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December 11, 1981


No. 2791 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Monroe County, Criminal Division, at No. 391 of 1978.

Before Wickersham, Montemuro and Watkins, JJ. Montemuro, J. files a dissenting opinion.

Per Curiam:

Judgment of sentence affirmed.


I must dissent from the opinion of the majority in this matter; the decision to affirm the judgment below in the face of the record in this case is in direct conflict with the law of this Commonwealth.

Appellant, Gilbert Dominguez, was convicted by a jury of robbery,*fn1 burglary,*fn2 felonious restraint,*fn3 kidnapping,*fn4 and criminal conspiracy.*fn5 Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of six (6) to twelve (12) years.

The single issue of merit raised by appellant on appeal is the contention that he did not receive his constitutionally-mandated right to effective representation at trial. The record absolutely supports this contention. Defendant did not have counsel, he did not knowingly and intelligently waive the right to have counsel, and neither he himself nor his court-appointed public defender represented him effectively.

The public defender was appointed to represent defendant-appellant on April 21, 1978. From that date until time of trial on October 9, 1978, counsel had one fifteen-minute interview with defendant (R.NT 02/21/80, pp 4-5), and had brief meetings in conjunction with other scheduled hearings which were used by counsel to inform defendant of technical maneuvers (R.NT 02/21/80, pp 5, 7, 8, 9, 11, 12). There was never a full interview between counsel and defendant. (R. NT 02/21/80, pp 5-6)

On September 5, 1978, approximately a month before trial and five months after counsel had been appointed, appellant filed a pro se petition alleging that he was indigent, requesting new court-appointed counsel, and further alleging that the public defender was biased against him and had not made himself available to prepare the case. On the record, as noted supra, these allegations were not without foundation. On September 11, 1978, the lower court denied that petition.

One day prior to trial defendant and his appointed counsel finally met. At this time the public defender was not prepared to try the case as he had assumed that appellant intended to enter a guilty plea. (N.T. 02/21/80 p. 18) Appellant informed counsel that he would not accepted his services and that he wanted to replace him with private counsel, a statement which naturally further discouraged the public defender from any preparation of the case. (N.T. 02/21/80, p. 13)

On October 9, 1978, the Commonwealth called the case to trial (N.T. 10/9/78). Both the defendant pro se and his appointed counsel moved for a continuance to enable him to obtain private counsel. (N.T. 10/9/78, pp. 3-5). The motion was denied. The court stated that defendant had been informed a month prior that he would not receive new appointed counsel and that the trial would not be continued. Id.

At sidebar, the judge was informed by counsel that defendant had instructed him not to take any active part in the trial.

Defendant : They can do everything I got to do. They deny me everything else. They can do whatever they want to do. I'm not doing anything.

Counsel : And do you desire me to do anything?

Defendant : No, I'm not doing nothing, no, sir. I don't want you to do anything. They can railroad me all the way.

(Id. pp. 3-4)

The court introduced the jury to the defendant and the public defender, stating that the defendant was "represented" by counsel. Defendant thereupon stated, "I have no representation." Id. at 6.

No colloquy was held to determine that the defendant's waiver of counsel was knowing and competent.

Furthermore, the defendant's work in his own behalf was acknowledged by the judge and the public defender to be inadequate:

Public Defender : There seems to be an irretrievable breakdown, and the defendant seems incapable of handling this case.

The Court : That is his choice, isn't it?

Public Defender : He's choosing not to handle the case and not to ask for assistance. That's his own decision.

The Defendant : I just totally reject everything that takes place from the time that the judge denied my postponement. Everything that takes place here is against my objection. I totally disagree with everything that takes place. I totally disagree with the Panel of the Jury. (Id. at 13)

As the trial continued, the court, the defender and the district attorney all unequivocally accepted the fact that defendant was not represented by counsel.

Assistant District Attorney : Should I explain to them that he has no counsel?

The Court : Just refer to the defendant.

Assistant District Attorney : Maybe I should not even get into questions concerning whether or not anyone knows Mr. Muth? [The Public Defender]

The Court : I suppose that is correct.

The Defendant : That is correct.

The Court : Mr. Muth, of course, you understand that you are really here to sit by and aid him if he calls upon you to aid him.... (Id. 12, 13)

Public Defender : What I'm concerned about is that the suggestions are being made but the defendant is still conducting the defense. I've forgone a lot of questioning. I just wanted the reason for that to be clear. (Id. 91-93)

The Court : Let the record show that Juror Number 6 has indicated to the Court that she has a problem concerning the case and that the court has brought the Juror into Chambers without counsel, because the Defendant also is his own counsel. (Emphasis supplied) (Id. 89)

The record is crystal-clear. The defendant did not want to represent himself; he did not knowingly and competently waive his right to counsel; he was not prepared to represent himself competently; insofar as he did act as his own counsel, he did so reluctantly and ignorantly.

That the defendant was street-wise and realized that circumstances had handed him an excellent opportunity for appeal is also obvious on the record. It is easy to sympathize with the frustration of the court below when faced with a defendant who will not enter a plea, will not accept court-appointed counsel, will not willingly assume his own defense, and has no funds to obtain private counsel. Nevertheless, the right to representation by counsel at trial rises to constitutional level. We refuse to see the deprivation of a fundamental, constitutionally guaranteed right as harmless error. The law of this Commonwealth compels a reversal of the order of the court below and a remand for a new trial.

The majority appears to base its decision on two cases; Commonwealth v. Dale, Pa. Super. . A.2d (j. 1121/79, Docket No. 2555, October Term 1978, filed April 20, 1981), and Commonwealth v. Charlett, Pa. Super. . 422 A.2d 659 (1980). It is startling, therefore, to discover upon review of these two cases that in both, upon facts extraordinarily similar to those in the instant action, the lower court is reversed and the case remanded for a new trial.

Our courts have consistently held that the right to counsel at trial is constitutionally protected, Charlett, supra. 422 A.2d at 662-3; Dale, supra, slip opinion at 3. The defendant may waive that right, but not without

... a penetrating and comprehensive inquiry of the defendant to ascertain whether he understands the nature of the charges against him, the permissible range of sentences to which he is exposed, the possible defenses to the charges and all the circumstances. Charlett, supra, 422 A.2d at 663 and cases and references cited therein.

The requirement of a colloquy establishing the knowing, competent waiver of counsel has been codified at Pa. R. Crim. P. 318(c), which states that "the jude shall ascertain from defendant, on the record, whether there is a knowing, intelligent and voluntary waiver of counsel." As Charlett points out, Id. at 663, the command of Pa. R. Crim. P. 318(c) is mandatory. The court below did not fulfill this requirement.

The record below cannot support the majority's view that the public defender was indeed acting as counsel, as is abundantly illustrated by the quotations included supra, in this dissent. Such efforts as defendant did make in his own behalf were acknowledged as inadequate at the time by the court and the appointed counsel. If defendant is not accorded his relief now, he can certainly file a convincing request under the Post Conviction Hearing Act, claiming ineffective assistance of counsel. Refusing a new trial on this appeal is, therefore, not only unconstitutional but an exercise in futility.

*fn1 18 Pa. C.S.A. 3701

*fn2 18 Pa. C.S.A. 3502

*fn3 18 Pa. C.S.A. 2902

*fn4 18 Pa. C.S.A. 2901

*fn5 18 Pa. C.S.A. 903

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