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COMMONWEALTH v. FREEMAN (03/20/70)

decided: March 20, 1970.

COMMONWEALTH
v.
FREEMAN, APPELLANT



Appeal from order of Court of Oyer and Terminer and General Jail Delivery of Monroe County, May T., 1965, No. 1, in case of Commonwealth v. Donald Richard Freeman.

COUNSEL

J. Joseph McCluskey, for appellant.

Phillip H. Williams, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones concurs in the result. Mr. Justice Cohen, Mr. Justice Eagen and Mr. Justice Pomeroy join in this opinion. Concurring Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy joins in this concurring opinion. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen joins in this concurring opinion. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.

Author: Bell

[ 438 Pa. Page 3]

On May 15, 1965, Donald Freeman (appellant), while represented by two Court-appointed counsel, was convicted by a jury of murder in the second degree. No post-trial motions were filed. On June 7, 1965, he was sentenced to imprisonment for not less than ten nor more than twenty years. Subsequently, Freeman filed a petition under the Post Conviction Hearing Act. He alleged that he was denied his right to counsel on appeal, as required by Douglas v. California, 372 U.S. 353, and that he did not knowingly and intelligently waive that right. It is by now well established that a person convicted of crime is entitled to appeal and to be represented in his appeal by an attorney, and, if indigent, by a Court-appointed free attorney. These rights can be waived only by a knowledge of and a voluntary waiver of his rights. Defendant also contends that two confessions

[ 438 Pa. Page 4]

    which were used against him at trial were taken from him in violation of his Constitutional rights. From the Order of the lower Court which denied his petition, defendant took this appeal.

I. Waiver of Douglas Rights

The record shows, we repeat, that Freeman was represented at trial by two experienced Court-appointed attorneys. Within a few days after his conviction, both of them met with him at the jail. Both counsel testified at the post-conviction hearing that at their meeting with Freeman, he was informed of his right to move for a new trial and, if his motion was denied, to appeal to the Supreme Court of Pennsylvania.

Arlington Williams, one of appellant's counsel, testified that his co-counsel, James C. Scanlon, "explained to him [Freeman] these rights and then told him that whether he wanted us to file this motion for a new trial and a subsequent appeal,*fn* if a new trial was denied, was a matter for his decision." According to the testimony of Scanlon, Freeman then said that he "did not want to appeal." Scanlon further testified that Freeman later reiterated this decision, saying, in addition, that he wanted "to go ahead and serve his sentence and get it over with." Freeman asserts that he was never expressly told that he had the right to Court-appointed counsel on appeal if he could not afford private counsel. However, where the facts or circumstances show that a defendant is aware of his rights, a defendant can intelligently and knowingly waive his right to appeal. Commonwealth ex rel. Newsome v. Myers, 428 Pa. 141, 236 A.2d 763; Commonwealth ex rel. Edowski v. Maroney, 423 Pa. 229, 235, 236, 223 A.2d 749.

[ 438 Pa. Page 5]

In those cases, this Court found, in similar circumstances, that an accused was aware of his Douglas rights and had made a knowing and voluntary waiver of them. In each of those cases, the defendant had Court-appointed counsel at trial who was prepared to continue to represent him in further proceedings if he so wished. In each of those cases, a review of the complete record shows that the defendant was never expressly told that he had the right to free Court-appointed counsel on appeal. Nevertheless, this Court held in both of said cases that the record showed that the defendant was fully aware of his Douglas rights and voluntarily relinquished them.

We find that this defendant (Donald Freeman) understood his right to have his free Court-appointed counsel represent him in a motion for a new trial, as well as in an appeal, and that he knowingly, voluntarily and intelligently waived or relinquished these rights.

An accused can waive these rights if that waiver constitutes an "intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938); see also, Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760. However, if the record is silent, the burden of proving such a waiver is upon the Commonwealth. Commonwealth v. Ezell, 431 Pa. 101, 103, 244 A.2d 646; Commonwealth v. Wilson, 430 Pa., supra (page 3).

Testimony at the Post Conviction Hearing Act hearing shows, we repeat, that defendant had been represented at trial by two experienced, free counsel, and that after his trial and conviction, these attorneys "explained to him these rights and then told him that whether he wanted us to file this motion for a new trial and a subsequent appeal, if a new trial was denied, was a matter for his decision." Moreover, defendant testified at the post-conviction hearing that he knew his lawyers' services were provided "for nothing" and that

[ 438 Pa. Page 6]

"the Commonwealth paid for it." There is no evidence in this record, or even a reasonable inference, that defendant believed, or had any reason to believe, that his attorneys' services on appeal would not be free.

No matter how guilty a defendant is, no matter how often he has voluntarily confessed his guilt, the Minority would require actual awareness or knowledge of his rights to be determined solely by "parroted words," when all the facts and circumstances, and defendant's own words show his awareness and knowledge of his right to appeal and to have his free, Court-appointed counsel represent him on appeal. Even a Procrustean stretch of the Constitution or of prior decisions of the Supreme Court of the United States cannot support such a highly technical and far-fetched position. It is clear that defendant knew of his right to free Court-appointed counsel to represent him in post-trial motions and in an appeal, and that he voluntarily, understandingly and intelligently waived this right.

II. Confessions

Appellant by his counsel contended at his Post Conviction Hearing Act hearing that his Constitutional rights were violated when two statements or confessions made by him were introduced over objection at his trial. His first statement was made to the police in a telephone conversation shortly after the police were informed of the killing of the victim; the second was made to the police after Freeman had been arrested and taken to State Police Headquarters for questioning.

The police were first alerted to the shooting of the victim, Claude Ludwig, when State Police Corporal Weber received a telephone call from a man named Bush. Bush told Weber that a man came into his gas station and said that he had killed a man. Weber immediately

[ 438 Pa. Page 7]

    sent two police officers to the scene and then called Bush to ask him if he knew the name of the killer. Bush replied that he did not know the man's name but that the man was still there. Bush asked this man -- the defendant, Freeman -- to talk to Weber on the phone, which he did. Corporal Weber testified: "Q. And did the person on the other end of the phone identify himself? A. He did. Q. And who did he say he was? A. Donald Freeman. Q. . . . [W]ould you tell us the conversation that you had with this man who purported to be Donald Freeman? A. I asked him what happened, and he said he had shot Claude Ludwig. I asked him if he was dead, and he said he didn't know, but if they got an ambulance they may be able to save him, and then he hung up."

Freeman contends that these statements could not properly be admitted in evidence because he had not been warned of his Constitutional rights before speaking to Corporal Weber on the telephone. Neither Escobedo v. Illinois, 378 U.S. 478, nor Miranda v. Arizona, 384 U.S. 436 (even if it were applicable, which it is not), nor any other case, requires that a statement or confession, voluntarily made in these circumstances, be suppressed or excluded. Unlike Escobedo, the police investigation was at that time "a general investigation of 'an unsolved crime.'" Escobedo v. ...


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