Com. v. Hare v. III
Com. v. Hare v. III No. 994 MDA 2016
| Pa. Super. Ct. | Jul 31, 2017Background
- On Oct. 13, 2014 police responded to a home where an 11‑year‑old child was found dead; Appellant Victor Hare admitted there were firearms in the residence.
- A criminal history check showed multiple felony convictions for Hare; a search warrant for the home recovered a shotgun and two rifles from his bedroom.
- Hare was charged with possession of a firearm by a prohibited person; after a jury trial on May 19, 2016 he was convicted and sentenced to 5–10 years.
- The Public Defender’s office withdrew for conflict; Kathleen Lincoln was appointed as conflict counsel and represented Hare up to jury selection. After Lincoln moved to withdraw and the court denied her recusal, the court ordered Hare to proceed pro se and made Lincoln standby counsel.
- The trial court treated Hare as having forfeited his right to counsel and did not conduct the Rule 121 waiver colloquy before trial.
- The Superior Court reversed and remanded for a new trial, holding the court erred by forcing Hare to proceed pro se without the required Rule 121 colloquy; the court found Hare’s conduct did not amount to forfeiture.
Issues
| Issue | Hare's Argument | Trial Court/Commonwealth Argument | Held |
|---|---|---|---|
| Whether trial court erred by denying continuance/appointment of new counsel and forcing Hare to proceed pro se without a Rule 121 colloquy | Court improperly coerced waiver of counsel; no valid Rule 121 waiver occurred | Hare forfeited the right to counsel through his last‑minute demand and dissatisfaction (court relied on forfeiture doctrine) | Reversed: Hare did not engage in extreme misconduct/delay to justify forfeiture; court must either appoint counsel or conduct full Rule 121 colloquy before accepting waiver; new trial ordered |
| Whether the court erred in not hearing Hare’s motion for nominal bail until after trial and sentencing | Criminal procedural error impacting Hare’s pretrial liberty | Moot due to subsequent conviction and continued incarceration | Moot (second issue not reached) |
Key Cases Cited
- Commonwealth v. Kelly, 5 A.3d 370 (Pa. Super. 2010) (forfeiture of counsel where defendant repeatedly refused to cooperate with multiple appointed attorneys)
- Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa. 2009) (distinguishes waiver from forfeiture; forfeiture requires extremely serious or dilatory conduct)
- Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000) (reversal where defendant had a legal right to counsel and was deprived of counsel during the proceeding)
- Commonwealth v. Thomas, 879 A.2d 246 (Pa. Super. 2005) (forfeiture upheld where defendant engaged in pattern of misconduct and failed to collaborate with successive attorneys)
- Commonwealth v. Coleman, 905 A.2d 1003 (Pa. Super. 2006) (forfeiture affirmed where defendant repeatedly appeared without counsel or caused counsel to withdraw)