more awareness heightened his constitutional seriousness of his situation. the pretzel-like maintained that seriously It cannot be ambigu- intertwining, contradictory, warnings here — *7 understanding ‘a better аppellant ous they gave as are — recitation rights’ straightforward than a his constitutional have.2 rights those would 2 height warnings may given appellant ‘a have In one sense the said, situation,’ of his ened awareness of the seriousness you get way you can’t now ‘There is no can effect: decide, one, you one, you are whether still without afford but must However, questions.’ willing threats are cer veiled to answer our tainly not had in mind. what persuaded I not majority, unlike the am
Finally, it, counsel, waived and understood his state- his oral the mere fact that he refused from attorney present. an written form without ment into only requirеd are attorneys tend to think that Laymen Appellant it ‘put writing.’ it time to when comes so; that he signifies and to me this thought apparently oral statements with either that he could make though an getting he attor- or that had means impunity, I suggest such statements. ney’s making advice about his misunderstanding of constitutional that this apparent misleading from likely directly resulted very Scoggins, here issue. Cf. Commonwealth warnings did (1973) (although 451 Pa. was entitled to counsel that defendant clearly say proved Commonwealth held that during questioning, waiver (1) defendant’s testimony (‘[T]hey said I didn’t have to say nothing without my lawyer present.’) (2) clear and adequate warnings given three times in two days before the complained-of warnings).’ Johnson, Commonwealth v. 216-222, 247 Pa.Super. at A.2d at 14-18. agree
We
with the
analysis
reasoning quoted above.
The majority opinion
in the
Court also suggests
that appellant’s
waiver
purported
was effective because
after the policе read their version of the Miranda warnings,
appellant did not show that he misunderstood these warn-
ings.
247 Pa.Super.
14 (1977).
A.2d
This analysis is
misplaced.
only
Not
were the
defective,
Miranda warnings
but once questioning continues without the presence of an
the burden is
attorney,
on the prosecution not the defendant
to demonstrate that “the defendant
knowingly
intelli-
gently waived
privilege against self-incrimination and
[the]
to retained or appointed counsel.”
[the]
Miranda v.
Arizona,
384 U.S. at
S.Ct. at
Because the appellant was not properly advised concern- his ing constitutional rights, appellant’s statements made to the police should have been suppressed.
Appellant raises three other issues which involve the ille- gality search of his porch apartment and the seizure of evidence, physical the excessiveness of the sen- tence of seven and one-half to fifteen years in prisоn, and *8 the ineffectiveness of trial counsel for not raising pre- serving certain issues during and after trial. In view of our disposition case, of this there is no need to consider these issues.
The order of the Superior vacated, Court is judgment of reversed, sentence is and appellant is granted a new trial. LARSEN, J., filed a dissenting opinion.
LARSEN, Justice, dissenting.
I dissent and adopt decision (opinion by
Judge Van Der Voort) in this matter found at 247 Pa.Super.
208,
A Miranda statement in Carolina, 483 F.2d 405, 406-7 v. North Wright sufficient 936, 94 denied 415 U.S. S.Ct. (4th 1973) Cir. certiorari taken A similar has been position L.Ed.2d 494 Circuits, conclusion was contrary the 2nd and 5th but by Circuits, 7th and 9th all reviewed reached in the view, was the statement read Wright. In our adequate. event, by appellant. it was not misunderstood
In any that of the construction capable While the statement his trial until assigned not be appellant would knew he had a that appellant it is demonstrable began, to the statement making any to counsel before his first confrontation upon know this because We police. the Miranda statement he refus- following with the police into written form without comments ed to his verbal he The record also shows that lawyer. of a presence hearing his preliminary counsel аt represented court and, course, ruling The of the trial at the trial. might be admitted police that his verbal statements correct, having proved in evidence was the Commonwealth received his Miranda and there warnings, that appellant misunderstood the he being showing to him. given Pennsylvania
COMMONWEALTH KUEBLER, Appellant. Freda Pennsylvania. Supreme Court Argued Jan. 1979. March 1979.
Decided