No. 67 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Dauphin County, at Nos. 717, 717A, 717B, and 717C, 1979.
James H. Rowland Jr., Harrisburg, for appellant.
Marion E. MacIntyre, First Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, and Wieand, and Lipez, JJ. Wieand, J., files a dissenting opinion.
[ 303 Pa. Super. Page 162]
Appellant, Leon J. Brobst, takes this appeal from his conviction for failure to pay Pennsylvania State Income Taxes for the years 1974, 1975, 1976 and 1977. Appellant argues, inter alia, that the trial court erred when it permitted appellant to proceed pro se without first conducting a thorough on-the-record colloquy to determine whether the defendant knowingly and understandingly waived his right to assistance of counsel. We find this issue to have merit and we reverse.
Appellant is an independent businessman from Altoona, Pennsylvania trading under the names of Lee's Auto Body and Inland Commercial Divers and Consultants. Appellant
[ 303 Pa. Super. Page 163]
was indicted on four counts for failure to pay his state income taxes. At trial, appellant admitted that he did not pay taxes for the previously mentioned years but claimed he does not owe taxes because Congress repealed the gold standard in 1933.
Now on appeal appellant argues that the trial court did not adequately determine whether appellant knowingly and understandingly waived his right to assistance of counsel for trial. The record discloses that following his arrest, appellant filed a petition for a writ of habeas corpus because he could not make the $15,000.00 bail set for him. At the hearing on this petition, the court told appellant that if he could not afford an attorney then one would be appointed to represent him, but that if appellant could afford an attorney then appellant should "strongly consider" getting one to represent him and to raise his defenses. The court then released appellant on his own recognizance. Thereafter, appellant appeared in court for his arraignment. At that time the court again told appellant that if at any point he could not afford counsel, then counsel would be appointed for him without charge. Appellant was also told that appearing for trial without counsel would not be, in and of itself, grounds for a continuance. Nonetheless, appellant appeared for his trial on October 17, 1979 without counsel, whereupon the following colloquy was conducted by the court.
THE COURT: Are you going to represent yourself, sir?
THE COURT: All right. Let me ask you, who are the men with you ...