No. 477 January Term, 1977, Appeal from Order of Superior Court at No. 385 October Term, 1976 remanding with instructions to the Court of Common Pleas - Criminal - County of Northampton, No. 447 October Term, 1974
Harris S. Pasline, Asst. Public Defender, Easton, for appellant.
Allan B. Goodman, Asst. Dist. Atty., Easton, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Larsen, J., filed a dissenting opinion.
On May 2, 1975, appellant, Robert Johnson, was convicted by a jury of robbery, criminal conspiracy, possession of a prohibited offense weapon, and recklessly endangering another person. Prior to trial, suppression motions were denied. Post-verdict motions were also denied, and appellant was sentenced from seven and one-half to fifteen years in prison. In an appeal to the Superior Court, appellant raised various issues which were decided adversely to him. As to
one issue involving the effectiveness of counsel, the Superior Court remanded the matter to the trial court for an evidentiary hearing. Commonwealth v. Johnson, 247 Pa. Super. 208, 372 A.2d 11 (1977). An evidentiary hearing has since been held and the transcript forwarded to this Court. Appellant filed a petition for allowance of appeal which this Court granted.
Appellant contends that all statements which he gave to the police should have been suppressed because he was not properly advised of his constitutional rights. We agree and therefore reverse the judgment of sentence and grant appellant a new trial.
When the prosecution contends that an accused has waived a constitutional right, the prosecution has a heavy burden of proving that an accused has exercised a knowing and intelligent waiver of that right. Commonwealth v. Romberger, 464 Pa. 488, 347 A.2d 460 (1975), Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975), Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). After reviewing the record, we conclude that appellant did not knowingly and intelligently waive his constitutional rights.
Appellant and his co-defendant were arrested for the robbery of a restaurant. They were taken to police headquarters where they were read a version of their Miranda rights and then given a written copy of that statement to read. Appellant later signed the same version of his Miranda rights. Subsequently, appellant gave oral statements to the police. He refused to make any written statements without an attorney present.
Appellant was informed of his Miranda rights by the following statements:
"Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no Page 352} way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer." (Emphasis added.)
The above underlined portion of the statement read to appellant was inadequate to fully inform appellant of his constitutional rights. While we have said that there is no one formula to be applied in determining whether a version of the Miranda warnings is ...