Com. v. Dixon

• Decision Date: 12 November 1968
• Citation: 432 Pa. 423,248 A.2d 231
• Parties: COMMONWEALTH of Pennsylvania v. Mary DIXON, Appellant. COMMONWEALTH of Pennsylvania v. Nick KONTOS, Appellant.
• Court: Pennsylvania Supreme Court

Page 231

248 A.2d 231

432 Pa. 423

COMMONWEALTH of Pennsylvania v. Mary DIXON, Appellant.

COMMONWEALTH of Pennsylvania v. Nick KONTOS, Appellant.

Supreme Court of Pennsylvania.

Nov. 12, 1968.

Rehearing Denied Dec. 19, 1968.

Carl Blanchfield, Pittsburgh, for appellant Mary Dixon.

Louis C. Glasso, Pittsburgh, for appellant Nick Kontos.

Robert W. Duggan, Dist. Atty., Charles B. Watkins, Asst. Dist. Atty., Pittsburgh, for appellee.

Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellants were tried separately and convicted of murdering Hazel Deere, a seventy-two old spinster, in the course of executing a robbery in the deceased's apartment. Both appellants were found guilty of murder in the first degree, and both were sentenced to life imprisonment.

Although the facts of these cases are complicated, and although appellants raise numerous points in their quest for reversals, we can confine our discussion to the problem of whether the Commonwealth fulfilled its burden of proving that appellants knowingly and intelligently waived the assistance of counsel before making statements which subsequently were introduced at their trials. Both cases pose the issue in a similar manner.

In No. 83, Commonwealth v. Dixon, the district attorney testified at the Suppression Hearing as follows:

'Q. Did you give her any other advice at the time?

A. Yes, I told her that she didn't have to give us a statement. If she did anything she said would be used against her. I asked her if she wanted a Lawyer and she said no, she wanted to tell us her story first * * *.'

Record of Suppression Hearing, p. 478.

The district attorney answered affirmatively when asked if he had 'warned her of her constitutional rights,' and reiterated that when he asked 'if she wanted a Lawyer she said, 'I am going to tell the whole story. " Record of Suppression Hearing, pp. 543--44.

In No. 99, Commonwealth v. Kontos, appellant initially was questioned by police officers, one of whom advised him 'if he wanted to call a lawyer that he had that right, or he could remain silent.' Record of Suppression Hearing, p. 69. After about an hour of questioning, a new officer took over, warning appellant that he could refuse to answer questions or could 'call counsel.' The second officer expressly testified that he did not tell appellant of his right to have free counsel appointed. Record of Suppression Hearing, p. 454. Several hours later, the district attorney instructed appellant 'that he had a right to counsel. * * * that we would secure counsel for him if he chose for us to do so.' Record of Suppression Hearing, p. 478.

Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which applies to this case under Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), requires the Commonwealth to sustain the burden of proving that appellants made a knowing and intelligent waiver of the assistance of counsel before making their statements to the police and district attorney. We recently emphasized in Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968) 'that as a matter of law there cannot be a finding of a knowing and intelligent waiver of the right to counsel unless the accused shall have been explicitly informed that he is entitled to Free counsel if he is indigent.' (Emphasis in original.) Cf. Commonwealth v. Bordner, Pa., 247 A.2d 612 (1968); Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). 'Merely telling a defendant that he is 'entitled' to counsel will be a meaningless gesture if he is not made aware that Free counsel will be supplied if necessary.' Commonwealth v. Ritchey, supra.

The district attorney's testimony as to appellant Dixon indicates that he only asked appellant 'if she wanted a lawyer.' Although the district attorney also testified that he warned appellant Dixon 'of her Constitutional rights,' it hardly can be assumed from this statement that his explanation was such that appellant understood 'the full dimensions of the right (to counsel).' Commonwealth v. Ritchey, supra. This testimony in no way meets the evidentiary burden which the Commonwealth must meet under Miranda in order to establish a knowing and intelligent waiver. In this case, where the warning was given Before the Miranda decision, it is particularly unlikely that the district attorney's statement of appellant's constitutional rights was sufficient to meet the Miranda standard.

Appellant Kontos also was not explicitly warned of his right to free counsel. Although the district attorney told Kontos that 'we would secure counsel for him if he chose for us to do so,' this is not sufficient to indicate to appellant that he had the right to Free counsel if necessary. In any event, by that time appellant had already been under interrogation for several hours.

The Commonwealth argues that it was not necessary for Kontos to be told of his right to free counsel because it was known that he was already represented by an attorney. In Miranda, the Court noted that 'While a warning that the indigent may have counsel appointed need not be given to the person who is known to have an attorney or is known to have ample funds to secure one, the expedient of giving a warning is too simple and the rights involved too important to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score.' 384 U.S. at 473 n....