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COMMONWEALTH v. DIXON (11/12/68)

decided: November 12, 1968.

COMMONWEALTH
v.
DIXON, APPELLANT. COMMONWEALTH V. KONTOS, APPELLANT



Appeals from judgments of Court of Oyer and Terminer of Allegheny County, May T., 1966, No. 15, in case of Commonwealth v. Mary Dixon, and Same v. Nick Kontos.

COUNSEL

Carl Blanchfield, for appellant.

L. J. Gripps, with him Louis C. Glasso, for appellant.

Charles B. Watkins, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen dissents in No. 99. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Roberts

[ 432 Pa. Page 424]

Appellants were tried separately and convicted of murdering Hazel Deere, a seventy-two year old spinster, in the course of executing a robbery in the deceased's apartment. Both appellants were found guilty of murder in the first degree, and both were sentenced to life imprisonment.

Although the facts of these cases are complicated, and although appellants raise numerous points in their quest for reversals, we can confine our discussion to the problem of whether the Commonwealth fulfilled its burden of proving that appellants knowingly and intelligently waived the assistance of counsel before making statements which subsequently were introduced at their trials. Both cases pose the issue in a similar manner.

In No. 83, Commonwealth v. Dixon, the district attorney testified at the Suppression Hearing as follows: "Q. Did you give her any other advice at the time? A. Yes, I told her that she didn't have to give us a statement. If she did anything she said would be used against her. I asked her if she wanted a Lawyer and she said no, she wanted to tell us her story first. . . ." Record of Suppression Hearing, p. 478. The district attorney answered affirmatively when asked if he had "warned her of her constitutional rights," and reiterated that when he asked "if she wanted a Lawyer she

[ 432 Pa. Page 425]

    said, 'I am going to tell the whole story.'" Record of Suppression Hearing, pp. 543-44.

In No. 99, Commonwealth v. Kontos, appellant initially was questioned by police officers, one of whom advised him "if he wanted to call a lawyer that he had that right, or he could remain silent." Record of Suppression Hearing, p. 69. After about an hour of questioning, a new officer took over, warning appellant that he could refuse to answer questions or could "call counsel." The second officer expressly testified that he did not tell appellant of his right to have free counsel appointed. Record of Suppression Hearing, p. 454. Several hours later, the district attorney instructed appellant "that he had a right to counsel. . . . that we would secure counsel for him if he chose for us to do so." Record of Suppression Hearing, p. 478.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), which applies to this case under Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966), requires the Commonwealth to sustain the burden of proving that appellants made a knowing and intelligent waiver of the assistance of counsel before making their statements to the police and district attorney. We recently emphasized in Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968), "that as a matter of law there cannot be a finding of a knowing and intelligent waiver of the right to counsel unless the accused shall have been explicitly informed that he is entitled to free counsel if he is indigent." (Emphasis in original.) Cf. Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968); Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968); Commonwealth v. Wilson, 430 Pa. 1, 241 ...


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