Appeal from judgment of Court of Oyer and Terminer of York County, Oct. T., 1964, No. 45, in case of Commonwealth of Pennsylvania v. William Smith, Jr.
Harry C. Elsesser, Jr., with him Thomas H. Reed, for appellant.
Nevin J. Trout, Assistant District Attorney, with him John F. Rauhauser, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen concurs in the result. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Jones and Mr. Justice Roberts join in this dissenting opinion.
At about 4 a.m. on August 28, 1964 Mary Louise Green was found in a horribly mutilated and dying condition in a vacant lot in the City of York. She was taken to the York Hospital and died the following day. About 6 a.m., on the same morning of August 28th, Wm. M. Smith, Jr., the defendant in this case, was taken by police of York to the York City Detective Bureau. About 8:30 a.m. he was questioned by Detective Inspector Landis who reduced the questions and answers to writing. About 10:30 a.m. the defendant signed the statement embodying the interrogation. The statement began: "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.
"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."
The admissions which appeared in the statement regarding the defendant's association with Mary Louise Green, together with other evidence produced at the trial, resulted in Smith's being convicted of second degree murder and his being sentenced to imprisonment for a term of not less than 10 years nor more than 20 years.
The defendant has appealed, alleging trial errors. He states that his statement should not have been admitted in evidence because it was obtained in violation of his constitutional rights, citing Miranda v. Arizona, 384 U.S. 436. The Supreme Court of the United States declared in Johnson v. New Jersey, 384 U.S. 719, that the Miranda decision was not retroactive. Since Miranda was decided June 13, 1966, and the trial occurred in August, 1965, obviously the statement does not come within the chronological limitation of Miranda.
Moreover, after police inform a person in their custody that he is entitled to an attorney and that he is not required to speak in the absence of an attorney, and the potential interrogatee understandingly waives the right to have an attorney present, the police are not compelled to demand that an attorney appear, nor refuse to listen to what the person voluntarily relates. Of course, if it appears that ...