# Commonwealth v. Rigler

> Supreme Court of Pennsylvania · March 20, 1980 · 488 Pa. 441

URL: https://www.frixlaw.com/law-library/cases/9704703

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Robert RIGLER, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 20, 1980
- **Citations:** 488 Pa. 441; 412 A.2d 846; 1980 Pa. LEXIS 520
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Eagen, O'Brien, Roberts, Nix, Larsen, Flaherty
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*456 ROBERTS, Justice,
dissenting.
I dissent. Careful review of the record convinces me that appellant’s confession was obtained in violation of his right to counsel. Accordingly, the confession should not have been admitted at appellant’s trial. I would vacate the judgment of sentence and remand for a new trial.
The record shows that appellant was arrested early in the morning of May 10, 1975 and taken to the police administration building. Appellant was initially advised of his right to remain silent as required by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and after making certain statements, refused to talk further. Later, after several hours in police custody, appellant consulted with an attorney retained by his family. The uncontradicted record discloses that the attorney advised appellant not to speak further to the police, and that the attorney advised the police that he had so instructed appellant. Nevertheless, some twenty minutes thereafter the police obtained appellant’s confession, albeit after a recitation of the Miranda warnings, but, crucially, without notifying counsel. This was improper. Once an accused has retained counsel and once counsel has indicated to the police that he has advised his client to remain silent, the police should not be permitted to proceed to question the accused outside of counsel’s presence. Commonwealth v. Hilliard, 471 Pa. 318 , 370 A.2d 322 (1977); Commonwealth v. Hawkins, 448 Pa. 206, 220 , 292 A.2d 302, 309 (1972) (Nix, J., joined by Roberts and Manderino, JJ., dissenting); see Commonwealth v. Lark, 482 Pa. 292, 294 , 393 A.2d 1112, 1113 (1978) (Opinion in Support of Reversal Part I by Roberts, J., joined by Manderino, J.); id., 482 Pa. at 299 , 393 A.2d at 1115 (Opinion in Support of , Reversal by Nix, J., joined by Manderino, J.).
This view is consistent with the principles recently endorsed by a plurality of this Court in Commonwealth v. Hilliard, supra. In Hilliard , as here, police obtained a confession from an accused without the presence of counsel at a time when counsel had already been retained. Because of that circumstance, the confession was held inadmissible and *457 judgment of sentence was reversed. In holding the confession inadmissible Hilliard noted with approval the rule adopted by the New York Court of Appeals in People v. Hobson, 39 N.Y.2d 479 , 384 N.Y.S.2d 419 , 348 N.E.2d 894 (1976). That rule, simply put, is that “once counsel has undertaken to represent a defendant, the defendant cannot waive his right to counsel in custody unless counsel is present.” Hilliard, supra, 471 Pa. at 322 , 370 A.2d at 324 . Hilliard quoted Chief Judge Breitel’s observation in Hobson that:
“The rule that once a lawyer has entered the proceedings in connection with the charges under investigation, a person in custody may validly waive the assistance of counsel only in the presence of a lawyer breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary. Indeed, it may be said that a right too easily waived is no right at all.”
Id. at 484 , 384 N.Y.S.2d at 422 , 348 N.E.2d at 898 (1976) (citations omitted). I remain convinced that this rule is the appropriate one.
Of course, as a result of consultation with counsel an accused may decide to waive his right against self-incrimination. Nothing would prohibit that possibility. But I see no justification for allowing a counselled accused to waive this right in counsel’s absence. The benefits of prohibiting such a practice have already been clearly explained by Mr. Justice NIX:
“If, in fact, there [is] a voluntary and considered judgment by the suspect to unburden his soul by discussing the incident with police officials there is no reason to believe consultation with counsel would stifle that desire. On the other hand, counsel’s presence would restrain the suspect who was motivated by fear, intimidation, ignorance, or unreasoned impulse, which is the objective Miranda has mandated us to seek. The very presence of counsel during custodial interrogation is a bulwark against the compulsion of the surroundings and provides a credible witness *458 for the defense if there is a subsequent issue as to the circumstances surrounding the questioning.”
Commonwealth v. Hawkins, supra, 448 Pa. at 222-23 , 292 A.2d at 310 (Nix, J., joined by Roberts and Manderino, JJ., dissenting).
There may also be circumstances where an accused, although represented by counsel, spontaneously volunteers statements to the police. And, as our prior cases have held, such statements should not be excluded. Commonwealth v. Myers, 481 Pa. 217 , 392 A.2d 685 (1978). This case, however, clearly does not involve a spontaneous confession. Nor does the record demonstrate any other exigent circumstances which might excuse the failure to allow counsel to participate in the accused’s decision to speak.
The majority would distinguish this case from Hilliard because counsel in this case did not specifically request to be present during any further interrogation. Certainly this confession could not stand if counsel had made such a request and the police had nevertheless failed to honor it. See Commonwealth v. Lark, supra. Still, counsel’s failure specifically to request to be present during any later interrogation is no reason to afford the appellant’s right to counsel’s presence any less protection. And in this case counsel clearly expressed to the police his instructions to appellant that the latter not make any statement. Particularly in such a circumstance I would not permit the police then to obtain a statement from appellant outside of counsel’s presence.
Finally, I must note that if Hilliard is as inapposite as the majority believes, it is indeed remarkable to what length the majority goes to discredit it. Majority Opinion, ante at n.3. If the question presented in Hilliard is not presented here I would not indulge in such inappropriate dicta.
There can be no doubt of the ugliness of the incidents that gave rise to this prosecution. But we must keep in mind the recent warning of Mr. Justice Stevens:
“Nothing that we write, no matter how forcefully expressed, can bring back the victim[s] of this tragedy . *459 The emotional aspects of the case make it difficult to decide dispassionately, but do not qualify our obligation to apply the law with an eye to the future as well as with concern for the result in the particular case before us.”
Brewer v. Williams, 430 U.S. 387, 415 , 97 S.Ct. 1232, 1247 , 51 L.Ed.2d 424 (1977) (concurring opinion). I would vacate the judgment of sentence and remand for a new trial.
NIX, J., joins this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704703. Public record. Not legal advice.