Appeal from order of Superior Court, Oct. T., 1966, Nos. 371 to 375, inclusive, affirming judgments of sentence of Courts of Oyer and Terminer, General Jail Delivery, and Quarter Sessions of the Peace of Philadelphia County, May T., 1965, No. 667, March T., 1965, No. 712, and August T., 1965, Nos. 751, 752 and 754, in case of Commonwealth of Pennsylvania v. Howard Vivian.
Judah I. Labovitz, with him Howard Gittis, for appellant.
Gordon Gelfond, Assistant District Attorney, with him Benjamin H. Levintow and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts.
Howard J. Vivian pleaded nolo contendere in Philadelphia County to four separate bills of indictment (No. 712 March Sessions 1965; Nos. 751, 752 and 754 August Sessions 1965) charging him with assault and battery. Additionally, he was found guilty after a trial before a judge, sitting by agreement without a jury, on charges of aggravated assault and battery, assault and battery, and assault and battery with intent to murder, all of which were included in a bill of indictment designated No. 667 May Sessions 1965.*fn1 After
sentence was imposed in each case, he appealed to the Superior Court which affirmed the judgments. See Commonwealth v. Vivian, 208 Pa. Superior Ct. 330, 222 A.2d 739 (1966). We granted allocatur.
The judgment in this instance will be reversed and a new trial ordered.
During the trial on this indictment testimony of statements made by Vivian to the police during incustody questioning was admitted in evidence against him. It is unnecessary here to again detail the circumstances under which these statements were obtained as such are adequately set forth in the opinions of the courts below. Suffice it to note that admittedly the record does not establish that before or during the questioning involved Vivian was warned of his constitutional right to remain silent. Since this case was tried in August 1965, or subsequent to the decision in Escobedo v. Illinois, 378 U.S. 478 (1964), this in itself rendered the testimony constitutionally inadmissible. See Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967).
None of the attending circumstances, in our view, dispensed with the requirement that the warning of the right to remain silent be given. The facts in the instant case cannot be equated with the situation presented in Commonwealth v. Eperjesi, 423 Pa. 455, 224 A.2d 216 (1966), wherein statements of the accused were truly volunteered. And, a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon a constitutionally tainted admission or ...