Commonwealth v. Baker

Decision Date12 August 1983
Citation464 A.2d 496,318 Pa.Super. 19
PartiesCOMMONWEALTH of Pennsylvania v. Johnny BAKER, Appellant.
CourtPennsylvania Superior Court

Submitted March 24, 1983.

John P. Yatsko, Norristown, for appellant.

Ronald Thomas Williamson, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.

Before HESTER, JOHNSON and POPOVICH, JJ.

HESTER Judge:

Appellant Johnny Baker, was charged with assault by prisoner recklessly endangering another person, possessing prohibited offensive weapons, two counts of possessing instruments of crime, two counts of simple assault, and two counts of aggravated assault. These charges resulted from appellant's unprovoked attack upon fellow inmate, George Ingram, on August 17, 1976, with a four-inch pair of trimming shears while both men were incarcerated in the State Correctional Institution at Graterford, Pennsylvania.

On January 27, 1977, appellant was brought before the Court of Common Pleas in Montgomery County, Pennsylvania, for a non-jury trial. An assigned attorney from the Montgomery County Public Defenders' Office appeared on appellant's behalf however, appellant insisted upon representing himself. Thereafter, the court conducted a colloquy in an attempt to assure the validity of appellant's waiver of counsel. Satisfied that appellant was fully aware of the charges and his constitutional rights, those remaining and those waived, the court permitted assigned counsel to withdraw and proceeded to conduct the non-jury trial with appellant promoting a pro se defense.

Appellant was found guilty of simple assault; he was acquitted on the remaining charges. At sentencing on April 29, 1977, appellant was ordered to serve a term of imprisonment of not less than one nor more than two years in a State Correctional Institution. This term was to run consecutively to those under which appellant was serving at the time of the offense. Appellant also appeared at sentencing without legal representation, and no colloquy was conducted at sentencing to determine the validity of appellant's continued waiver of his right to counsel.

Although appellant made oral post trial motions immediately following trial, no appeal was taken from the judgment of sentence; instead, appellant filed a pro se petition for post conviction relief. The Commonwealth filed a motion to dismiss and an answer to appellant's petition. Appellant was represented by counsel at oral argument on his P.C.H.A. petition. The lower court briefly took the matter under advisement prior to denying appellant's prayer for relief. This appeal followed.

Appellant seeks a new trial on grounds that he did not knowingly, intelligently and voluntarily waive his right to counsel at trial. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court considered the Sixth Amendment and both English and colonial jurisprudence as bases for holding that an accused possesses the constitutional right to proceed with his defense without the aid of counsel. As noted by the Faretta court, the Sixth Amendment provides the minimum procedural due process rights of notice of the nature and grounds for each charge, confrontation, compulsory process for securing witnesses and the assistance of counsel. These rights belong solely to the accused, and they are aids to a "willing defendant." Therefore, according to the Faretta court, it would contravene the logic of the Sixth Amendment to force counsel upon an unwilling defendant, thereby promoting counsel as the master of the accused, rather than as his assistant.

The Faretta court dismissed any conceivable conflict between the accused'sright to be prosecuted only where he was accorded the opportunity to defend himself with legal assistance, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and the accused's option to proceed with counsel; the former maxim does not compel an accused to defend criminal charges with the aid of counsel.

Accordingly, in this case, the lower court would not simply dismiss appellant's wishes, as expressed in the following portions of the colloquy at trial:

THE COURT: Well, you started to say something that you didn't want Mr. Fitzgerald to represent you.

APPELLANT: No, I don't.

THE COURT: Do you have a lawyer?

APPELLANT: I'm my own lawyer.

THE COURT: You want to represent yourself?

APPELLANT: I am going to.

(N.T., January 27, 1977, page 5).

....

THE COURT: You understand your rights concerning legal representation, do you not?

APPELLANT: I do.

THE COURT: Understanding that and everything that I said to you, will you tell me specifically whether or not you desire to be represented by a lawyer?

APPELLANT: Well, your Honor, I think I answered that question from the beginning. I am my own lawyer.

(N.T., January 27, 1977, page 5).

Having heard appellant's desire to proceed without counsel's assistance, the trial judge was required to comply with the skeletal mandate of Pa.R.Crim.P. 318(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.

Rule 318(c) does not instruct lower court judges as to the extent of an inquiry into the accused's knowledge and intelligence and the voluntariness of his waiver. In Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964), our Pennsylvania Supreme Court held that this inquiry shall not be engaged in lightly; rather, constitutional rights, elements of the offenses, ranges of penalties and fines and other relevant facts and law shall be adequately explained to the accused. The onus carried by trial judges here was explained in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948):

To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which a plea is tendered.

Id., 332 U.S. at 723-724, 68 S.Ct. at 323.

A form providing for the simple written waiver of counsel, without this on-the-record inquiry, will not suffice as an alternative means to assuring valid waivers. Commonwealth ex rel. McCray v. Rundle, supra.

The rights to effective assistance of counsel and to represent oneself are extensively applied. For instance, a judge's thorough inquiry into the accused's appreciation of both rights must be used in certain summary proceedings, Pa.R.Crim.P. 318(a), at trial, Gideon v. Wainwright, supra, guilty plea hearings, Commonwealth ex rel. Johnson v. Maroney, 416 Pa. 451, 206 A.2d 322 (1965); Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455 (1964), sentencing, Commonwealth ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A.2d 450 (1964), and every "critical stage" of a criminal proceeding. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Gideon v. Wainwright, supra. Once an accused is deemed to have made a voluntary, knowing and intelligent waiver of counsel, a judge is encouraged at trial in court cases to make counsel available throughout the proceedings in, at least, an advisory capacity. Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976).

In this case, immediately after counsel from the Montgomery County Public Defender's Office informed the court that appellant wished to represent himself, the trial judge reviewed the charges:

THE COURT Well, let me say what the charges are and then I may have a...

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