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decided: June 21, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1973, Nos. 880, 881, and 882, in case of Commonwealth of Pennsylvania v. Michael Grant.


Andrea Levin, Assistant Defender, with her John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

David Richman, Assistant District Attorney, with him Paul J. Sullivan, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 229 Pa. Super. Page 421]

On August 6-8, 1973, appellant, Michael Grant, was tried and convicted by a Philadelphia County jury on charges of carrying a concealed deadly weapon, violation of the Uniform Firearms Act (unlawfully carrying a firearm without a license and carrying firearms on a public highway), playfully and wantonly pointing a firearm, and aggravated robbery, arising out of the robbery of one Willie F. Brown in the 19th Tee Bar on February 24, 1973.

Sentence was deferred pending the filing of post-trial motions and for a neuro-psychiatric examination and a pre-sentence investigation. On October 24, 1973, after post-trial motions were denied, appellant was sentenced ten to twenty years for aggravated robbery, three years concurrent probation on the charges of carrying a concealed deadly weapon, carrying a firearm without a license, and carrying firearms on a public street, and one year concurrent probation for playfully pointing a firearm.

On August 6, 1973, when appellant's case was called for trial, the following colloquy, before Judge Thomas M. Reed, which forms the basis of this appeal, took place:*fn1 "The Court: The Court calls the case of

[ 229 Pa. Super. Page 422]

Michael T. Grant. Miss Frankel: Your Honor, the Commonwealth is ready to proceed. The Court: What about defense counsel? Mr. Kelly: Your Honor, at this time I ask -- I have not talked to the defendant. I understand he wants to represent himself. I personally have not talked to him about the case. I think maybe His Honor would like to question the defendant about representation. The Court: Yes. Mr. Grant, come forward, please. You wish to represent yourself, sir? The Defendant: Your Honor, I ask the Court if it's possible for me to get private counsel? The Court: You don't want counsel who has been assigned to you? The Defendant: No, sir. The Court: All right. You can fire him. Tell him he is fired. The Defendant: Pardon me, sir? The Court: You can fire him. Go ahead and tell him he is fired. The Defendant: This man here? The Court: Yes, I can't hear you. Did you fire him? The Defendant: Yes, sir. The Court: You just fired him right now. This is all on the record. All right. You will represent yourself then. Mr. Kelly: Your Honor, just for the record, I think he did ask His Honor for other counsel, private counsel, to be appointed. The Court: That motion is denied. You will represent yourself. Now, the Voluntary Defender, Mr. John Kelly, will sit at counsel table with him, make yourself available to him for any questions he may want to ask you during the course of the trial. You are to consult with him anytime you want to, Mr. Grant; do you understand that? The Defendant: Yes, sir." (NT vd2) (Emphasis added.)

Appellant contends that on the basis of this colloquy his constitutional right to representation was denied because he was forced to proceed at trial pro se. Specifically, appellant argues that he did not intelligently and voluntarily waive his right to counsel.*fn2 We

[ 229 Pa. Super. Page 423]

    agree with appellant's contentions, and, therefore, reverse the judgment of sentence of the lower court and remand for a new trial.

It is well settled that a criminal defendant has the right to be represented by counsel at trial. Gideon v. Wainwright, 372 U.S. 335 (1963). However, under appropriate circumstances, the right to be represented may be waived. In order to be a valid and effective waiver, it must be the voluntary and intelligent act of the defendant. Johnson v. Zerbst, 304 U.S. 458 (1938); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971). To evaluate whether a waiver of representation by counsel is valid, this court must determine whether or not the waiver was made ". . . [W]ith an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered." (Emphasis in original.) Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69-70, 202 A.2d 303, 305 (1964) (quoting from Von Moltke v. Gillies, 332 U.S. 708, 724 (1948).

The finding of a waiver may not be made lightly, Moore v. Michigan, 355 U.S. 155 (1957); Commonwealth ex rel. McCray v. Rundle, supra, and if the record does not affirmatively show the waiver, the burden of proving the waiver is on the Commonwealth.*fn3

[ 229 Pa. Super. Page 424]

    which included four weapons charges. As a result, a comprehensive explanation by the court was necessary.*fn4 Such a requirement has been recognized by the Pennsylvania Supreme Court which has emphasized the need to acquaint a defendant with an understanding of the charges and possible defenses, which are readily apparent, especially when they are of a highly technical nature. Commonwealth ex rel. McCray v. Rundle, supra, at 70; Commonwealth ex rel. O'Lock v. Rundle, supra, at 526.

In a similar case, Commonwealth v. Stanley, 214 Pa. Superior Ct. 118, 251 A.2d 681 (1969), involving charges of auto larceny and receiving stolen goods, this court, in recognizing the possible intricacies of the trial and that a defense to receiving stolen goods requires a subtle knowledge of mens rea, reversed the conviction because the lower court had conducted examinations far short of demonstrating an intelligent waiver of counsel. Judge Hoffman, in his opinion, noted that: ". . . [T]he complexity of circumstances involved in appellant's trial produced a situation in which a layman, untutored in the law, could not represent himself with the skill and understanding that a lawyer would bring to the case.

"Accordingly, it was incumbent on the court to conduct a full and complete colloquy with appellant before allowing him to proceed to trial without benefit of counsel." 214 Pa. Superior Ct. at 121, 251 A.2d at 682.

[ 229 Pa. Super. Page 426]

It is also evident from the record that appellant's waiver of right to counsel was not voluntary. Waiver may not be found from the appearance of appellant without counsel, Rice v. Olsen, 324 U.S. 786 (1945), or from the failure to request counsel. Carnley v. Cochran, supra. See Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964). The colloquy indicates that appellant merely informed the court that he wanted private counsel appointed, and did not make a precise request to represent himself. When appellant's request was denied, he was directed by the trial judge, without further advice, to fire the public defender and represent himself.*fn5 When appellant

[ 229 Pa. Super. Page 427]

    hesitated in confusion, the court pressed him: "Go ahead and tell him he is fired." As a result of this colloquy, the appellant did not voluntarily waive his right to counsel, but rather appellant acquiesced in the waiver only after prodding by the trial judge. Cf. Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969).

Appellant may not frustrate or obstruct the orderly procedure of the court and the administration of justice by continual insistence of representation by private counsel, even though unable to afford such representation, or the continual refusal of the services of the public defender. See United States ex rel. Fletcher v. Maroney, 280 F. Supp. 277 (W.D. Pa.), cert. denied, 393 U.S. 873 (1968); Commonwealth v. Puntari, 198 Pa. Superior Ct. 70, 181 A.2d 719 (1962). However, as in the instant case, the intransigent behavior by the appellant does not negate the requirement for a full and complete colloquy in order that appellant may make a competent and intelligent waiver of his right to counsel.

For these reasons we find that the colloquy between the court and the appellant does not support a claim of voluntary and intelligent waiver of counsel by the appellant at trial.

Judgment of sentence reversed, and case remanded for a new trial.


Judgment of sentence reversed and case remanded.

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