The opinion of the court was delivered by: Arthur E. Grim, S.J., Special Master
FIRST INTERIM REPORT AND RECOMMENDATIONS OF THE SPECIAL MASTER TO: THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
The undersigned Special Master respectfully submits this First Interim Report and Recommendations, pursuant to the authority and directives set forth in the Court's Order dated February 11, 2009.
1. Rule 151 of the Pennsylvania Rules of Juvenile Court Procedure ("Assignment of Counsel") states the following in subsection A:
A. General. If counsel does not enter an appearance for the juvenile, the court shall inform the juvenile of the right to counsel prior to any proceeding. In any case, the court shall assign counsel for the juvenile if the juvenile is without financial resources or otherwise unable to employ counsel.
2. Rule 152 of the Pennsylvania Rules of Juvenile Court Procedure ("Waiver of Counsel") provides as follows in subsection A:
A. Waiver requirements. A juvenile may not waive the right to counsel unless:
(1) the waiver is knowingly, intelligently, and voluntarily made; and
(2) the court conducts a colloquy with the juvenile on the record.
3. The Pennsylvania Rules of Juvenile Court Procedure, including Rules 151 and 152, were adopted April 1, 2005 and became effective October 1, 2005.
4. Long before the adoption of the Pennsylvania Rules of Juvenile Court Procedure, both the United States Supreme Court and the Pennsylvania Legislature took action ensuring that a juvenile has a right to counsel in juvenile delinquency proceedings, and if the juvenile is unable to afford counsel, counsel will be provided for him or her. In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 1451 (1967); 42 Pa. C.S. § 6337 (effective June 27, 1978).
5. Also long before the adoption of the Pennsylvania Rules of Juvenile Court Procedure, your Honorable Court stated the following concerning the appropriate inquiry which must occur before a criminal defendant will be deemed to have waived his or her constitutional right to counsel:
"While an accused may waive his constitutional right, such a waiver must be the 'free and unconstrained choice of its maker' [citation omitted] and also must be made knowingly and intelligently [citation omitted]. To be a knowing and intelligent waiver defendant must be aware of both the right and of the risks of forfeiting that right. [Citation omitted]."
Furthermore, the presumption must always be against the waiver of a constitutional right. Nor can waiver be presumed where the record is silent. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.
Commonwealth v. Monica, 528 Pa. 266, 273, 597 A.2d 600, 603 (1991).
6. Your Honorable Court has indicated on prior occasions that when a criminal defendant proceeds to trial pro se and when the trial court fails to conduct a thorough, on-the-record colloquy to determine if the waiver of his/her constitutional right to counsel is knowingly and intelligently made, the proper remedy is a new trial. Commonwealth v. Brazil, 549 Pa. 321, 701 A.2d 216 (1997); Commonwealth v. Monica, 528 Pa. 266, 597 A.2d 600 (1991).
7. Your Honorable Court has also stated that "the appearance of [judicial] impropriety is sufficient justification for the grant of new proceedings before another judge." In the Interest of McFall, 533 Pa. 24, ___, 617 A.2d 707, 712 (1992).
8. On February 12, 2009, Judge Ciavarella (and Judge Conahan) entered guilty pleas in the U.S. District Court for the Middle District of Pennsylvania in United States v. Michael T. Conahan and Mark A. Ciavarella, Jr., Docket No. 3:09-CR-028. The Criminal Information in that case alleges, in part, the following:
5. Between approximately June of 2000 and January 1, 2007, the defendants Michael T. Conahan and Mark A. Ciavarella, Jr. abused their positions and violated the fiduciary duty they owed to the citizens of the Commonwealth of Pennsylvania and to the Judiciary of the Commonwealth of Pennsylvania by secretly deriving more than $2,600,000 in income, in addition to the compensation to which they were lawfully entitled, in exchange for official actions and anticipated official actions. The actions from which they derived improper income included, but were not limited ...