Com. v. Ellis

• Decision Date: 27 May 1993
• Citation: 626 A.2d 1137,534 Pa. 176
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James ELLIS, Appellant.
• Court: Pennsylvania Supreme Court

Page 1137

626 A.2d 1137

534 Pa. 176

COMMONWEALTH of Pennsylvania, Appellee, v. James ELLIS, Appellant.

Supreme Court of Pennsylvania.

Submitted Sept. 21, 1992.

Decided May 27, 1993.

[534 Pa. 177] William C. Kaczynski (Court-appointed), Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for appellee.

Catherine Marshall, Chief-Appeals Unit, George S. Leone, Asst. Dist. Atty., Philadelphia, for Pennsylvania Dist. Attys. Ass'n.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

The sole issue raised on this appeal is whether Superior Court is required to review pro se briefs filed by represented appellants.

Appellant James Ellis was convicted by jury of robbery and driving under the influence of alcohol and was sentenced to an aggregate term of five to ten years.

A number of issues were raised on appeal to Superior Court, and although Ellis was represented by counsel who filed an appellate brief before Superior Court, Ellis attempted to file his own brief as well. Superior Court declined to review his brief and affirmed the conviction. Thereafter, Ellis petitioned this court for allowance of appeal, and we granted allocatur limited to the issue of whether it was error for Superior Court to refuse to review Ellis's pro se brief.

Judge Ford Elliot, writing for an en banc panel of Superior Court, first reviewed the statutory and constitutional status of pro se representation. Superior Court's 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).

Commonwealth v. Ellis, 398 Pa.Super. 538, 543, 581 A.2d 595, 597 (1990).

Superior Court then noted that in Pennsylvania, there is a constitutional right of appeal pursuant to the Pennsylvania Constitution ¹ and the right to an attorney in a criminal case. ² Additionally, the United States Supreme Court has ruled that a defendant has the right to self-representation in a criminal proceeding, which he may exercise by a knowing and voluntary waiver of his right to counsel, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). See Pa. R.Crim.P. 318 ³; Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978).

Superior Court next pointed out that there is no right of self-representation together with counseled representation ("hybrid representation") at the trial level, Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), although standby counsel may be appointed to give the defendant legal advice, Pa.R.Crim.P. 318(d).

From this, Superior Court concluded that there is no statutory or constitutional requirement that a court must review a pro se appellate brief which is submitted by a counseled appellant. Moreover, Superior Court stated the following policy reasons against reviewing pro se briefs where appellant is represented by counsel: that permitting the pro se brief may involve a conflict between lawyer and client, and this conflict could undermine appellant's chance of success; that counsel is obligated to submit to the appellate court only those issues which he believes to possess merit; that under no other circumstances are counsel and client permitted to present opposing arguments to Superior Court, as may well happen if both are permitted to submit briefs; and finally, that reviewing pro se briefs of counseled appellants would lead to procedural confusion and delay in the appellate process because of the need for the court and the Commonwealth to review and evaluate additional pro se briefs.

For these reasons, Superior Court stated its holding as follows:

We will accept for filing pro se appellate briefs, but we will not review a pro se brief if a counseled brief has been filed, either before, simultaneously with, or after the pro se, due to the judicial confusion and delay that ensues. Because we refuse to play a timing game or that of a mind reader, trying to determine what the pro se really wants, we see no difference as to when the pro se brief is filed in relation to the counseled brief. If a pro se brief is filed in a counseled appeal, we direct the prothonotary to send the pro se brief on to counsel who is best able to determine in her [sic] professional judgment which of the pro se's issues should be presented for our review. Counsel may argue such pertinent issues in her [sic] brief to the court, or if the appellate brief has been filed, she [sic] may file a supplemental brief addressing those same issues. If the pro se brief alleges ineffectiveness of appellate counsel or an affirmative desire to be heard pro se, we direct counsel to petition this court to remand the case to the trial court so that it may conduct a full hearing in order to determine appellant's knowing and intelligent waiver of his right to appellate counsel, and of his desire to proceed pro se, or in the case of ineffectiveness, an appointment of new appellate counsel.

398 Pa.Super. at 550, 581 A.2d at 600-01. Accordingly, Superior Court declined to review appellant's pro se brief. For the reasons that follow, we affirm.

As to the constitutional right to hybrid representation, Superior Court was correct in its determination that there is no constitutional right to hybrid representation either at trial or on appeal. In Commonwealth v. Colson, 507 Pa. 440, 461, 490 A.2d 811, 821 (1985), this court stated:

Appellant's next argument is that the court wrongly denied him permission to act as co-counsel. He was represented by an attorney. A defendant has the constitutional right to proceed without counsel if the decision to do so is knowing and voluntary, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), accord, Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978). In Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1979), the court held that the same constitutional right does not apply to a defendant represented by an attorney who wishes to act as co-counsel and that the decision as to whether that is to be allowed is in the sound discretion of the trial court. We agree and see no basis for a finding of abuse of discretion in the instant case.

If there is no constitutional requirement to permit hybrid representation at trial, there is, a fortiori, no constitutional right to hybrid representation on appeal, for as the district attorney points out, it is the trial stage where a defendant's knowledge of the facts and his emotional arguments are most likely to be helpful, not the appellate stage, where legal arguments and literacy are most likely to be persuasive. In other words, if there is no justification for hybrid representation at trial, there is even less on appeal.

Since there is no constitutional right to hybrid representation, and since no statute mandates hybrid representation on appeal, we turn to policy considerations, pursuant to our duty, under Art. V. § 10 of the Pennsylvania Constitution to supervise the practice and procedure of all courts. ⁴ The first of those is Ellis's argument that it is more efficacious, ultimately, to review the pro se briefs than to deny review and be faced later with withdrawal of counsel and ineffectiveness claims. Appellant well describes the difficulties which may arise between the "jail-house lawyer" client and his attorney:

Every seasoned criminal lawyer has represented, on at least an annual basis, a "jail-house lawyer" who is absolutely convinced that a certain reported decision rendered by a [sic] obscure parish trial court in Louisiana is on all fours with his particular case, and that it unarguably holds the keys to his freedom. To expect such a client to hold his silence on this issue and citation of authority is often unrealistic, even after mutual trust between attorney and client has been established. This kind of client is even more prone to insist on self-expression to the Trial and Appellate Court where counsel is either a public defender or court-appointed, and where mutual trust has not yet developed. Under such circumstances, counsel's choice is to either file his or her brief for appellant citing preposterous and suspect authority so as to satisfy the client, or counsel may ignore the client's citations and arguments in the exercise of professional judgment and thereby risk being named as the culpable party in a frivolous post-conviction proceeding. Even the conscientious attorney will be hard pressed to risk a breach with his client over this issue and, under these circumstances, this court will be ultimately faced with a supplemental brief of the Anders variety containing the Louisiana citation. In either event, nothing will have been accomplished by ignoring the pro se brief, since the District Attorney will be required to respond to the supplemental brief and the Appellate Court will be required to address the pro se issue raised.

Appellant's Brief at 23-24. While we concur with appellant's description of the problem, we disagree with his conclusion. Tails should not wag dogs. Merely because an appellant believes that the irrelevant is relevant is no reason to turn the system on its head and solemnly contemplate the wisdom of a person...