Com. v. McDonough

• Decision Date: 18 December 2002
• Citation: 812 A.2d 504,571 Pa. 232
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Frank McDONOUGH, Appellant.
• Court: Pennsylvania Supreme Court

812 A.2d 504

571 Pa. 232

COMMONWEALTH of Pennsylvania, Appellee, v. Frank McDONOUGH, Appellant.

Supreme Court of Pennsylvania.

Argued September 10, 2002.

Decided December 18, 2002.

Candace Cain, Pittsburgh, for Frank McDonough.

Michael Wayne Streily, Kevin Francis McCarthy, Pittsburgh, for Commonwealth of Pennsylvania.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION

Justice NIGRO.

Appellant Frank McDonough appeals from the order of the Superior Court affirming his judgment of sentence for first-degree murder. For the reasons that follow, we affirm.

On April 3, 1992, Robert Terry Gales was shot to death while sitting inside a car outside Appellant's home. Several witnesses placed Appellant at the scene of the shooting, and Appellant's former girlfriend informed police that Appellant had admitted to her that he shot Mr. Gales because Mr. Gales had broken into his truck. On May 27, 1997, Appellant was charged with Mr. Gale's murder.

At his pre-trial conference, Appellant requested the trial court's permission to waive his right to counsel. Appellant, who was charged with unrelated homicides in New Jersey, complained to the court that he was dissatisfied with the representation he had received in New Jersey and stated that he wanted to exercise complete control over his defense on the instant charges. After the trial judge questioned Appellant further about his motives for waiving his right to counsel and explained the ramifications of proceeding without counsel, the prosecutor conducted a formal waiver colloquy in accordance with Rule 121 of the Pennsylvania Rules of Criminal Procedure. The judge accepted Appellant's waiver of his right to counsel and appointed standby counsel.

A jury convicted Appellant of first-degree murder. After a penalty hearing, Appellant was sentenced to life imprisonment without parole. Appellant appealed to the Superior Court, and the Superior Court affirmed Appellant's judgment of sentence. We subsequently granted allocatur to consider whether a defendant may validly waive his right to counsel if someone other than the trial judge conducts the waiver colloquy. For the following reasons, we hold that he may.

The right to counsel in a criminal proceeding is a fundamental right guaranteed by the Sixth Amendment of the United States Constitution and Article One, Section Nine of the Pennsylvania Constitution. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984). A defendant may, however, waive this fundamental right and proceed with his defense pro se. Faretta, 422 U.S. at 835, 95 S.Ct. 2525; Szuchon, 484 A.2d at 1377. If a defendant desires to do so, he must petition the court and the court must follow the appropriate legal procedure for securing a valid waiver of counsel.

Rule 121 of the Pennsylvania Rules of Criminal Procedure governs waiver of counsel proceedings and states in relevant part, "When a defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether there is a knowing, voluntary, and intelligent waiver of counsel." Pa.R.Crim.P. 121(c). To ensure that a waiver of counsel is knowing, voluntary, and intelligent, the following information must be elicited from the defendant: (1) whether the defendant understands that he has a right to be represented by counsel and the right to free counsel if he is indigent, (2) whether the defendant understands the nature of the charges against him and the elements of each of those charges, (3) whether the defendant is aware of the permissible range of sentences and/or fines for the offenses charged, (4) whether the defendant understands that if he waives the right to counsel he will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules, (5) whether the defendant understands that there are possible defenses to these charges to which counsel might be aware, and if these defenses are not raised they may be lost permanently, and (6) whether the defendant understands that, in addition to defenses, the defendant has other rights that, if not timely asserted, may be lost permanently and that if errors occur and are not objected to or otherwise timely raised by the defendant, the objection to these errors may be lost permanently. See Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335 (1995); Pa.R.Crim.P. 121 cmt.¹

Here, it is clear that Appellant was adequately questioned about each of these six areas. During his colloquy, and in front of the trial judge, the prosecutor explained to Appellant that he had a right to be represented by counsel, and fully explained the nature, elements, and possible penalties for all five degrees of homicide. The prosecutor then continued with the following exchange:

Prosecutor: Do you understand, sir, that if you waive your right to counsel you'll be bound by all of the normal rules of procedure and of evidence, and that your counsel, whether Mr. Foreman or some other attorney, may be more familiar with those rules and those procedures than you would be? Do you understand that?

Appellant: I understand.

Prosecutor: Do you understand, sir, that there may be defenses that you would have to these charges which Mr. Foreman or another attorney might be aware of that perhaps you would not be aware of, and that if these defenses are not raised at trial that you may lose the right to present those defenses forever and ever?

Appellant: I understand.

Prosecutor: Do you understand, sir, that in addition to these defenses that I just mentioned you may have other rights that if you do not bring them up in a timely manner, that is there are certain rules that say when you have to bring up certain claims, that if you don't bring them up in a timely manner that they may be permanently lost; do you understand that?

Appellant: I understand.

Prosecutor: Do you understand, finally, that there may be, if you were to represent yourself, errors during the trial, errors of law perhaps, or other errors which if they are not objected to at the time that they happen or in a timely manner that you may, because of your failure to act at that time, you may be said to have waived or given up the right to complain of those errors forever and ever?

Appellant: I understand.

Prosecutor: Sir, have you had any drugs or alcohol in the last couple of days that might affect your thinking here?

Appellant: No.

Prosecutor: Have you ever suffered any mental or physical infirmities that might affect your thinking here today? Appellant: No.

Prosecutor: How old are you?

Appellant: Thirty-seven.

Prosecutor: What's the extent of your education?

Appellant: High school.

Prosecutor: Do you read, write and understand the English language?

Appellant: Yes.

Prosecutor: Do you understand everything that I have said?

Appellant: Yes, I do.

Prosecutor: And you say that you have reviewed this rule yourself and are familiar with its terms even before you came here today?

Appellant: Yes.

Prosecutor: I have no other questions to be included in the colloquy.

N.T., 5/13/98, at 20-28.

Despite the fact that this colloquy clearly demonstrates that Appellant's waiver of counsel was knowing, voluntary, and intelligent, Appellant nonetheless contends that his waiver was invalid because it was the prosecutor rather than the judge who conducted the waiver colloquy. We disagree.

In support of his contention, Appellant first argues that Rule 121(c) of the Rules of Criminal Procedure plainly states that the judge must conduct the colloquy with the defendant. While Appellant is correct that the text of Rule 121(c) includes the statement that "the judge must ascertain on the record whether there is a knowing, voluntary, and intelligent waiver of counsel," we do not interpret that phrase as requiring the judge himself to conduct the colloquy. Rather, Rule 121(c) merely requires the judge to ascertain whether there has been a valid waiver, which he can certainly do by considering the defendant's answers to questions that someone else poses to the defendant in the judge's presence. In essence, Rule 121(c) makes the trial judge the one ultimately responsible for ensuring that the defendant is questioned about the six areas discussed above and for...