Appeal from order of Court of Common Pleas of York County, Oct. T., 1964, No. 45, in case of Commonwealth of Pennsylvania v. William Smith, Jr.
Hugh S. Rebert, Assistant Public Defender, for appellant.
Samuel K. Gates, Assistant District Attorney, with him Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.
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).*fn1
On June 22, 1971, appellant filed a petition pursuant to the Post Conviction Hearing Act.*fn2 In that petition, which was dismissed without a hearing, appellant alleged that his confession, obtained on August 28, 1964, and introduced at trial, was secured in a manner violative of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964). We agree with appellant and accordingly reverse the judgment of sentence and remand for a new trial.*fn3
The Commonwealth does not dispute the fact that during the police custodial interrogation prior to his confession appellant was not told explicitly of his right to remain silent.*fn4 We have held on numerous occasions that such a warning is required after the decisional date of Escobedo v. Illinois, supra.*fn5 Commonwealth v. Campbell, 442 Pa. 313, 275 A.2d 64 (1971); Commonwealth v. Banks, 429 Pa. 53, 239 A.2d 416 (1968); Commonwealth v. Walker, 428 Pa. 244, 236 A.2d 765 (1968); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); Commonwealth v. Medina, 424 Pa. 632, 227 A.2d 842 (1967); Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967); Commonwealth v. Hardy, 423 Pa. 208, 223 A.2d 719 (1966). Rather the Commonwealth contends that the issue is foreclosed to appellant because of this Court's earlier decision in Commonwealth v. Smith, supra. We cannot agree.
Although this Court had several early opportunities to consider the Sixth Amendment foundations of Escobedo v. Illinois,*fn6 the first opinion of this Court to fully consider the Fifth Amendment requirements of Escobedo v. Illinois was Commonwealth v. Hardy, 423 Pa. 208, 223 A.2d 719 (1966). In Commonwealth v. Hardy, supra, Chief Justice, then Justice Jones, speaking for a unanimous Court, held that a confession is violative of Escobedo v. Illinois where the defendant "is not effectively warned of his constitutional right to remain silent." Id. at 214, 223 A.2d at 722.
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 ...