449 Pa. 309 | Pa. | 1972
Lead Opinion
Opinion , by
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).
On June 22, 1971, appellant filed a petition pursuant to the Post Conviction Hearing Act.
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-
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
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; Com
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,
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.
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.
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).
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 defi
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.”
Escobedo v. Illinois was decided on June 22, 1964, two months before appellant’s confession on August 28, 1964.
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) .
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).
See note 4, supra.
See footnote 7 and accompanying text.
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 de
Dissenting Opinion
Dissenting Opinion
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.
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, 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
Without indulging in speculation as to why the majority in Smith did not mention either Escobedo or Jefferson, it cannot be controverted that the rule of sub-
The question then becomes one of determining whether the General Assembly has authorized us within the confines of the Post Conviction Hearing Act to correct a decision which was incorrect at the date it was rendered.
Under section 3 of the PCHA, 19 P.S. §1180-3 (Supp. 1972-73), appellant must allege and prove that the constitutional issue he asserts has not been finally litigated or waived. An issue is finally litigated if “The Supreme Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue.” 19 P.S. §1180-4(a) (3). The majority attempts to avoid the force of this language by reference to 19 P.S. §1180-3 (c)(12), which would provide relief on collateral attack for “abridgement ... of ... a right that was not recognized as existing at the time of trial if the constitution requires retrospective application of that right.” We have always in the past interpreted this language and the “finally litigated or waived” provisions as permitting a PCHA petitioner to take advantage of constitutional rights subsequently announced and held to be retroactively applicable. Commonwealth v. Cheeks, 429 Pa. 89, 239 A. 2d 793 (1968); Common
This case, however, presents quite a different question altogether. At issue is not the discovery subsequent to Smith’s direct appeal to this Court of a then unknown constitutional right, as was the case in Cheeks and Richardson, supra. To the contrary, the right in issue was announced in 1964 and interpreted as Smith would now have us interpret it in January, 1967, prior to the decision on his direct appeal. The “finally litigated” question must therefore be addressed without reference to 19 P.S. §1180-3(c) (12)—rights not in existence on the date of prior litigation—and without reference to our case law interpreting that provision.
The General Assembly has commanded us not to entertain issues under the PCHA which we have previously decided on the merits unless the law has subsequently changed and must be retroactively applied, an exception not relevant in this case. I cannot believe that the legislature intended the phrase “ruled on the merits of the issue” to be interpreted “ruled on the merits of the issue correctly in light of the then existing law.” All litigation must at some point reach an end, even in this area of collateral attack on criminal convictions in which finality is often difficult to achieve. That point must be reached, in the absence of the subsequent pronouncement of a new constitutional principle, when this Court has considered the issue on the merits in the light of principles that have not since changed and has been ruled, correctly or incorrectly. We are not authorized by the legislature to utilize the PCHA petition as a means of correcting decisions because now believed to have been erroneous at the time they were announced.
It would thus appear that the majority today grants a new trial on facts which would not prove the violation of any federally guaranteed rights and in disregard of a legislatively imposed limitation which, given the reading that we have on prior occasions afforded, would prevent our even reaching the merits of this already litigated issue. I would affirm the order of the Court below dismissing the petition for post-conviction relief.
See Commonwealth v. Campbell, 442 Pa. 313, 316, 275 A. 2d 64 (1971) : “Since this trial commenced subsequent to June 22, 1964 and prior to June 13, 1986, the controlling rules are those set forth in Escobedo v. Illinois, supra, rather than Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). See Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966) ; Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761 (1966) ; Commonwealth v. Banks, 429 Pa. 53, 239 A. 2d 416 (1988) ; Commonwealth v. Vivian, 426 Pa. 192 231 A. 2d 301 (1967) ; Commonwealth v. Jefferson, 423 Pa. 541, 226 A. 2d 765 (1987).”
The majority opinion in Smith was written by Mr. Justice Mtjshanno, and joined by Chief Justice Bell and Justice O’Brien. Justice Cohen concurred in the result.
We may, nonetheless, have power to correct the earlier decision in direct appeal by considering appellant’s petition as one for a writ of coram nobis. See Commonwealth v. Sheehan, 446 Pa. 35, 285 A. 2d 465 (1971), where we held that a petitioner unable to utilize the PCHA because not a person incarcerated, on parole, or on probation could avail himself of a writ of coram nobis. Assuming the existence of such a power in this case, I am of the opinion that the Court should not exercise it for reasons which follow in the text after this note.
The reason for the position of the Third Circnit on this issue is that the contrary interpretation of Escobedo, represented by Pennsylvania decisions starting with Commonwealth v. Jefferson, are at variance with the prevailing view. Compare Commonwealth v. Jefferson, supra, with United States v. Feinberg, 383 F. 2d 60 (2d Cir. 1967) (Friendly, J.), cert. denied, 389 U.S. 1044, 19 L. Ed. 2d 836 (1968). The Jefferson line of cases is out of line as well with what we had once definitively announced as the interpretation of Escobedo in Pennsylvania following the United States Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966) and Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882 (1966). Compare Commonwealth v. Jefferson, supra, with Commonwealth v. Schmidt, 423 Pa. 432, 224 A. 2d 625 (1966).