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COMMONWEALTH v. PONTON (11/17/72)

decided: November 17, 1972.

COMMONWEALTH
v.
PONTON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1967, No. 1173, in case of Commonwealth of Pennsylvania v. Withers Ponton.

COUNSEL

F. Emmett Fitzpatrick, Jr., with him Joseph Michael Smith, and Fitzpatrick & Smith, for appellant.

James D. Crawford, Deputy District Attorney, with him Maxine J. Stotland and Milton M. Stein, Assistant District Attorneys, 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 Pomeroy. Mr. Chief Justice Jones and Mr. Justice Manderino join in the opinion of the Court. Concurring Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this concurring opinion. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Roberts and Mr. Justice Nix join in this dissenting opinion.

Author: Pomeroy

[ 450 Pa. Page 41]

Shortly after midnight on May 28, 1967, the dead body of Catherine McMenamin was discovered lying on

[ 450 Pa. Page 42]

    the ground near Roxborough High School in Philadelphia. The appellant, Withers Ponton, was later indicted for her murder, and after a jury trial was found guilty of murder in the first degree. On this direct appeal from the judgment of sentence of life imprisonment, three issues are raised.*fn1

First, appellant contends that a statement made by him to the police and introduced at trial over objection was made without adequate warning of his constitutional right to free counsel if he were indigent, Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966); therefore, he argues, he could not have made a knowing and intelligent waiver of that right. Before being interrogated or giving any statement to the police, appellant was read the following warning from the standard police interrogation card: "If you cannot afford to hire a lawyer, and you want one, we will see that you have a lawyer provided to you before we ask you any questions."*fn2 In order to ascertain appellant's understanding of this right, the interrogating officer then asked "Do you understand that if you cannot afford to hire a lawyer, and you want one, we will not ask you any questions until a lawyer is provided for you?" Appellant answered "Yes", thereby unequivocally acknowledging his understanding of the warning as presented.

Without specifying the precise words to be used, the United States Supreme Court in Miranda held that ". . . it is necessary to warn [the accused] not only

[ 450 Pa. Page 43]

    that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him." 384 U.S. at 473. Where, as here, the explanation used by the police very clearly expresses the Miranda warning and the accused responsively acknowledges his understanding of this explanation, we can detect no deviation from the holding or the intent of the Miranda decision. While there may occur cases where a warning, adequate on its face, is in fact not understood, or where a seemingly adequate warning is not in fact genuine, this is not such a case.

Appellant would have us hold that any warning in which the accused is not told that he may have counsel "free of charge" is constitutionally inadequate. Although concerned with the right to free counsel on appeal, as distinguished from trial, the various opinions of this Court in Commonwealth v. Freeman, 438 Pa. 1, 263 A.2d 403 (1970) indicate there is no magic in the phrase "free of charge". While it may be good practice to include that phrase in the warning, all that is constitutionally required is that an indigent accused be informed that if he has insufficient funds to retain a lawyer, a lawyer will be provided for him. That standard was clearly satisfied in this case. See also, Commonwealth v. Knuckles, 448 Pa. 463, 275 A.2d 653 (1971); Commonwealth v. Franklin, 438 Pa. 411, 415, 265 A.2d 361 (1970).

The facts in Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970), are sufficiently dissimilar so that it cannot be considered controlling here. Though we held in Marsh that warnings like those in the present case were inadequate, there was an added element in that case; the issue was not only the adequacy of the warning, but also whether Marsh " was aware of all his rights". (Emphasis added.) 440 Pa. at 596. Since here the appellant unquestionably did have awareness

[ 450 Pa. Page 44]

    of his right to free counsel, we hold that his present challenge to the warning ...


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