No. 245 Special Transfer Docket Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lehigh County, at No. 1523
Thomas A. Wallitsch, Public Defender, Allentown, for appellant.
Henry S. Perkin, Assistant District Attorney, Allentown, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 270 Pa. Super. Page 33]
On April 26, 1972, appellant, Roy Williams, was convicted of murder of the first degree by a jury which thereafter set his sentence at life imprisonment. Following denial of his post-verdict motions, appellant appealed to the Supreme Court of Pennsylvania, who reversed the judgment of sentence and ordered a new trial. Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975).*fn1
A second trial was held and, on March 2, 1976, appellant was again convicted by a jury of murder of the first degree. Post-verdict motions were denied and, on March 30, 1978, appellant was sentenced to life imprisonment. This appeal followed.
[ 270 Pa. Super. Page 34]
Appellant's first assignment of error charges that the court below erred in refusing his request to act as co-counsel with his attorneys. It is clear that an accused in a state criminal trial has a constitutional right to represent himself if he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1976); Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978).
There is, however, a distinction between the constitutional right to proceed pro se pursuant to a valid waiver of the right to counsel and a right to proceed pro se and with counsel. While we have unearthed no Pennsylvania cases disposing of this precise issue, numerous other courts have considered the question in the wake of Faretta, supra. Those courts have held with near unanimity that a criminal defendant has no sixth or fourteenth amendment right to act as co-counsel where he is already represented by an attorney and that a decision to permit such "hybrid" representation is better left to the the sound discretion of the trial court.*fn2 We find no persuasive reason to hold otherwise.
Appellant would also have us construe Article I, section 9 of the Constitution of Pennsylvania as positing a right for one criminally accused to act as co-counsel in his defense.*fn3 The construction which appellant urges upon us was rejected by this court in Commonwealth v. Ferenc, 92 Mont.L.R. 176 (1970), aff'd. mem., 216 Pa. Super. 782, 261 A.2d 117 (1970).*fn4
[ 270 Pa. Super. Page 35]
We consequently conclude there is no right, deriving from either the United States Constitution or Constitution of Pennsylvania, for a criminal defendant to proceed as co-counsel in his own defense.
Appellant next contends the court below erred in permitting the Commonwealth to introduce evidence of two prior violent assaults by appellant upon the victim, his wife. Both incidents occurred within six months of the murder of which appellant was convicted. It is well established that evidence of prior threats and offenses involving an accused and decedent may be admissible to show malice, motive or intent, provided such previous incidents are related to the offense for which the accused is on trial. Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972). This may be especially so where the crime is one between husband and wife and the nature and quality of the spousal relationship is at issue. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977). In Ulatoski, id., our Supreme Court held the trial court did not err in admitting evidence of the accused's physical abuse of his wife, incidents which occurred between nine and seventeen months prior to her death. Instantly the occurrences were more proximate in time to the killing than were the episodes in Ulatoski and are no less related to the crime with which the accused was charged. No error is perceived in admitting evidence concerning them.
Next assigned as error is a ruling of the trial court admitting into evidence a statement made by appellant to Dr. Robert M. Sacks while the latter was ministering to appellant in the hospital following his arrest. When appellant was apprehended by police he was taken to the emergency room of Easton Hospital for treatment of a leg wound. Dr. Sacks testified that fearing the wound might have been harboring a bullet or other foreign object, he inquired as to its cause. When appellant did not answer, Dr. Sacks indicated he would have to probe the wound to determine whether a foreign object was present. Appellant then responded that the wound was "from a knife."
[ 270 Pa. Super. Page 36]
Appellant contends that Dr. Sacks was acting as an agent of the police when he questioned him concerning the cause of the wound, and that as such in the absence of constitutional warnings, the rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) requires the exclusion of any statements made by appellant during his treatment.
While Dr. Sacks did testify the police had asked him to "find out what happened," he nevertheless repeatedly testified he did not act on the promptings of the police, but asked appellant only those questions necessary to properly treat his wound. We accordingly find no merit in appellant's assertion that Dr. Sacks was acting as an agent of the police and hold that the statement was properly admitted.
Appellant argues the court below erred in admitting evidence of his statements and conduct in the presence of police and correctional officers several hours after the stabbing, evidence which was offered to prove appellant's sanity. Appellant's assignment of error is two-fold: first, that such evidence is irrelevant to the issue of sanity; and second, that even if relevant, the evidence was insufficient to meet the Commonwealth's burden of proving sanity beyond a reasonable doubt.
The first of appellant's contentions is clearly without merit. It is well-settled in Pennsylvania that lay witnesses may properly give evidence to establish the sanity of an accused who has offered expert testimony as to his insanity. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974); Commonwealth v. Ross, 239 Pa. Super. 94, 361 A.2d 685 (1976).
Of more moment is appellant's second assertion that the evidence was insufficient to prove beyond a reasonable doubt that appellant was sane.
We begin by observing that the trial court clearly and accurately presented the issue of sanity to the jury for its resolution. The court's charge to the jury on the issue of sanity included the following:
[ 270 Pa. Super. Page 37]
"In view of what I have said regarding the legal test of insanity and the Commonwealth's burden of proof, you cannot find the Defendant guilty unless you are satisfied beyond a reasonable doubt that at the time of the killing either the Defendant has no mental disease or defect or if he did have a mental disease or defect that he was not, as a result of such disease or ...