Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 528-530 April Term, 1975.
John W. Packel, Assistant Defender, Philadelphia, for appellant.
Deborah E. Glass and Steven H. Goldblatt, Assistant District Attorneys, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Hoffman and Price, JJ., join.
[ 247 Pa. Super. Page 466]
Appeal is taken to our Court from judgments of sentence following jury verdicts of guilt on indictments charging theft by deception,*fn1 forgery*fn2 and theft by receiving stolen property.*fn3 Post-trial motions were made and denied. Only one issue has been preserved for appeal and briefed before us -- whether it was error for the lower court to have denied appellant's request to proceed with his trial without the assistance of court-appointed counsel, a member of the staff at the Defender Association of Philadelphia.
Trial of the case was first set for June 9, 1975. No court was available on that day and the case was continued to July 30, 1975. The Commonwealth asked for a continuance which was granted. On September 10, 1975, defendant's motion to suppress physical evidence was heard and denied; the testimony of a Commonwealth witness who was in ill health was taken. Trial was relisted for September 30, 1975, when it was again continued at the Commonwealth's request to October 27, 1975. On that date the defendant requested a jury trial and the case was put over to October 29, 1975.
[ 247 Pa. Super. Page 467]
During all this time the defendant was represented by counsel from the Public Defender's Office of Philadelphia. On October 29, 1975, the defendant announced to the court that he did not want to be represented by Attorney Drew Salaman who had been designated by the Public Defender to defend Glover nor by anyone else from the Office of the Public Defender. The defendant said further that he did not want to represent himself and that his family was making arrangements for Attorney Edward Rendell to act as his counsel. The court thereupon held the case over for a day to enable Mr. Rendell to appeal.*fn4 On the following day the defendant appeared without private counsel. He asked that the court appoint new counsel or he would represent himself.
The court examined the defendant with respect to his proposed waiver of counsel. It became apparent that the defendant had only a 9th grade education, that he did not know the nature of the charges against him, that he was not aware of possible defenses nor of mitigating circumstances, that he did not understand the constituent elements of the charges nor the possible penalties and he had never before represented himself in court.*fn5
Both our state and federal constitutions give the right to one accused of crime to be represented by counsel. The court uses confirming this right are legion. In the case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the Supreme Court held that one accused of crime has a concomitant right to represent himself. On the one hand the court held that ". . . no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel," at 422 U.S. 832, at 95 S.Ct. 2540, at 45 L.Ed.2d 580. In Commonwealth ex rel. McCray v. Rundle,
[ 247 Pa. Super. Page 468415]
Pa. 65, 202 A.2d 303 (1964) our Supreme Court cited with approval the case of Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 ...