October 15, 1982
COMMONWEALTH OF PENNSYLVANIA
GEORGE ALLEN, APPELLANT
No. 1955 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northampton County, Pennsylvania, Criminal Division at Nos. 1960 and 1963, 1979.
Before Wieand, Cirillo and Popovich, JJ. Wieand, J. files a Dissenting Opinion.
Per Curiam: Judgment of sentence affirmed.
WIEAND, J. files a Dissenting Opinion.
I respectfully dissent. The record demonstrates that appellant did not knowingly and intelligently waive the right to be represented by effective counsel and was, in fact, deprived improperly of that right. Therefore, I would reverse and remand for a new trial.
Appellant's appointed trial counsel testified at a post-verdict, evidentiary hearing that his representation of George Allen, the appellant, had come to an end on February 5, 1980, six days prior to trial. the reason for termination of the attorney-client relationship, he said, had been a disagreement regarding trial strategy. Also on February 5, counsel had written to Allen to advise him that, because he no longer represented Allen, counsel did not intend to prepare for trial. The record is clear, however, that counsel did not request leave of court to withdraw his appearance on appellant's behalf. He also did not advise Allen in the matter of obtaining other representation. On February 11, 1980, counsel appeared at the time set for trial and told the court that he was not prepared for trial and did not intend to represent Allen during trial. The following occurred:
MR. PASLINE: Your Honor, I was appointed by the Public Defender's Office to represent Mr. Allen. I represented him up until February the 5th, 1980, at approximately 2:15 p.m. I went over to discuss this matter with Mr. Allen, his defense in this case, and he indicated to me that he did not wish me to represent him any further.
I sent him a letter of the same date -- or of the same date which he received the 6th, indicating that I would not do anything further in the trial to prepare for trial. That I would make myself available to him if he so wished.
In addition, our investigator also sent him a letter, indicating that he had served four people. One person was not able to be served and the other person had a stroke and could not attend even if we did serve her. I am trying to put on the record today that information, that if Mr. Allen, during the course of he trial, decides that he does not wish to represent himself, that I am not prepared for trial, nor have I prepared points for charge, nor have I done the necessary work that I would normally do if I was going to try the case.
So I am saying that if he wants me to represent him, that I am not prepared to go at this particular moment.
The second thing is that I would like Mr. Allen, if he so wishes to represent himself, to determine whether he wants me to sit with him. I believe that I will have to be in the courtroom, but if he does not want me to sit at counsel table, I will sit in the general audience and I will be available for him for consultation if he so wishes. I think I have to sit in the courtroom if he wants to ask me questions or ask for counsel or advice. I believe that I can give it.
THE COURT: I think I have a little power left in that direction. I think I could excuse you. I don't think he has all the power over you that --
MR. PASLINE: That's correct, your Honor, but I would remain in the courtroom during the trial to be available to Mr. Allen if he so wished or if you so --
THE COURT: All right. Do you have anything you wish to say, Mr. Allen?
THE DEFENDANT: No, I don't.
MR. PASLINE: You do not want me to represent you?
THE DEFENDANT: No. I don't want you.
MR. PASLINE: And you are going to handle the case --
THE DEFENDANT: -- myself.
MR. PASLINE: Do you want me to remain in the courtroom?
THE DEFENDANT: It doesn't matter to me whether you stay or not.
MR. PEPPER: I assume by Mr. Allen's answers that you do not choose to have Mr. Pasline sit at counsel table with you.
THE DEFENDANT: No.
MR. PEPPER: I understand.
MR. OBRECHT: Your Honor, the charges are rather extensive against Mr. Allen. There are seven different counts.
THE DEFENDANT: I'm aware of the charges. I'm ready to face them. That's what I'm here for.
No further colloquy was conducted by the trial court or by counsel. Without counsel's participation in the trial, appellant was compelled to conduct his own defense. He called his counsel as a defense witness, and counsel testified, on cross-examination, that appellant had been an uncooperative client. Later in the trial, the same counsel undertook, with appellant's consent, to deliver closing argument to the jury. After appellant had been convicted, counsel also filed post-verdict motions before being succeeded by present counsel.
It is beyond peradventure of a doubt that an accused may waive his right to counsel if the waiver is made knowingly, intelligently and voluntarily. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 314 (1978); Commonwealth v. Tyler, 468 Pa. 193, 198, 360 A.2d 617, 620 (1976); Commonwealth v. Dale, 286 Pa. Super. 308, 311, 428 A.2d 1006, 1007 (1981); Commonwealth v. Hauser, 265 Pa. Super. 135, 141, 401 A.2d 837, 840 (1979). However, "[t]o be valid such a waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances...." Commonwealth v. Hauser, supra at 141, 401 A.2d at 840 quoting Von Moltke v. Gilles, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). (Emphasis supplied.) Accord: Commonwealth v. Dale, supra at 311, 428 A.2d at 1007; Commonwealth v. Andrews, 282 Pa. Super. 115, 126, 422 A.2d 855, 860 (1980); Commonwealth v. Fowler, 271 Pa. Super. 138, 142, 412 A.2d 614, 616 (1979). See also: Commonwealth v. Tyler, supra at 199, 360 A.2d at 620; Commonwealth v. Charlett, 282 Pa. Super. 28, 422 A.2d 659 (1980); Commonwealth v. Grant, 229 Pa. Super. 419, 323 A.2d 354 (1974). See also: Pa.R.Crim.P. 318 (c).*fn1
A defendant has no absolute right to a particular counsel and will not be permitted to use his right to counsel unreasonably to clog the machinery of justice and delay trial. In order to warrant a substitution of counsel immediately prior to trial, a defendant must show good cause in the nature of a conflict of interest or an irreconcilable conflict with counsel. See: United States v. Melty, 674 F.2d 185, 188 (3rd Cir. 1982); McKee v. Harris, 649 F.2d 927, 934 (2d Cir. 1981), cert. denied, U.S. , 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982). If the reasons are not made known to the court, however, the court has a duty to inquire to determine whether good cause exists. United States v. Welty, supar; Brown v. United States, 264 F.2d 363, 369 (D.C. Cir. 1959), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959). (Burger, J. concurring in part.) Moreover and in any event, a court is not empowered "to require a defendant to proceed without counsel at a critical stage of a criminal prosecution without first ascertaining that the defendant is aware of the dangers of pro se representation and then affording him the opportunity to reconsider his decision to proceed pro se." Commonwealth v. Fowler, supra at 143 n.6, 412 A.2d at 616 n.6.
In Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), the Supreme Court cautioned:
[w]hen an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forego those relinquished benefits.... Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."
The fact that an accused may tell the court that he desires to waive the right to counsel and represent himself does not end the trial judge's responsibility. "'A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances'... and only after bringing home to the defendant the perils he faces in dispensing with legal representation. After undertaking such an inquiry, 'whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.'" United States v. Welty, supra at 189, quoting from Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
In the instant case, the trial court made no inquiry concerning the reasons for appellant's dissatisfaction with counsel. Similarly, neither the trial court nor counsel made any attempt to determine the intelligent nature of appellant's waiver of the right to be represented by counsel or his understanding of the dangers and disadvantages of self-representation. If inquiry had been made concerning the reasons for appellant's dissatisfaction with counsel, the court could better have exercised its discretion in determining whether a substitution of counsel should have been allowed. If a more searching inquiry had been made regarding appellant's awareness of the dangers inherent in representating himself, he may have determined before it became necessary to formulate a closing argument that he wished to proceed with counsel previously appointed. Here, however, no inquiry was made.
Not only did the trial court fail to make the necessary inquiries, but counsel also made no effort to instruct appellant regarding his right to substituted counsel and/or the perils of pro se representation. This is confirmed not only by the recorded pre-trial colloquy but also by counsel's testimony at the post-verdict evidentiary hearing.
Finally, it is questionable whether appellant really had a voluntary choice to make. In the absence of a searching inquiry by the trial court, appellant was forced to choose between counsel who, by his own admission, was unprepared for trial or pro se representation. Where the only alternative to pr se representation is an unprepared, appointed counsel, the accused has been deprived of his constitutional right to the assistance of effective counsel.
Appellant's decision to proceed without counsel under the circumstances of this case did not constitute a knowing, intelligent and voluntary waiver of the right to counsel. This our decisions have uniformly held: See and compare: Commonwealth v. Tyler, supra; Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971); Commonwealth v. Dale, supra; Commonwealth v. Charlett, supra; Commonwealth v. Fowler, supra; Commonwealth v. Hauser, supra; Commonwealth v. Allen, 255 Pa. Super. 259, 386 A.2d 607 (1978); Commonwealth v. Grant, supra; Commonwealth v. Stanley, 214 Pa. Super. 118, 251 A.2d 681 (1969). The representation which appellant did receive, moreover, was clearly ineffective. Accordingly, I would reverse the judgment of sentence and remand for a new trial.*fn2
*fn1 Pa.R.Crim.P. 318 provides:
(c) Proceedings Before a Judge. When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary and intelligent waiver of counsel.
Whether it be the trial court or appellant's trial counsel which must shoulder responsibility for depriving appellant of representation by effective counsel, it seems clear to this writer that the issue has been preserved and requires consideration.