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decided: September 29, 1965.


Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1962, No. 297, in case of Commonwealth of Pennsylvania v. Charles Negri.


Leonard L. Ettinger, with him Manfred Landau, for appellant.

Joseph M. Smith, Assistant District Attorney, with him Gordon Gelfond, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen dissents. Concurring Opinion by Mr. Chief Justice Bell. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this opinion.

Author: Eagen

[ 419 Pa. Page 119]

On January 30, 1963, Charles Negri was convicted by a jury of murder in the first degree, and a sentence of life imprisonment was imposed on June 17, 1963. Thereafter, an appeal was filed with this Court, and on March 17, 1964, we affirmed the judgment of sentence, 414 Pa. 21, 198 A.2d 595 (1964). Subsequently, on June 22, 1964, decisions were filed by the Supreme Court of the United States in the cases of Escobedo v. Illinois, 378 U.S. 478 (1964), and Jackson v. Denno, 378 U.S. 368 (1964). In order to consider and evaluate the application of these rulings on the present case, we ordered reargument.

During the trial, a confession, given by Negri to the police following his arrest and while he was without counsel, was admitted in evidence. It was established through the testimony of the police officers who participated in the interrogation that Negri was not warned of his right to remain silent, nor was he advised

[ 419 Pa. Page 120]

    that he could then have the assistance of counsel. It was further established that, during this period, Negri did not request the assistance of counsel.

When the decision in Escobedo was announced and studied, we construed its ruling to be limited to the particular facts of the case, and specifically so stated in Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965), and Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965), among others. As we interpreted the Escobedo opinion, it held that where a person in police custody is not warned of his constitutional right to remain silent during an accusatorial interrogation, it is necessary that he then be given the assistance of counsel to protect that right, if such assistance is requested. To us, the specific ruling of the case was clear, although, admittedly, dicta in the opinion did portend more revolutionary ramifications.

Our interpretation of the meaning of Escobedo was shared by other jurisdictions, both state and federal. See, Sturgis v. Maryland, 235 Md. 343, 201 A.2d 681 (1964); Illinois v. Hartgraves, 31 Ill. 2d 375, 202 N.E. 2d 33 (1964), cert. denied, 380 U.S. 961, 85 S. Ct. 1104 (1965); People v. Donovan, 13 N.Y. 2d 148, 243 N.Y.S. 2d 841, 193 N.E. 2d 628 (1963); State v. Smith, 43 N.J. 67, 202 A.2d 699 (1964), cert. denied, 379 U.S. 1005, 85 S. Ct. 731 (1965); Wansley v. (Commonwealth) Virginia, 205 Va. 412, 137 S.E. 2d 865 (1964), cert. denied, 380 U.S. 922, 85 S. Ct. 920 (1965); McQueen v. Maxwell, 177 Ohio St. 30, 201 N.E. 2d 701 (1964); Browne v. State, 24 Wis. 2d 491, 131 N.W. 2d 169 (1964), cert. denied, 379 U.S. 1004, 85 S. Ct. 730 (1965); United States ex rel. Townsend v. Ogilvie, 334 F. 2d 837 (7th Cir. 1964), cert. denied, 379 U.S. 984, 85 S. Ct. 683 (1965); and, Mitchell v. Stephens, 232 F. Supp. 497 (D.C. E.D. Ark. 1964).

However, other state and federal jurisdictions interpreted Escobedo differently, and reached another result.

[ 419 Pa. Page 121]

These concluded that the assistance of counsel must be afforded the accused (if not intelligently and understandingly waived) at the interrogation level; otherwise, any incriminating statements obtained are constitutionally invalid and inadmissible at trial, even in the absence of a request for such assistance. See, People v. Dorado, 42 Cal. Rptr. 169, 398 P. 2d 361 (1965), cert. denied, 381 U.S. 946, 85 S. Ct. 1793, 33 L.W. 3382 (1965); Oregon v. Neely, 395 P. 2d 557 (Ore. 1964); Commonwealth v. McCarthy, 200 N.E. 2d 264 (Mass. 1964); Campbell v. Tennessee, 384 S.W. 2d 4 (Tenn. 1964); and, United States v. Guerra, 334 F. 2d 138 (2d Cir. 1964), cert. denied, 379 U.S. 936, 85 S. Ct. 337 (1964).

Thus, the law on the point in question is in a state of serious confusion with no apparent hope of enlightment from the Supreme Court of the United States, in view of its action in refusing certiorari in cases reaching conflicting results. Compare People v. Dorado, supra, with Illinois v. Hartgraves, supra, and United States v. Guerra, supra, with United States ex rel. Townsend v. Ogilvie, supra.

Coupled with this inaction, the recent (May 20, 1965) decision of the distinguished United States Court of Appeals for the Third Circuit in the companion cases of United States ex rel. Russo v. New Jersey, and United States ex rel. Bisignano v. New Jersey, 351 F. 2d 429 (3d Cir. 1965), takes on added importance. That court, speaking through Chief Judge Biggs, elected to join the jurisdictions holding that no request by the accused is necessary to impose upon the interrogating police the duty to furnish the assistance of counsel in this situation in the absence of a warning to remain silent or an intelligent and understanding waiver. Obviously, this decision creates a serious problem for this Court, and jeopardizes the finality of our judgments in relevant cases.

[ 419 Pa. Page 122]

While recognizing that in cases involving federal questions the Supreme Court of the United States is the ultimate arbiter, in view of the widespread confusion in this area of the law and the failure of the Supreme Court to clarify it, the decision of the Third Circuit Court of Appeals is on this matter, for all practical purposes, the ultimate forum in Pennsylvania. If the Pennsylvania courts refuse to abide by its conclusions, then the individual to whom we deny relief need only to "walk across the street" to gain a different result. Such an unfortunate situation would cause disrespect for the law. It would also result in adding to the already burdensome problems of the Commonwealth's trial courts, which look to us for guidance. Finality of judgments would become illusory, disposition of litigation prolonged for years, the business of the courts unnecessarily clogged, and justice intolerably delayed and frequently denied.

Consequently, in order to alleviate and correct a regrettable situation, the clear indication for this Court is to accept and follow the decision of the Third Circuit on this matter until some further word is spoken by the Supreme Court of the United States.

Notwithstanding this result, however, the reasoning in two recent decisions of the Supreme Court of the United States,*fn1 denying retrospective effect to the decision in Mapp v. Ohio, 367 U.S. 643 (1961), raises serious questions as to the retrospectivity of the ruling in Escobedo v. Illinois.*fn2

[ 419 Pa. Page 123]

The wide-sweeping effect of the decision in Linkletter, supra, note 1, seems to abandon once and for all the Blackstonian concept that judges do not make, but merely discover, the law, and that overruled decisions were never the law, but merely erroneously declared concepts. And, having hurdled the philosophical obstacle, the Court continues, 381 U.S. at 629, 85 S. Ct. at 1737, 33 L.W. at 4579: ". . . [W]e believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, 'We think the Federal Constitution has no voice upon the subject.'" (Citing Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932), as authority in a footnote). The approach then is to "weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." 381 U.S. at 629, 85 S. Ct. at 1738, 33 L.W. at 4579.

The guarantee against a denial of the right to the assistance of counsel, embodied in the Sixth Amendment, is obligatory upon the states only insofar as the denial violates the protection of the Due Process Clause of the Fourteenth Amendment. Due process of law has always been a term difficult to define with exactitude, and is said to be that process which assures to the accused a fair trial within the "concept of ordered liberty". See, Palko v. Connecticut, 302 U.S. 319 (1937). The right to counsel at pretrial stages inherent in this concept was enunciated in Crooker v. California, 357 U.S. 433 (1958), and Cicenia v. LaGay, 357 U.S. 504 (1958), which denied that there was an absolute right to counsel prior to trial. The test applied was whether the accused suffered any prejudice from the failure to supply counsel at these stages, a

[ 419 Pa. Page 124]

    test to be applied on an ad hoc basis. Then, in Escobedo v. Illinois, the Court found this ad hoc basis to be an unreliable method for the determination of Constitutional rights, and set out, by means of absolute standards, to give complete assurance that an accused would not be overborne. The decision in Escobedo, while not spelling out the Fifth Amendment,*fn3 necessarily wraps the guarantees of the right ...

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