The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Presently before the Court is the amended petition for a writ of habeas corpus filed by Robert Allen Bettelli. [ECF No. 14]. He is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Venango County in June of 2005. He raises two grounds for relief, which he has set forth more fully in his Memorandum of Law In Support of Amended Habeas Corpus. [ECF No. 15]. He claims that he was denied his Sixth Amendment right to assistance of counsel at his trial and that there was insufficient evidence to support the jury's verdicts of guilt.
For the reasons set forth below, Bettelli's amended petition is denied and a certificate of appealability is denied.
A. Relevant Background*fn2
In his amended petition for a writ of habeas corpus, Bettelli is seeking federal habeas relief from a judgment of sentence imposed on June 14, 2005, by the Court of Common Pleas of Venango County following his convictions of rape, rape of a child, two counts of involuntary deviate sexual intercourse, aggravated indecent assault, and indecent assault. Bettelli's convictions arose from his sexual abuse of his former girlfriend's minor daughter.
The criminal complaint was filed in Bettelli's case in February of 2004. He hired private counsel, Michael Hadley, Esquire, to represent him. Pending his trial, Bettelli was released on bond and he continued employment as an over-the-road truck driver.
Bettelli's trial was originally scheduled for August of 2004. (See Public Defender's Office of Venango Cnty. v. Venango Cnty. Court of Common Pleas, No. 16 WM 2005, slip op. at 2 (CP Venango, Apr. 15, 2005) (White, J.)). On August 20, 2004, Hadley filed a motion to withdraw as defense counsel. The Honorable H. William White conducted a hearing with Bettelli and Hadley both present.*fn3
Following the hearing, Judge White issued the following Order of Court:
AND NOW, this 20th day of August, 2004, the Court has conducted a conference in open court with the Defendant and his counsel. The Court tried to work out a payment plan with the Defendant so that he would pay his counsel a sufficient amount to obligate counsel in this case; however, the Court was not able to get the Defendant to commit to any rational plan to pay his counsel what counsel clearly is entitled to represent him in this proceeding.
Therefore, counsel's Motion to Withdraw is granted. The Clerk will note that Michael Hadley is discharged as counsel for the Defendant in this proceeding. Defendant is now pro se. (8/20/04 Order of Court (emphasis added)). Bettelli's trial was continued to the October trial term.
Another conference was held on September 24, 2004, so that an on-the-record colloquy could be conducted regarding Bettelli's right to represent himself. (9/24/04 Hr'g Tr. at 1). At the time of the events in question, the Pennsylvania Rules of Criminal Procedure provided:
Rule 121. Waiver of Counsel
(A) Generally. The defendant may waive the right to be represented by counsel. - - -
(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.
Pa.R.Crim.P. 121(C) (2001).*fn4
The Honorable Oliver J. Lobaugh presided over the September 24th hearing, and he conducted the colloquy required by Pa.R.Crim.P. 121. At the beginning of the hearing, he asked Bettelli if he wanted to proceed pro se:
The Court: [Do] [y]ou want to represent yourself?
Bettelli: At the moment sir, yes. I am still trying to save money up to get another attorney.
The Court: So you do want to hire an attorney eventually?
Bettelli: Yes, sir. But at the time if the process and everything here allows me to. The Court: This case is scheduled for trial in October? [Prosecutor]: At this point, Your Honor, we haven't done a call of the list yet, but we were planning on putting it on standby list for October. It's my understanding that the defendant is going to be requesting a continuance to the November trial term.
The Court: Mr. Bettelli, raise your right hand, please. Do you understand that you have an absolute right to be represented by an attorney in this case at all stages of the proceedings and that is by an attorney who is experienced in the handling of criminal cases?
The Court: Do you understand that if you fail to retain your own lawyer after you have been given ample opportunity to retain counsel that the Court will consider this a waiver on your part not to retain private legal counsel and an election by you to represent yourself?
The Court: Do you understand that if you do not retain counsel to represent you you may be required to proceed to trial in this case without a lawyer and that you will have to represent yourself prior to, during, and after such trial? Bettelli: Yes.. (9/24/04 Hr'g Tr. at 2-4).
Judge Lobaugh next engaged in an extensive colloquy with Bettelli in which the charges against him and the potential sentences he faced were explained, as were the consequences of proceeding pro se. (Id. at 4-20). Bettelli acknowledged that he could read, write, and understand the English language, had never been in a mental institution, was not suffering from any physical or mental problem that would affect his understanding of the proceedings, and had not taken any drugs or alcohol in the previous two days. Judge Lobaugh explained to him in detail the charges against him. Bettelli acknowledged that he understood. Judge Lobaugh described the meaning of reasonable doubt and the possible sentences he would face if convicted. Bettelli indicated that he understood. (Id. at 4-16).
At the conclusion of the colloquy, Judge Lobaugh asked Bettelli why he "basically fired Mr. Hadley." (Id. at 20):
Bettelli: . I tried to when I did go to the court last time to release him from being my attorney. The judge looked at me and thought it was a joke that I would rather pay my payment on a truck than pay my attorney. Well, I drive six hours to work round trip. Without a vehicle, I have no job. I can understand where he is coming from as well as the situation I am in.
The Court: And I explained to you earlier that you are looking at 67 and a half to 135 years and fines up to $135,000. I can understand why [Judge White] would question why you didn't want to have an attorney represent you.
Bettelli: If I don't pay on my truck, I lose it and I lose my job and I can't afford an attorney. I tried to work that out with Mr. Hadley.
The Court: Like making payments?
Bettelli: Yes. And he didn't want that. So I couldn't do anything else.
The Court: So you do plan on talking to another attorney about --
Bettelli: Yes. When I come up with an amount of money I'll -- yes, sir. Right at the moment -- when I come up with the amount of money he wants. I figure $1500. I need to come up with that and get an attorney and talk to him. That's what I'm trying to do before anything goes through.
I do have a transcript that Mr. Hadley gave me. I think that's his transcript, you know, of everything he went through and this and that. And I have one of mine which is totally different than what he has. You know, some of the stuff is the same things, but he went a little further. And if I have him [the new attorney] I can give him the folder and let him look through it.
The Court: You don't qualify for the public defender's services?
Bettelli: I was told by the other judge that I make too much money; that I wouldn't qualify. But I have -- nobody said that I couldn't or can't.
The Court: How much money do you make?
Bettelli: Eleven dollars an hour, and sometimes I don't get over 40 hours. Like I said, I got 20 hours last week. That's $220 take home.
The Court: You can attempt to apply for the public defender.
Bettelli: Well, I was told that I couldn't because I made too much money.
The Court: You can apply.
Bettelli: I was always told at the last hearing that I couldn't qualify because I make too much money, so I didn't further the issue.
The Court: Judge White is probably right on that, but I'm saying you can still file and application if your circumstances have changed. (Id. at 23-26).
Judge Lobaugh then advised Bettelli that "if you are going to get an attorney, you need to get one now." (Id. at 26). He continued:
The Court: I believe you have explained the circumstance of why you do not have an attorney at this point. You did have Mr. Hadley. There was a problem with money and a dispute regarding the work he had done and the work that he did not do, and basically you agreed to fire him or agreed to allow him to withdraw.
The Court: Are you certain that you understand that if you do not retain an attorney you will be required to proceed in this case representing yourself and that when your case is called to trial you will be required to defend yourself at trial without assistance of counsel or with only standby counsel to assist you?
The Court: I guess at this point you really need to make a serious effort to obtain counsel if you want counsel. (Id. at 28-30).
At the conclusion of the hearing, Judge Lobaugh issued an oral order in which he stated that Bettelli's trial was continued to the November 2004 trial term and that "[t]he Court has conducted a waiver of legal counsel colloquy with the defendant, and the Court is satisfied that the defendant understands his legal position regarding being required ...