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decided: December 20, 1971.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1963, Nos. 328, 343, 345 and 349, in case of Commonwealth of Pennsylvania v. Paul D. Ware.


J. Charles Short, for appellant.

Arlen Specter, District Attorney, with him James T. Ranney and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, and Richard A. Sprague, First Assistant District Attorney, for Commonwealth, appellee.

H. Robert Fiebach, for amicus curiae.

Jones, Eagen, O'Brien, Roberts, and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones concurs in the result. Mr. Justice O'Brien joined in the opinion of the Court and filed a concurring opinion. Mr. Chief Justice Bell and Mr. Justice Pomeroy took no part in the consideration or decision of this case.

Author: Roberts

[ 446 Pa. Page 53]

The Commonwealth in this appeal calls upon this Court to hold the federal constitutional standards of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), inapplicable to a 1963 confession sought to be introduced in a post- Miranda trial. This contention must be rejected. It ignores the controlling and unambiguous pronouncements of the United States Supreme Court concerning the extent of Miranda's retroactivity. These pronouncements have been scrupulously followed not only by an unbroken line of decisions of this Court*fn1 but also by virtually every other court in the nation which has dealt with the issue.*fn2

The procedural history of the present appeal is as follows: On October 3, 1963, appellant Paul Ware confessed to the commission of four murders. The statements were elicited from him in the course of custodial interrogation and were not preceded by the warnings of constitutional rights mandated by Miranda. A murder indictment was returned against appellant in December of 1963, but further prosecution was postponed as a result of his commitment to Farview State Hospital pursuant to a court order declaring him to be mentally incompetent to stand trial.

In July of 1967, appellant was found to have regained his competency, and his case was listed for trial. However, on May 23, 1968, the Philadelphia Court of

[ 446 Pa. Page 54]

Common Pleas ordered the 1963 confessions suppressed for the reason that they had been obtained in circumstances violative of Miranda. In light of the suppression order and the absence of other independent evidence of appellant's guilt, the Commonwealth petitioned for the entry of a nolle prosequi. Appellant offered no objection, and the court approved the nolle prosequi.

On August 11, 1969, more than one year after the original suppression order and nine months after the entry of the nolle prosequi, the Commonwealth changed its position and moved for removal of the nolle prosequi. The motion was granted over appellant's objection, and the Commonwealth then petitioned the court to vacate its prior suppression order and allow a rehearing of the matter. This request was likewise granted over objection, and a suppression hearing was held on June 25 and June 26, 1970. On November 13, 1970, the court of common pleas held that the confessions were admissible in evidence notwithstanding the conceded absence of Miranda warnings. This appeal followed.*fn3

The Commonwealth argues in defense of the trial court's suppression order that the standards of Miranda should not apply to a confession obtained prior to the

[ 446 Pa. Page 55]

    date of that decision. We need not, however, respond to the Commonwealth's view as to what "should be": to put it quite simply, the matter is no longer an open question.

In Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966), the United States Supreme Court was squarely confronted with the question whether and to what extent Miranda should be accorded retroactive application. After carefully analyzing the material considerations,*fn4 the Court concluded: "We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago." Id. at 721, 86 S. Ct. at 1775.

We cannot imagine how the Supreme Court could possibly have spoken more definitely. That Court made it clear that the date of trial is the operative event, and that therefore the Miranda standards must be applied to all post- Miranda trials, including those cases such as the present one involving pre- Miranda confessions. This Court has not only faithfully honored the United States Supreme Court's clear directive, see Commonwealth v. Davis, 440 Pa. 123, 270 A.2d 199 (1970); Commonwealth v. Singleton, 439 Pa. 185, 266 A.2d 753 (1970); Commonwealth v. Bennett, 439 Pa. 34, 264 A.2d 706 (1970); Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1970); Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464 (1969), cert. denied, 397 U.S. 925, 90 S. Ct. 918 (1970); Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968); Commonwealth v. Leaming, 432 Pa. 326, 247 A.2d 590 (1968); Commonwealth v. Robinson, 428 Pa. 458, 239 A.2d 308 (1968);

[ 446 Pa. Page 56]

    in this regard should have been forever put to rest by the Supreme Court's subsequent decision in Jenkins v. Delaware, 395 U.S. 213, 89 S. Ct. 1677 (1969), which further clarified and explicitly reaffirmed the principles of Johnson : "[W]e could have . . . made the point of initial reliance, the moment the defendant is interrogated, the operative event. But in an effort to extend the protection of Miranda to as many defendants as was consistent with society's legitimate concern that convictions already validly obtained not be needlessly aborted, we selected the commencement of the trial." Id. at 219, 89 S. Ct. at 1680-81.

Finally, we must reject the Commonwealth's claim that Johnson has been overruled sub silentio by the Supreme Court's more recent retroactivity cases fixing the date of the alleged constitutional violation rather than the date of trial as the operative cut-off date.*fn7

[ 446 Pa. Page 58]

There are, of course, "occasional situations in which subsequent Supreme Court opinions have so eroded an older case, without explicitly overruling it, as to warrant a subordinate court in pursuing what it conceives to be a clearly defined new lead from the Supreme Court to a conclusion inconsistent with an older Supreme Court case." Rowe v. Peyton, 383 F. 2d 709, 714 (4th Cir. 1967). But this is certainly not such a situation. Johnson's trial date rule has been reaffirmed by the Supreme Court as recently as April 5, 1971. See Mackey v. United States, 401 U.S. 667, 714, 91 S. Ct. 1160, 1164 (1971); Williams v. United States, 401 U.S. 646, 665 n. 7, 91 S. Ct. 1148, 1153 n. 7 (1971). Therefore, we are without constitutional authority to adopt a test for the retroactivity of Miranda which is inconsistent with Johnson. Additionally, we are in agreement with the rationale of Johnson, and we affirm it as a matter of state law. Cf. Commonwealth v. Blackman, 446 Pa. 61, 285 A.2d 521 (1971).

The order of the Philadelphia Court of Common Pleas is reversed.


Order reversed.*fn*

Concurring Opinion by Mr. Justice O'Brien:

I concur in the opinion of the majority and join in that opinion. In addition, however, I believe that the Commonwealth has followed a procedure in this matter which precludes any result other than the one arrived at by the majority.

As indicated in the majority opinion, the Philadelphia Court of Common Pleas entered its suppression

[ 446 Pa. Page 59]

    order on May 23, 1968. Since the Commonwealth had no other independent evidence of appellant's guilt, the effect of the suppression order was to put the Commonwealth out of court and the order was, therefore, as indicated by many, many cases, appealable. If the district attorney was unhappy with the suppression order, the proper course of action for him was to appeal that order within the time allowed for such appeals. He did not do so. Instead, nearly fifteen months later, he chose to request a rehearing of the suppression order in the trial court. I do not believe that we can countenance such procedures, and in my view the district attorney's failure to appeal the suppression order within the statutory time period precludes any further consideration of that order.

Disposition FOOTNOTES

* : On March 20, 1972, the Supreme Court of the United States entered an order granting a petition for a writ of certiorari to the Supreme Court of Pennsylvania. On April 24, 1972, the Supreme Court of the United States entered an order vacating its prior order, insofar as it granted the petition for a writ of certiorari, and denied the petition for a writ of certiorari, "it appearing that the judgment below rests upon an adequate state ground."

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