Nos. 158 and 166 March Term, 1977, Appeal from the Judgments of sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at Nos. CC7508279 and CC7508503.
H. David Rothman, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Robert A. Zunick, Asst. Dist. Attys., Pittsburgh, for appellee.
O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., did not participate in the consideration or decision of this case. Manderino, J., concurs in the result. Roberts, J., filed a concurring opinion.
On October 17, 1975, one of four men who were attempting to rob the employees of a liquor store in the City of Pittsburgh as they were transferring the store's receipts to the bank, shot and killed one of the store's employees. Appellant, Reuben Peoples, was subsequently convicted for his participation in the crime after a non-jury trial. He was sentenced to a term of imprisonment of ten to twenty years for murder of the third degree and a concurrent sentence of ten to twenty years for the robbery offense.*fn1 This is a direct appeal from the judgments of sentence. We now affirm.
Appellant contends that the record does not establish an intelligent waiver of the right to counsel and the right to remain silent. Although not expressly stated the arguments marshalled in support of this contention implicitly invite us to adopt the view that there can never be an intelligent waiver in the absence of counsel. This we decline to do. Commonwealth v. Goodwin, 460 Pa. 516, 520-521, 333 A.2d 892, 895 (1975).
We have stated that the scope of review where the inquiry focuses upon a waiver of Fifth and Sixth Amendment rights is:
"The burden to prove a valid waiver by a preponderance of the evidence is upon the Commonwealth, Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972), and our responsibility upon review is to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Stafford, 451 Pa. 95, 101, 301 A.2d 600 (1974); Commonwealth v. Sharpe, 449 Pa. 35, 44, 296 A.2d 519, 524 (1972). In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Culombe v. Connecticut, supra [367 U.S. 568] at 604 [81 S.Ct. 1860, 6 L.Ed.2d 1037]; Commonwealth ex rel. Butler v. Rundle, supra, 429 Pa.  at 149-150, 239 A.2d at  430-431." Commonwealth v. Goodwin, supra, 460 Pa. at 522-23, 333 A.2d at 895.
The Commonwealth meets its burden where it is established that the decision to speak without counsel was the intelligent, unconstrained choice of the accused. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). For the decision to be a knowing one it need be shown that the accused had been advised of and understood the panoply of rights possessed by one faced with custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
There was ample evidence to support a finding that appellant was fully advised of his rights and that he voluntarily and knowingly elected to respond to the custodial interrogation. As previously stated the objections that are now being raised, such as appellant did not invite the questioning, that the police did not fully explain the legal implications of the ...