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COMMONWEALTH PENNSYLVANIA v. JOHN A. DOOLEY (01/20/84)

submitted: January 20, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN A. DOOLEY, APPELLANT



No. 2727 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, No. 4025/1980.

COUNSEL

Robert W. Suter, Assistant Public Defender, Doylestown, for appellant.

Butler Buchanan, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Brosky, Wieand and Hester, JJ.

Author: Wieand

[ 332 Pa. Super. Page 230]

John Dooley waived the right to be represented by an attorney at trial and elected to represent himself. A jury found him guilty on three counts of robbery*fn1 and on one count of theft.*fn2 On direct appeal from the judgment of sentence, Dooley argues (1) that the verdicts were against the weight of the evidence; (2) that his waiver of the right to be represented by counsel at trial was not knowingly and intelligently made; (3) that a pre-trial lineup was unfairly prejudicial; (4) that the trial court erred in failing to declare a mistrial (a) when members of the jury observed him in handcuffs and (b) when a question by the prosecuting attorney suggested that he had a prior criminal record. There is no merit in these arguments; and, therefore, we will affirm the judgment of sentence.

"Whether the verdict is contrary to the weight of the evidence, thereby requiring a new trial, is generally a question within the sound discretion of the trial court. If the jury's findings are supported by the record, the trial court's denial of a motion for new trial will not be disturbed on appeal absent an abuse of discretion. The test is not whether the reviewing court would have decided the case the same way the fact finder did but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail." Commonwealth v. Sample, 321 Pa. Super. 457, 465, 468 A.2d 799, 803 (1983) (citations omitted) (emphasis deleted). See also: Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1230 (1984); Commonwealth v. Gonce, 320 Pa. Super. 19, 25, 466 A.2d 1039, 1042 (1983).

[ 332 Pa. Super. Page 231]

The evidence in this case showed that Dooley had gone into a Wa Wa store in Bensalem Township, Bucks County, around midnight on August 18, 1980. After purchasing cigarettes, Dooley ordered Steven Mowrey to give him the money in the register. When Mowrey asked for help from two other employees, Peggy Donahue and Roy Rettig, Dooley told them not to move and threatened to use a partially revealed gun. Mowrey thereupon gave Dooley the money that was in the register, following which Dooley left the store and disappeared. The trial court did not abuse its discretion in finding the verdicts consistent with the weight of the evidence.

Appellant has suggested that the verdicts were against the weight of the evidence because the jury found him guilty of committing three robberies even though he had committed only one theft.*fn3 This argument is not well made. See: Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1983). It would more properly be made as part of a contention that the evidence was insufficient to sustain the three separate findings of guilt.*fn4 At most, such an argument would entitle appellant to an arrest of judgment on two of the three robbery convictions; it would not entitle him to a new trial. In fact, even though three store clerks had been threatened, the trial court treated appellant's

[ 332 Pa. Super. Page 232]

    conduct as one criminal act and imposed only one sentence. Cf. Commonwealth v. Phillips, 215 Pa. Super. 5, 257 A.2d 81 (1969); Commonwealth v. Bitler, 133 Pa. Super. 268, 2 A.2d 493 (1938).

The right to be represented by counsel at trial is constitutionally protected. Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973). This right, however, may be waived. In Commonwealth v. Charlett, 282 Pa. Super. 28, 422 A.2d 659 (1980), this Court said:

While this right may be waived, such waiver must be made knowingly, intelligently and voluntarily by the accused. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Commonwealth v. Hauser, 265 Pa. Super. 135, 401 A.2d 837 (1979). This principle has found expression in Pa.R.Crim.P. 318(c) (effective [January] 1, 1978):

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.

The judge must conduct 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. Comment to Pa.R.Crim.P. 318; Commonwealth v. Tyler, supra; Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); Commonwealth v. Grant, 229 Pa. Super. 419, 323 A.2d 354 (1974).

Id., 282 Pa. Superior Ct. at 35-36, 422 A.2d at 663. See also: Commonwealth v. Baker, 318 Pa. Super. 19, 464 A.2d 496 (1983); Commonwealth v. Palmer, 315 Pa. Super. 601, 609,

[ 332 Pa. Super. Page 233462]

A.2d 755, 758 (1983); Commonwealth v. Andrews, 282 Pa. Super. 115, 127, 422 A.2d 855, 861 (1980).

In the instant case, the following colloquy took place:

"MR. DOOLEY: You have a real way with words, Buck. I am not going to continue to waste any more time. I am going to represent myself and Mr. Suter will advise me. I will appreciate having Mr. Suter as my backup counsel and I thank you very much; also you, Buck.

"THE COURT: Okay, now let's roll into the formal colloquy.

"Do you understand, John Dooley, that you have the right to be represented by counsel?

"MR. DOOLEY: Yes, Your Honor; I do.

"THE COURT: You could have free counsel approinted [sic] for you if ...


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