COMMONWEALTH of Pennsylvania, Appellee, v. Brian BRAZIL, Appellant.
Supreme Court of Pennsylvania.
Sept. 22, 1997.
701 A.2d 216
Argued April 30, 1997.
Mary McNeil Killinger, Hollie John, Norristown, for the Commonwealth.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
OPINION
NIGRO, Justice.
Appellant Brian Brazil appeals from the Superior Court‘s affirmance of his conviction for criminal conspiracy, assault by a prisoner, and simple assault. For the reasons рresented herein, we reverse.
Appellant Brazil was an inmate at the State Correctional Institute at Graterford. On the evening of July 17, 1994, all the inmates were told to return to their cells for a cell check. Appellant suspected that the guards were going to search the cell he shared with co-defendant Anthony Allen, so he told Allen that they had to be ready when the guards came. Appellant then put six “D” batteries into a pillow case and handed it to Allen. When the guards arrived at the cell, they informed Appellant that they were simply conducting a rou-
Appellant and Allen were charged with conspiracy, assault by a prisoner, aggravated assault, and simple assault. Appellant was represented by a public defender at two preliminary hearings. At trial, however, he stated that he did not want to be represented by a public defender. In response, and without conducting a waiver of counsel colloquy, the trial judge placed Appellant‘s defender on “standby” status, and Appellant represented himself.1
After trial, the jury convicted Appellant on the conspiracy, assault by a prisoner, and simple assault charges.2 No post-trial motions were filed. On appeal, the Superior Court affirmed. This Court then granted allocatur to determine whether the Superior Court erred in holding that the totality of the circumstances regarding Appellаnt‘s representation at trial obviated the requirement of a waiver of counsel colloquy. Upon due consideration, we conclude that the Superior Court did err and we therefore reverse.
At the outset of trial, immediately after the judge entered the courtroom, the following exchange occurred.
THE COURT: Are they going to be represented or not?
DEFENDANT BRAZIL: I don‘t want to be represented by no attorney from the Public Defender‘s Office.
CO-DEFENDANT ALLEN: Same thing.
THE COURT: You are dismissing your attorneys?
DEFENDANT BRAZIL: Yes, sir. CO-DEFENDANT ALLEN: Yes, sir.
THE COURT: All right, gentlemen, have a seat back there, and if you need them you can call upon them. Otherwise, you will represent yourself.
(Respective attorneys moved to the first row in the courtroom behind the defendants.)
THE COURT: Bring in the jury.
N.T., 7/20/95, at 5-6.
This brief discussion rеpresents the sum total of the trial court‘s inquiry into Appellant‘s understanding of his right to counsel and of the consequences of waiving that right. Despite this, the Superior Court found that “[u]nder a totality of the circumstances, ... [Appellant] was adequately represented at trial, and, thus, the colloquy performed by the trial court was not inadequate.” Superior Ct. Op. at 5.
We disagree.
(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.
(d) Standby Counsel. When the defendant‘s waiver of counsel is acceptеd, standby counsel may be appointed for the defendant. Standby counsel shall attend the proceedings and shall be available to the defendant for consultation and advice.
[w]hile an accused may waive his constitutional right [to counsel], such a waiver must be the “free and unconstrained choicе of its maker[,]” Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), and also must be made knowingly and intelligently, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). To be a knowing and intelligent waiver defendant must be aware of both the right and of the risks of forfeiting that right. See Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971)....
Accordingly, “a trial judge must thoroughly inquire on the record into an accused‘s appreciation of the right to effective assistance of counsel and to represent oneself at triаl....” Commonwealth v. Monica, 528 Pa. 266, 274, 597 A.2d 600, 603 (1991). “The record must show ... that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Id. at 273, 597 A.2d at 603.
We believe it is clear that the above-quoted exchange between Appellant and the trial court fell far short of these requirements. The lower court simply failed to elicit any information indicating that Appellant‘s desire to waive his right to counsel was knowing and intelligent.
In support of its conclusion that Appellant‘s colloquy was “not inadequate,” the Superior Court cited its decision in Commonwealth v. Lloyd, 370 Pa.Super. 65, 535 A.2d 1152 (1988), wherein the court stated: “where, as here, standby counsel was available to confer with the аccused, no need exists to review the colloquy for completeness by the same standards of a full waiver colloquy.” Lloyd, 370 Pa.Super. at 86, 535 A.2d at 1163.
We disagree with this statement. As the plain language of
CASTILLE, J., files a dissenting opinion in which NEWMAN, J., joins.
CASTILLE, Justice, dissenting.
The majority holds that appellant, who had the benefit of court appointed standby counsel‘s assistance during trial, is entitled to a new trial because he was denied adequate representation of counsel when the trial court failed to conduct an extensive colloquy which complied with Rule 318 of the Pennsylvania Rules of Criminal Procedure in order to determine if appellant‘s waiver of his right to counsel was knowing, voluntary and intelligent. Because the trial court appointed standby counsel to assist appellant at trial and the assistance which appellant received from his standby counsel during trial was tantamount to being represented by cоunsel, I believe that the trial court‘s colloquy in this case was sufficient to protect appellant‘s Sixth Amendment right to counsel. Therefore, I respectfully dissent.
A criminal defendant has a constitutional right to dispense with counsel and defend himself as long as the choice was made knowingly, voluntarily and intelligently. Commonwealth v. Starr, 541 Pa. 564, 580-81, 664 A.2d 1326, 1334-34 (1995). As cоrrectly noted by the majority, Rule 318 of the Rules of Criminal Procedure provides for a judge to determine on the record if the criminal defendant‘s waiver of counsel was knowing, voluntary and intelligent. Rule 318 also allows the trial court to appoint standby counsel to assist the criminal defendant during the trial.
The majority herе espouses a bright line rule of law which requires the trial court to conduct an extensive colloquy on the record every time a criminal defendant indicates that he is waiving his right to counsel.1 Under the majority‘s rule, a
[T]he determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
It is clear from the record in this case that the trial court did not conduct an extensive six prong colloquy of defendant
Appellant apparently understood the ramifications of this colloquy and the availability of assistance from the court appointed standby counsel since the record demonstrates that appellant availed himself of standby counsel‘s assistance throughout trial. In particular, appellant conferred with his standby counsel on three occasions during appellant‘s cross-examination of the Commonwealth‘s witnesses. (N.T. 7/20/95 at pp. 54, 55, 83). Standby counsel also reported to the trial court that while he was outside the courtroom during a break, he observed one of the Commonwealth‘s witnesses who just completed testifying discussing his testimony with a Commonwealth witness who had yet to take the stand. Also, following the close of the testimony, appellant requested the trial court to permit standby counsel to make closing argument on his behalf. After the trial court approved the request, standby counsel gave a closing argument in which he discussed the elements of each crime of which appellant was charged and
Moreover, when a totality of the circumstances test is applied to thе facts of this case, it becomes apparent that appellant should not receive a new trial because he fails to demonstrate that he was prejudiced by the trial court‘s failure to conduct a more extensive colloquy. Here, appellant alleges he was prejudiced from the failure to receive a more extensive colloquy because he did not request that Commonwealth witnesses be sequestered and he failed to more thoroughly cross-examine Commonwealth witnesses. However, the record shows that the Commonwealth voluntarily sequestered its witnesses. Also, appеllant fails to explain how a more thorough cross-examination of the Commonwealth witnesses would have revealed new evidence which would have changed the verdict since the facts, as recounted by the majority, were straightforward and do not appear to be in dispute. Thus, I believe that the rеcord does not demonstrate that appellant suffered prejudice from the trial court‘s colloquy in this case.
Based on the above, the record demonstrates that appellant effectively was represented by counsel throughout the entire process, including his trial. I believe it is a great disservice to the interests of justice for the majority to permit appellant to refuse representation at trial and now prevail on appeal because of the allegation that he was denied adequate representation even though the record shows that appellant obtained the benefit of standby counsel‘s legal advice and legal
NEWMAN, J., joins this Dissenting Opinion.
Notes
- the defendant understands that he has a right to bе represented by counsel, and the right to have free counsel appointed if he is indigent; (2) the defendant understands the nature of the charges against him and the elements of each of those charges; (3) the defendant is aware of the permissible range of sentences and/or fines for the offenses сharged; (4) the defendant understands that if he waives his 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) defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and, (6) the defendant understands that, in addition to the defenses, the defendant has many rights that, if not timely asserted, may be lost permanently. Starr, 541 Pa. at 582, 664 A.2d at 1335.