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COMMONWEALTH v. JORDAN (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
JORDAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1967, No. 413, in case of Commonwealth of Pennsylvania v. John Jordan.

COUNSEL

Donald J. Goldberg, for appellant.

Maxine J. Stotland, Assistant District Attorney, with her Milton M. Stein, Assistant 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 and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Nix took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissenting opinion.

Author: Pomeroy

[ 451 Pa. Page 276]

The sole question on this appeal is the adequacy of the warnings relative to his right to counsel, given to appellant on three separate occasions prior to his oral and written confessions.*fn1 He was advised that he could consult a lawyer of his choice before interrogation, and that the lawyer could be present during interrogation. He was then told, "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". Appellant replied affirmatively as to his understanding of the right to counsel. On the first giving of the Miranda warnings (prior to submitting to a polygraph test) he stated that he had done nothing wrong and did not need a lawyer; on the second giving of the warnings (prior to questioning five days later) his response was, "No, I will do my own talking".

Appellant now argues that the warnings did not explicitly inform him that he was entitled to free counsel

[ 451 Pa. Page 277]

    if he was indigent. The identical argument with respect to the identical warning was recently considered and rejected by this court in Commonwealth v. Ponton, 450 Pa. 40, 43-47, 299 A.2d 634 (1972).*fn2 What we said there is equally applicable here, and is dispositive of this case: "Where . . . 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. . . . Since here the appellant unquestionably did have awareness of his right to free counsel, we hold that his present challenge to the warning as given is without merit".

Appellant was thirty-two years of age at the time of his arrest; he had completed high school through the eleventh grade; his acknowledgments that he understood his right to be provided with counsel if he could not afford one were unequivocal. We conclude that the court below was correct in finding that the confession was voluntary and should not be suppressed.

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

I.

Dissenting Opinion by Mr. Justice Roberts:

"The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent

[ 451 Pa. Page 278]

-- the person most often subject to interrogation -- the knowledge that he too has the right to have counsel present [at a custodial interrogation]. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it." ...


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