Com. v. Ellis

• Decision Date: 30 March 1990
• Parties: COMMONWEALTH of Pennsylvania v. James ELLIS, Appellant.
• Court: Pennsylvania Superior Court

Page 595

581 A.2d 595

398 Pa.Super. 538

COMMONWEALTH of Pennsylvania v. James ELLIS, Appellant.

Superior Court of Pennsylvania.

Argued March 30, 1990.

Filed Oct. 9, 1990.

William C. Kaczynski, Pittsburgh, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before CIRILLO, President Judge, and WIEAND, McEWEN, MONTEMURO, BECK, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

FORD ELLIOTT, Judge:

This is a direct appeal from a judgment of sentence entered on December 7, 1987, in the Court of Common Pleas of Allegheny County. On appeal, appellant alleges numerous trial court errors as well as claims of ineffective assistance of counsel. Following an extensive review of the record, the parties' arguments, and the applicable law, we affirm the judgment of sentence.

Appellant was arrested on November 13, 1985, and charged with one count of robbery and one count of driving while under the influence of alcohol. On September 4, 1986, appellant appeared before the Honorable Walter R. Little for a suppression hearing and an inconclusive plea. On January 6, 1987, appellant proceeded to a jury trial before the Honorable Raymond A. Novak. Appellant was convicted of the robbery charge on January 8, 1987. Post-trial motions were filed and denied. Appellant was sentenced to a term of imprisonment of five to ten years on December 7, 1987. This timely appeal followed.

The facts of this case are summarized as follows. On November 13, 1985, Mary Killer-Walker tended bar in her husband's after hours club into the early morning hours. Walker closed the bar around 3:00 a.m. and took the bar's receipts, approximately $300.00 in a Mellon Bank bag, home with her. While driving home Walker noticed a car following her. As she pulled into her driveway, the other car pulled in also, thus blocking her car. Walker leaned on her horn as a man approached her car and put what she thought was a shotgun to her window. As he yelled "give it up," Walker jumped out of her car on the passenger side and ran to her neighbor's house for help. The man took Walker's purse and left in an old, rusted burgundy Chevy. Soon thereafter, Walker described her assailant to the police as an old black man with gray hair and glasses wearing blue jeans. Walker told police that she knew that this man was the same man with whom she had had an altercation earlier that morning in the club.

Pursuant to a tip, police drove to the Uptown section of Pittsburgh with Walker's description of her assailant. While talking to another officer, the police spotted a burgundy Chevy parked at a nearby gas station. Police observed appellant chasing two youths down the street. An officer walked over to the burgundy Chevy and looked inside the car through the open door. He noticed a large purse in the lighted interior of the car with a bank bag sticking out of it. As the officer looked inside the purse, he found Walker's identification in it. Appellant approached the police claiming that the two youths had robbed him. The police asked appellant if the Chevy was his and as he answered affirmatively, he was placed under arrest. Later, Walker identified appellant as her assailant and the purse as hers.

Before addressing the substantive issues presented on appeal, we must decide an initial procedural question: whether and under what circumstances this court will consider pro se briefs in criminal cases where appellant is represented by counsel on appeal. Presently, appointed counsel for appellant has filed a brief which raises seven issues for this court's review and appellant has filed a separate brief presenting four additional claims. Upon careful scrutiny, the basis for relief presented in both briefs is not dissimilar. This court's practiced pro se policy is as follows:

All pro se petitions, motions, and briefs shall be filed in this Court and docketed by the Prothonotary. If the litigant himself or herself files a petition, motion, or brief and is represented by counsel, copies of the said document filed shall be forwarded to his or her counsel of record.

20 Pa.Bull. 3147 (1990) (to be codified at 210 Pa.Code Ch. 65 § 65.24).

Initially, any resolution of this procedural issue necessarily must involve an examination of the basic constitutional right of appeal and right to counsel. Historically, the United States Supreme Court held that the right to appeal from a criminal conviction was not absolute absent a state constitutional or statutory provision allowing such review. See McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). Although the Supreme Court has broadened and defined its role of protecting constitutional guarantees over the past century by choosing to review certain state criminal convictions, the Pennsylvania Constitution always has guaranteed defendants the right of appeal. Pa. Const. art. 5 § 9 states:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

In conjunction with the right of appeal, the Pennsylvania Constitution affords the defendant in a criminal prosecution the right to an attorney. Pa. Const. art. 1 § 9. Moreover, it is well recognized that the United States Constitution provides the same right. U.S.C. Const. Amend. 6. However, growing out of this right, the United States Supreme Court has ruled that an individual has the right to self-representation in a state criminal trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant may exercise this right if he renders an express knowing and intelligent waiver of his right to counsel. Faretta v. California, supra. In compliance with the Supreme Court's ruling, the Pennsylvania Rules of Criminal Procedure have embodied the policy and procedure of self-representation at the trial court level. Pa.R.Crim.P. 318; see Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978).

At the appellate level, we have permitted, and at times encouraged, a criminal defendant to prosecute his own case. See Commonwealth v. Maple, 385 Pa.Super. 14, 559 A.2d 953 (1989); Commonwealth v. McDowell, 220 Pa.Super. 449, 289 A.2d 245 (1972). However, the more pertinent question concerns the right of self-representation together with counseled representation at the appellate level. This circumstance is better known as "hybrid" representation. In Commonwealth v. Williams, 270 Pa.Super. 27, 35, 410 A.2d 880, 883 (1979), we held that "there is no right, deriving from either the United States Constitution or [the] Constitution of Pennsylvania, for a criminal defendant to proceed as co-counsel in his own defense." See Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985) cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); cf. Pa.R.Crim.P. 318(d) (upon acceptance of defendant's waiver of counsel, standby counsel may be appointed to give the defendant consultation and advice); Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976); Hall v. Dorsey, 534 F.Supp. 507, 509 (E.D.Pa.1982) ("the accused has the right to be heard by himself; the accused has the right to be heard by his counsel; but not both.").

As this "hybrid" representation per se is not tolerated at the common pleas level, we see no distinction, and today would not choose to define one, which would allow for a different policy at the appellate level. Generally, when confronted with this issue in the past this court would not consider the separate briefs of counsel and appellant, but remanded the matter to the trial court to conduct a hearing in order for appellant to choose whether he wished to represent himself or remain counseled on appeal. Commonwealth v. Kibler, 294 Pa.Super. 30, 439 A.2d 734 (1982); see Commonwealth v. Knapp, 374 Pa.Super. 160, 542 A.2d 546 (1988); Commonwealth v. Henry, 341 Pa.Super. 146, 491 A.2d 193 (1985); Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983).

Clearly, there are obvious problems which surface when an appellant files a pro se brief and counsel has filed one as well. First of all, at the heart of the right to counsel on appeal is appellant's entitlement to a professional evaluation of his case. As an officer of the court, appellant's counsel is required to present arguments to the appellate tribunal which she believes possess merit. Smith v. Commonwealth of Pennsylvania Board of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990). While fulfilling her duties as an officer of the court, counsel also must meet her obligation of fidelity to her client. In doing so, counsel must present issues which have been preserved properly or perhaps be prepared to argue the viability of issues that have not been preserved due to prior counsel's ineffectiveness. If counsel is not afforded discretion as to which issues to present to the appellate court, then the attorney-client relationship is prejudiced. For example, counsel and the pro se could be arguing different issues to the appellate court. Thus, counsel and/or the pro se could be undermining appellant's success for the grant of appellate relief by asking this court to referee their opposing points. Moreover, counsel's defense strategy and trial tactics may prove to be fruitless if appellant files a pro se brief alleging appellate counsel's ineffectiveness either at trial or on appeal.

Further, under no other circumstances do we allow counsel and her client to present opposing defense arguments to this court. Even in the circumstance of permitting counsel to withdraw from her client's case, we do not allow counsel to "sandbag" her client. A proper Anders brief requesting withdrawal requires counsel to petition this court and state that after making a conscientious...