Commonwealth v. Ponton

299 A.2d 634, 450 Pa. 40, 1972 Pa. LEXIS 328

• Court: Supreme Court of Pennsylvania
• Decided: November 17, 1972
• Docket: Appeal, 333
• Status: Published

Opinions

Opinion by

Mr. Justice Pomeroy,

Shortly after midnight on May 28, 1967, the dead body of Catherine McMenamin was discovered lying on the ground near Boxborough 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.¹

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.”² 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 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 of his right to free counsel, we hold that Ms present challenge to the warning as given is without merit.

Appellant next asserts that the evidence adduced at trial was insufficient to support a verdict of first degree murder. “[T]he test of the sufficiency of the evidence^—irrespective of whether it is direct or circumstantial, or both—is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon wMch if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.” Commonwealth v. Frye, 433 Pa. 473, 481, 252 A. 2d 580 (1969). See also, e.g., Commonwealth v. Chasten, 443 Pa. 29, 31, 275 A. 2d 305 (1971) ; Commonwealth v. Commander, 436 Pa. 532, 538, 260 A. 2d 773 (1970).

The testimony at trial warranted the jury in finding the following: On the eveMng of May 27,1967, Miss McMenamin, forty-three years old, four feet four inches in height and with a developmental age of ten years, was driven by her brother to a movie theatre, which she entered by herself. After the movie, at approximately 10:30 P.M., the deceased went to a neighborhood tavern in the company of appellant, who is six feet tall and weighs 164 pounds. They had a few drinks, and played shuffle bowling on a pinball macMne. The deceased was observed to place a Pall Mall cigarette, offered her by appellant, into her purse. The couple left the bar together at approximately 11:15 P.M.

Around midnight appellant was next seen walking alone about fifty feet from the entrance to the Roxborough High School grounds. He was apparently dressed in the same light shirt he had worn in the bar earlier in the evening. Half an hour later, a disheveled body, later determined to be that of Miss McMenamin, was discovered lying on the ground near the High School, a pack of Pall Mall cigarettes nearby. The victim’s face was covered with lacerations and abrasions, her skirt ivas hiked above her knees, and, as it was determined upon later examination, semen stains marked her underclothes. At 2:0G A.M., appellant approached another tavern in the Eoxborough area. The tavern keeper said appellant looked as though he had been in a fight and was wearing a bloodstained “T” shirt. At about 3 :45 A.M., appellant was discovered walking on a highway in the neighborhood by two policemen answering a call that there was a hospital case on the highway. Appellant had blood on his “T” shirt and blood on his hands and face.

Appellant later made a statement to the police, the voluntariness of which is discussed above, containing an admission that he had hit the decedent in the face after she refused his advances. Dr. Marvin Aronson, Assistant Medical Examiner of the City of Philadelphia, testified unequivocally that the victim died from “blunt injuries of the face” and anoxia (an insufficiency of oxygen), and that the manner of death was homicide. He gave it as his opinion that, because of the deceased’s diminutive size, the anoxia could have been caused by someone lying on top of the victim with his chest over her face. Tests from the crime laboratory showed that the blood found on appellant’s “T” shirt matched that of the deceased and differed from his own. They also established that appellant’s undershorts were stained with semen.

We have no hesitancy in concluding that the evidence summarized above amply supports the verdict of first degree murder, whether as a willful, deliberate and premeditated killing or as a killing which occurred in the course of au attempted rape by appellant upon the victim, i.e., a felony-murder.

Appellant’s final contention is that the trial judge committed reversible error in his charge by directing the jury not to consider voluntary manslaughter as a possible verdict. Whatever may be the merits of this contention under other circumstances,³ the point has here been waived. At the close of the testimony the defense had demurred to a separate voluntary manslaughter bill of indictment, and the demurrer had been sustained. Presumably this was a deliberate tactic on appellant’s part to enhance the chances of a verdict of acquittal by removing the opportunity for a compromise manslaughter verdict. Appellant cannot charge the court with error when the propriety of conviction for voluntary manslaughter had been removed from the case by his own motion.

Judgment of sentence affirmed.

Mr. Chief Justice Jones and Mr. Justice Manderino join in the opinion of the Court.

1 This case was first argued November 12, 1971. We later ordered reargument, which was had May 2, 1972.

2 The Commonwealth informs us in its brief that since the date when Ponton was given his warnings, the District Attorney’s office in Philadelphia has modified its warning card to provide explicitly for the right to “free” counsel. The adoption of this new mode of expression cannot, of course, affect our view of the constitutionality of the challenged warning.

3 See Com. v. Arcuroso, 283 Pa. 84, 128 A. 668 (1925) ; Com. v. Banks, 447 Pa. 356, 364, 285 A. 2d 506 (1971) (dissenting opinion of Mr. Justice Pomeroy) ; Com. v. Matthews, 446 Pa. 65, 285 A. 2d 510 (1971) (dissenting opinions of Mr. Justice Roberts and Mr. Justice Pomeroy).