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.
[ 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 ...