Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1970, Nos. 736 and 737, in case of Commonwealth of Pennsylvania v. Frank Hawkins.
James B. Crummett, with him Oscar N. Gaskins, for appellant.
Carolyn E. Temin, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Nix. Mr. Justice Roberts and Mr. Justice Manderino join in this dissent.
Frank Hawkins was convicted by a jury of voluntary manslaughter.*fn1 From the judgment of sentence, this appeal was filed. We affirm.
The principal claim of error is the trial court's denial of a pretrial motion to suppress a statement given by Hawkins to the police and in permitting evidence of this statement to be used at trial. The record discloses the following pertinent facts.
About 10:15 p.m., on May 22, 1970, Moses Howell was shot in a North Philadelphia bar and died sixteen days later. Death was due to a wound caused by a bullet which entered the abdomen about four inches to the right of the navel and then pierced vital internal organs.
On June 24, 1970, the appellant, Hawkins, accompanied by his attorney, Oscar Gaskins, surrendered himself to the District Attorney's office. He was subsequently taken to the Police Administration Building at Eighth and Race Streets in Philadelphia, where he
was questioned by a city police detective, White, about the Moses Howell shooting without Gaskins being present. Hawkins orally admitted to White that he fired the shot which caused Howell's death, but said he had acted in self-defense. His admission and version of the occurrence were then recorded on a typewriter by White and the finalized statement was read and signed by Hawkins. The entire interrogation process lasted three and one-half hours.
Contending it was constitutionally impermissible for the police to question Hawkins in the absence of his known counsel, a pretrial motion to suppress Hawkins' statement was filed. After an evidentiary hearing, the motion was denied.
At the suppression hearing, Attorney Gaskins testified that upon being retained and informed by Hawkins that the police were looking for him, he surrendered him to a Detective Hahn of the District Attorney's office about 1 p.m., on June 24th; that Hahn told Gaskins Hawkins would be "transported" to the Homicide Division Headquarters of the City Police Department at Eighth and Race Streets for processing (fingerprinting, etc.) and "we will not ask him any questions";*fn2 that Gaskins then advised Hawkins he would be available if needed and left; that about 9:30 p.m., Gaskins received a phone call from a friend or relative of Hawkins saying the latter was being "interrogated" by the police; that he immediately phoned Detective White at police headquarters and informed him he represented Hawkins and his client was not to be questioned; that White said Hawkins had already given a statement and that White had made "attempts" to contact Gaskins by phone without success.
Detective White testified that Hawkins arrived at the City Police Administration Building in a police patrol vehicle about 2:50 p.m., on June 24th; that he was advised of his constitutional rights, as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), at 4 p.m., before any questioning occurred; that these warnings included Hawkins' right to have a lawyer present during any police questioning; that Hawkins said he understood and in answer to the question: "Do you want to either talk with a lawyer at this time or have a lawyer with you while we ask you question?," Hawkins replied, "No"; that immediately thereafter Hawkins admitted shooting Moses Howell, but claimed he had acted in self-defense; that subsequently Hawkins repeated the statement which White recorded on a typewriter and when the statement was finalized about 7:05 p.m., it was read and signed by Hawkins. On cross-examination White admitted that "toward the beginning of the interview" Hawkins advised him that he was represented by Attorney Gaskins. He also stated that about 10 p.m. (after Hawkins' statement was completed, recorded and signed), Hawkins for the first time indicated he wanted to phone his attorney and that in response to this request, White placed a phone call for Attorney Gaskins at 10:03 p.m., and that White did not recall speaking with Attorney Gaskins at any other time that evening.
Hawkins did not testify at the suppression hearing so that White's testimony to the effect that Hawkins was warned of his right to have a lawyer present during the questioning and also that Hawkins said he did not desire a lawyer at that time remained undisputed when the suppression hearing judge ruled Hawkins' incustody statement was admissible as trial evidence.*fn3
That Hawkins knew of his right to remain silent and to have an attorney present at the time the challenged statement was given was not questioned at any time in the trial court and it is not questioned here. Additionally, it was conceded at trial that the statement involved was given voluntarily.*fn4 Hence, the question for decision narrows itself to a determination of whether a person accused of crime who has already engaged counsel may with full knowledge of his rights effectively waive his right to have counsel present while he is questioned by the police. We conclude he may.
Appellant's contention herein is in many ways similar to the argument advanced in Coughlan v. United States, 391 F. 2d 371 (9th Cir. 1968). There a confession was obtained from defendant at a time when he was represented by court-appointed counsel, a fact well known to the interrogating officers. No notice was given by these officers to defendant's counsel of the intended interviews and he was not present when the statement was taken. The court was asked to rule that any statement, admission, or confession secured by police from one represented by an attorney, where the attorney was not timely advised of the proposed interview or interrogation, be rejected as violative of the right to counsel. Appellant conceded that the Sixth Amendment right could be voluntarily waived but contended that such a waiver would never be knowing and Page 212} truly voluntary unless counsel was present to advise the client.*fn5
In rejecting this argument, the court observed at page 372 that: "It well may be that the day is approaching when the right to counsel may be expanded to the point where an accused may only be interrogated by the police in the presence of his lawyer. However, no persuasive precedent for the holding here sought has come to our attention.", but went on to hold that a clear and knowing waiver had been shown.*fn6 See also State v. Renfrew, 280 Minn. 276, 159 N.W. 2d 111 (1968). However, the following caveat was noted at page 372: "We . . . do not want to be considered as lending our approval to the practice, if indeed a practice exists, of interviewing accused persons in jail in the absence of
counsel. The better, fairer and safer practice is to afford the defendant's attorney reasonable opportunity to be present. When this is done the heavy burden of proving a waiver of ...