Appeal from judgment of Court of Common Pleas of Lebanon County, No. 566 of 1970, in case of Commonwealth of Pennsylvania v. Herbert C. Rhoads, Jr.
Joseph C. Mesics, Public Defender, for appellant.
George E. Christianson, District Attorney, with him David J. Brightbill, Assistant District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J.
[ 225 Pa. Super. Page 210]
Appellant was convicted of statutory rape of a child not quite four years old. On this appeal appellant raises the same four issues that he raised in the court below.
Appellant first asserts that a statement made by him while in police custody was improperly admitted because obtained in violation of his rights under the Fifth Amendment as articulated in Miranda v. Arizona, 384 U.S. 436 (1966). His position is that he did not fully understand the warnings that were recited to him and therefore could not have made a "knowing and intelligent" waiver of his right to have counsel. In support he cites his limited education, limited mental capacity, and emotional problems at the time of the arrest.
At the suppression hearing the detective who had interrogated appellant testified that he had "read the card" to appellant, and that after about five minutes of conversation appellant "broke down and cried and went on his knees in front of Detective Roland and said
[ 225 Pa. Super. Page 211]
he knows he shouldn't have done it, he's sorry for doing it, he needs help, he knows he needs medical attention."
Appellant argues that it was not explained to him that he had a right to court-appointed counsel prior to any questioning. Putting aside the fact that this argument was not made at the suppression hearing or at trial, and so comes too late, we note that the detective's testimony that he had "read the card" presumably referred to a standard police card containing all the required constitutional warnings.
In the circumstances we must agree with the decision of the court below sustaining the ruling that appellant's confession should be admitted. The Commonwealth has the burden of showing by a preponderance of the evidence that a confession was voluntarily made. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). However, even where it is alleged that the confession was obtained by threats of physical coercion and that a request to have counsel present was ignored, it is left to the trier of fact to decide whom to believe. Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971). When a challenge is made as to the validity of an apparently valid waiver, the burden is on the defendant "in any subsequent attack on the conviction to establish by a preponderance of the evidence that his acquiescence was not sufficiently understanding and intelligent to constitute an effective waiver". Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 199, 236 A.2d 781 (1968). Thus in a case involving a defendant who was completely uneducated, illiterate, and of low mental capacity, but who could give a coherent narration when asked questions at the hearings and trial, it was held that a person of below average mental ability can "knowingly and intelligently" waive a constitutional right. Commonwealth v. Abrams, 443 Pa. 295, 278 A.2d 902 (1971).
[ 225 Pa. Super. Page 212]
The record reflects that appellant testified coherently. The court below could find that he had been properly advised of his rights with respect to the interrogation and that he adequately ...