Burton A. Rose, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurred in the result.
Appellant, Alvin Tyler, was arrested and indicted for murder, voluntary manslaughter, and involuntary manslaughter; these charges arose from the death of one, Anita Staton. Counsel was appointed by the court to represent appellant. Court appointed counsel entered an appearance on appellant's behalf and represented appellant at the preliminary hearing and at further pretrial proceedings. On July 22, 1974, immediately prior to commencement of trial, appellant requested that his court appointed counsel be dismissed and that new counsel be appointed. At that time appellant alleged an irreconcilable difference of opinion between himself and his court appointed counsel as to the manner in which the trial of his case should be conducted. Appellant's court appointed counsel acknowledged the existence of such a difference of opinion, but advised the court that he was precluded by the attorney-client privilege from further explaining
the nature of the difficulties. Appellant's motion was denied by the trial court. Appellant stated to the court that he would not allow his court appointed counsel to represent him, acknowledged that he was financially unable to secure private counsel, requested the court to provide other counsel for him, and, in light of the court's refusal to appoint other counsel, advised the court that he would represent himself. The trial court then ordered the court appointed counsel to remain and be available for such consultation as "[appellant] cares to make of you," and to "take such steps as appear to be necessary, proper and appropriate on [appellant's] behalf throughout this entire proceeding."
Trial was thereafter held before the judge and a jury from July 22, 1974, through July 25, 1974. Throughout the three days of trial, appellant acted as his own attorney. At the conclusion of the trial appellant was found guilty of second degree murder. Post-verdict motions were filed and argued by the same counsel originally appointed by the court. These motions were denied, and appellant was sentenced to not less than five nor more than twenty years imprisonment. This appeal, in which appellant is represented by new counsel, followed.
Appellant raises three arguments in support of his request for a new trial. In light of our conclusion that appellant did not voluntarily, understandingly, and intelligently waive his constitutional right to counsel during the trial, we need not consider the other two arguments presented. As stated by the prosecution in its brief, any determination as to the validity of appellant's position here requires us to consider:
"(1) Whether the trial court properly denied appellant's request for the appointment of counsel, and (2) if such denial was justifiable, whether the trial court properly allowed appellant to proceed pro se. "
We conclude that the answer to both questions requires that appellant be ...