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09/22/97 COMMONWEALTH PENNSYLVANIA v. BRIAN BRAZIL

September 22, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
BRIAN BRAZIL, APPELLANT.



Appeal from the Order of the Superior Court, entered July 25, 1996 at No. 3637PHL95 affirming the Judgment of Sentence entered September 15, 1995 in the Court of Common Pleas, Montgomery County, Criminal Division at A4308-94.

JUDGES BELOW: CCP - Hon. Lawrence A. Brown / Superior - CAVANAUGH, JOHNSON, MONTEMURO, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Nigro. Mr. Justice Castille files a Dissenting opinion in which Madame Justice Newman joins.

The opinion of the court was delivered by: Nigro

JUSTICE NIGRO

DECIDED: September 22, 1997

Appellant Brian Brazil appeals from the Superior Court's affirmance of his conviction for criminal conspiracy, assault by a prisoner, and simple assault. For the reasons presented herein, we reverse.

Appellant Brazil was an inmate at the State Correctional Institute at Graterford. On the evening of July 17, 1994, all the inmates were told to return to their cells for a cell check. Appellant suspected that the guards were going to search the cell he shared with co-defendant Anthony Allen, so he told Allen that they had to be ready when the guards came. Appellant then put six "D" batteries into a pillow case and handed it to Allen. When the guards arrived at the cell, they informed Appellant that they were simply conducting a routine linen check. Appellant then left the cell peacefully, but Allen refused to cooperate. He struck a guard two or three times on the head with the filled pillow case.

Appellant and Allen were charged with conspiracy, assault by a prisoner, aggravated assault, and simple assault. Appellant was represented by a public defender at two preliminary hearings. At trial, however, he stated that he did not want to be represented by a public defender. In response, and without conducting a waiver of counsel colloquy, the trial Judge placed Appellant's defender on "standby" status, and Appellant represented himself. *fn1

After trial, the jury convicted Appellant on the conspiracy, assault by a prisoner, and simple assault charges. *fn2 No post-trial motions were filed. On appeal, the Superior Court affirmed. This Court then granted allocatur to determine whether the Superior Court erred in holding that the totality of the circumstances regarding Appellant's representation at trial obviated the requirement of a waiver of counsel colloquy. Upon due consideration, we conclude that the Superior Court did err and we therefore reverse.

At the outset of trial, immediately after the Judge entered the courtroom, the following exchange occurred.

THE COURT: Are they going to be represented or not?

DEFENDANT BRAZIL: I don't want to be represented by no attorney from the Public Defender's Office.

CO-DEFENDANT ALLEN: Same thing.

THE COURT: You are dismissing your ...


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