No. 46 May Term 1977 Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division, at No. 664 May Session 1975.
Glenn C. Vaughn, York, for appellant.
Donald L. Reihart, Dist. Atty., Sheryl Ann Dorney, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result. Manderino, J., files a dissenting opinion.
Benjamin Franklin Davis was convicted by a jury in York County of murder of the first degree.*fn1 Proceedings were then conducted pursuant to the Pennsylvania Sentencing Code, 18 Pa.C.S.A. § 1311 (Supp.1977-78), and the jury fixed the penalty at death. Post-verdict motions were later denied and sentence of death was imposed as the jury directed. This appeal followed.
During the trial and also during the hearing conducted under the Sentencing Code, Davis was permitted by the trial court to represent himself,*fn2 although the public defender was directed by the court to stand by for Davis "to confer with." It is first urged that the court committed reversible error in permitting Davis to represent himself because: "1) the record does not affirmatively show Davis to have been literate, competent and understanding and to have been voluntarily exercising his free will in refusing the assistance of counsel; and 2) Davis was not made aware and warned of the dangers and disadvantages of self-representation in this capital case."
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1976), the Court made it clear that a defendant in a state criminal trial has a constitutional right to represent himself if he voluntarily and intelligently elects to do so.
In relevant part the Court said this:
"The question before us now is whether a defendant in a state criminal trial has a constitutional right to proceed
without counsel when he voluntarily and intelligently elects to do so. Stated another way, the question is whether a state may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. It is not an easy question, but we have concluded that a state may not constitutionally do so." [Emphasis added.] 422 U.S. at 807, 95 S.Ct. at 2527.*fn3
Thus, as to this assignment of error, the crucial question is: did Davis "voluntarily and intelligently" elect to represent himself? The trial court concluded he did and, in our view, the record clearly supports this conclusion. Pertinently, the record discloses this:
Silas "Babe" Feder was fatally shot while being robbed at a newsstand he operated in the City of York on April 19, 1975. Davis was taken into police custody in New York City for the crimes on May 31, and, after a hearing, was ordered extradited to Pennsylvania on August 22. He was arraigned before the Court of Common Pleas of York County on September 5. On September 8, the public defender entered an appearance on Davis' behalf and trial was listed for September 15.
On September 15, the case was called for trial. The Chief Public Defender, Attorney John H. Chronister, and Davis appeared before the court and the following ensued: