COMMONWEALTH of Pennsylvania, Appellee v. Khaddfi EL, Appellant.
Supreme Court of Pennsylvania.
Decided Aug. 20, 2009.
977 A.2d 1158
Submitted Feb. 18, 2009.
This is not to say that the General Assembly could never include two provisions in a single bill where only one has a statewide dynamic. Here, however, the two substantive sections of Act 193 address essentially unrelated topics, and the second section only controls access to a branch of the Commonwealth‘s government. Under these circumstances, I would conclude that the latter provision is simply too far removed from the former to satisfy the germaneness test that this Court has developed in relation to
Finally, under the above analysis I would find that the bill violates the single-subject rule regardless of whether Section 2‘s narrow definition of “aggrieved person” was intended to eliminate taxpayer standing as granted by Section 14-2807 of the Philadelphia Home Rule Charter. This is because, either way, Section 2 grants standing to a city entity (the City Council) that did not previously have standing. Accordingly, I would decline to reach the statutory construction issue. In all other respects I join Justice Baer‘s concurring and dissenting opinion.
Hugh J. Burns, Jr., Philadelphia District Attorney‘s Office, for Com. of PA.
Before: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
Justice GREENSPAN.
This appeal concerns a criminal defendant‘s request to represent himself at trial and the trial court‘s obligations in resolving such requests. We affirm.
In October 2005, Philadelphia Police observed Appellant Khaddfi El conduct a cocaine transaction on the street. Appellant was arrested on drug charges and a non-jury trial was scheduled for November 14, 2005. Appellant, asserting that police lacked probable cause, filed a motion to suppress cocaine and money seized from him at the time of his arrest. Following several requests for continuances, the suppression motion and trial were set for March 7, 2006. Appellant appeared in court with counsel on that date and proceedings began with a hearing on the suppression motion.
Philadelphia Officer Joseph McCauley testified that he and fellow Officer Moresca, both narcotics agents, regularly conducted drug investigations in the area in which Appellant was arrested. Officer McCauley explained that the drug trade in the neighborhood was rampant and that he had participated in over 100 narcotic surveillances and numerous drug arrests there. On the night in question, he observed Appellant and another person standing in the rain in an alley. Officer McCauley watched as the individual handed Appellant cash and Appellant retrieved a small plastic bag from his waistband. When the officers approached, Appellant shoved the bag back into his pants and attempted to flee. Police apprehended Appellant and recovered the plastic bag, which contained eight packets of cocaine. Police also recovered $82.00 in cash from Appellant.
In support of suppression, Appellant argued that the officers lacked probable cause to arrest, making the subsequent search and seizure unlawful. The Commonwealth countered that Appellant‘s telling conduct, as well as the neighborhood‘s widespread drug activity and the officers’ extensive experience investigating narcotics combined to establish probable cause.
Once the trial judge announced his ruling on suppression, Appellant‘s counsel informed the court that the defense was ready to proceed to trial. At this point, Appellant had already completed a written waiver of his right to a jury trial. The trial court then commenced with an oral colloquy to confirm Appellant‘s desire and willingness to waive his right to a jury trial and proceed with a bench trial. Appellant‘s counsel conducted the colloquy and Appellant confirmed, on the record, his intention to waive his right to a jury trial and his understanding of the ramifications of such a decision. Immediately after the jury waiver colloquy, defense counsel asked the court if it was satisfied with the colloquy. Appellant interrupted and announced to the court that he wished to know if he could represent himself at trial. The trial court responded that Appellant was to participate with his attorney. The following exchange took place:
Defense Counsel: You satisfied, Your Honor[?]
The Court: Yes.
[Appellant]: I want to know if I can represent myself at my trial.
The Court: No. You participate with your counsel.
[Appellant]: Is that not my right?
The Court: You can consult with your counsel. Waive arraignment.
Defense Counsel: Waive arraignment, enter a plea of not guilty.
Notes of Testimony (“N.T.“) 3/7/06 at 18.
Trial proceeded immediately and the Commonwealth incorporated into the trial record all non-hearsay testimony from the suppression hearing. The parties placed stipulations on the record. With the exception of admitting some exhibits, the Commonwealth offered no additional evidence, testimonial or otherwise. Appellant presented no evidence in defense. As noted by Appellant in his brief, “[t]he ensuing trial, including closing arguments, comprised slightly more than three
On appeal to the Superior Court, Appellant asserted that the trial court erred in denying suppression and further erred in denying him the right to proceed pro se. Appellant sought a new trial on both bases. With regard to Appellant‘s self-representation claim, the Commonwealth argued that Appellant‘s request was neither timely nor unequivocal, thus he was not entitled to relief. The Commonwealth further argued that Appellant waived the claim because he did not properly preserve it at time of trial. In its
The Superior Court affirmed the judgment of sentence. It held that Appellant‘s request to proceed pro se was untimely, coming as it did after Appellant had waived his right to a jury trial. The untimely nature of the request, reasoned the Superior Court, left the issue of self-representation to the trial court‘s sound discretion. Concluding that there had been no abuse of discretion on the trial court‘s part, the Superior Court denied Appellant relief on this issue.1 In concluding that the pro se request was untimely, the panel broadly stated that “[r]equiring trial courts to honor every pro se request after the jury-waiver colloquy would create disruptions and delay, thus frustrating judicial economy.” Commonwealth v. El, 933 A.2d 657, 663 (Pa.Super.2007).
We granted review in this case and limited the inquiry to the following issues:
1) Is a criminal defendant‘s request to represent himself or herself timely where the defendant makes the request after the denial of a pre-trial motion and just prior to commencement of a bench trial?
A criminal defendant‘s right to counsel under the
The right to waive counsel‘s assistance and continue pro se is not automatic however. Rather, only timely and clear requests trigger an inquiry into whether the right is being asserted knowingly and voluntarily. See Faretta, 422 U.S. at 836 (noting that the defendant sought to represent himself by way of a clear and unequivocal declaration asserted weeks before trial). See also Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81, 82 (1998) (holding that a
We examine first whether Appellant‘s request for self-representation was a timely one. If it was, Appellant was entitled to a “Faretta colloquy,” in satisfaction of
To date, the “meaningful trial proceedings” question has not been squarely resolved in the context of a bench trial. Here, the Superior Court concluded that there was little difference between “the decision of which jurors to select” and the “decision of whether to have the trial court act as jury.” El, 933 A.2d at 663. As a result, the panel reasoned, meaningful trial proceedings began the moment Appellant waived his right to trial by jury. Appellant‘s request for self-representation came after this event, making it untimely.
The Commonwealth reiterates the Superior Court‘s analysis and refers us to Commonwealth v. Dowling, 598 Pa. 611, 959 A.2d 910 (2008), as instructive. In Dowling, this Court interpreted the rule that permits a jury trial waiver to be withdrawn “at any time before the commencement of trial.”
In asserting that the trial had not yet commenced, the appellant in Dowling argued that the inquiry should focus on when jeopardy attached, which in the event of a bench trial is when the first witness is sworn. Id. at 914. As a result, the appellant maintained, withdrawal remained permissible under the Rule. But this Court rejected that analysis. Instead, this Court looked to the language of another rule,
A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial. It is not intended that preliminary calendar calls should constitute commencement of a trial.
Dowling, 959 A.2d at 913 (quoting Comment to
Because it was clear that the parties in Dowling had been directed to proceed to opening argument, and had chosen to decline the opportunity and proceed with the trial, this Court concluded that the trial indeed had commenced.4 Id. at 915. As a result, this Court held that the trial court properly denied the appellant‘s untimely request to withdraw his jury trial waiver.
The Commonwealth argues that Dowling should guide the decision in this case because both matters involve
The similarities between Dowling and this case are evident. Most significant is the fact that with both the right to a jury trial and the right to self-representation, there exists the potential danger of a defendant using the right to manipulate or delay proceedings. See Dowling, 959 A.2d at 915 (articulating concerns of manipulation, delay, and an adverse impact on judicial efficiency when a defendant seeks a late withdrawal of his jury trial waiver); Jermyn, 709 A.2d at 863 (noting concerns regarding disruptions, inconvenience, and delay when a defendant seeks to assert his right to self-representation in an untimely manner) (citations omitted). Indeed, the very basis for requiring a timely and unequivocal assertion of the right to proceed pro se is to avoid manipulation and delay. See Commonwealth v. Treiber, 582 Pa. 646, 874 A.2d 26, 32 (2005), cert. denied, 547 U.S. 1076, 126 S.Ct. 1783, 164 L.Ed.2d 528 (2006); Davido, 868 A.2d at 438 (relying on numerous federal appellate cases that are consistent with the purpose of the Faretta timeliness requirement).
Here, through the process of incorporation from the motion into the trial, nearly every piece of evidence to be presented by the Commonwealth (and in fact all testimonial evidence) already had been presented by the time Appellant made his request to proceed pro se. A verdict was literally minutes away. Thus, to characterize Appellant‘s request as coming before the commencement of meaningful trial proceedings is simply incorrect.
Because Appellant‘s time-of-trial motion had been litigated and resolved, and because he had both orally and in written form waived his right to a jury trial, meaningful trial proceedings had commenced in his case. As a result, his subsequent request for self-representation was untimely and he was not entitled to the protection set out in Faretta.
Appellant insists that even if we determine that his request to proceed pro se was untimely, he nonetheless is entitled to a new trial under the abuse of discretion standard that applies to untimely requests for self-representation. Appellant concedes that a late request—one that is asserted after meaningful trial proceedings have begun—is subject to the sound discretion of the trial court. The trial court‘s abuse of discretion is plain in this case, claims Appellant, because the court asked no questions of him when he sought to represent himself.
Appellant correctly recites the law with respect to an untimely request for self-representation. A request to take on one‘s own legal representation after meaningful proceedings have begun does not trigger the automatic constitutional right to proceed pro se. The decision instead is left to the sound discretion of the trial court. Davido, 868 A.2d at 438 (relying on Grazier, supra). Neither Faretta nor
Appellant argues that even if a Faretta /
The Commonwealth responds that in this case no inquiry was necessary because the trial court “had more than adequate tools for the task” of ruling on Appellant‘s request. Appellee‘s Brief at 18. Among other things, the Commonwealth notes that the trial court had the opportunity to observe Appellant with his counsel both at time of trial and at
The Superior Court appears to have concluded that where a criminal defendant has waived his right to a jury trial, the right to proceed pro se may be denied. Commonwealth v. El, 933 A.2d at 663 (“Requiring trial courts to honor every pro se request after the jury-waiver colloquy would create disruptions and delay, thus frustrating judicial economy“). To the extent the panel‘s opinion stands for the broad proposition that every request for self-representation is per se disruptive if made after a jury trial waiver, we reject it. There may be valid reasons why self-representation is appropriate or necessary, despite the fact that a defendant has indicated his willingness to proceed with a bench trial. While the competing concern to avoid delay and disruption is very real, the trial court should have some basis for concluding that such concerns are present. Where such concerns are not
We have defined a court‘s discretion as the “foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions.” Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 86 (2008) (citation omitted). An abuse of that discretion is “not merely an error of judgment, but ... [a] manifestly unreasonable ... result of partiality, prejudice, bias or ill will.” Id. The record in this case demonstrates no such unreasonableness, bias or ill will. Appellant‘s request was not merely late. His suppression motion had been resolved, his jury trial waiver had been accepted, and the admission of evidence against him was nearly complete. Under these circumstances, there was no abuse of discretion in denying Appellant‘s request to proceed pro se.
Judgment of sentence affirmed.
Justice TODD did not participate in the consideration or decision of this case.
Justices SAYLOR, EAKIN, BAER and McCAFFERY join the opinion.
Chief Justice CASTILLE files a concurring opinion.
CONCURRING OPINION
Chief Justice CASTILLE.
I join the Majority Opinion on the primary issue presented, see Majority Op., at 131-33, 977 A.2d at 1160-66, but write to
On the question of the discretionary response to late requests for self-representation, appellant would make this another instance where we impose an obligation upon the trial judge which essentially forces the trial judge into the role of sua sponte advocate for a counseled defendant. See, e.g., Commonwealth v. Davido, 582 Pa. 52, 868 A.2d 431 (2005), cert. denied, 546 U.S. 1020, 126 S.Ct. 660, 163 L.Ed.2d 534 (2005). Thus, appellant argues that the trial court was obliged to engage in some follow-up inquiry in the wake of his bald and belated request to proceed pro se, lest the exercise of discretion by the trial court be totally unmoored. The Commonwealth responds that it should be incumbent upon the counseled defendant to make a proffer or to request some follow-up inquiry and, in any event, no further inquiry was required on the record here.
In formulating its rule going forward, the Majority rejects the Commonwealth‘s suggestion that the defendant or his counsel has any obligation, Majority Op. at 141, n. 7, 977 A.2d at 1166, n. 7, and instead approves a discretionary rule of vague contours that gives the counseled defendant a free ride.
As the Majority correctly recognizes, the defendant has a near-absolute2 right of self-representation—provided the exercise of the right is made in a timely and clear fashion. See, e.g., Davido, 868 A.2d at 438 (citing Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129, 133 n. 6 (1981)). In Davido, the defendant was charged with first-degree murder and rape. Prior to trial, the counseled defendant sent the trial judge a letter requesting either the appointment of new counsel or to proceed pro se. The trial court held a pretrial conference to address the requests, and denied both. Following trial, the jury found the defendant guilty of first-degree murder and rape, and following the penalty phase (at which the defendant
I filed a Concurring Opinion in Davido, expressing my disagreement with the rejection of the Commonwealth‘s waiver argument noting, inter alia, that:
... I respectfully disagree with the Majority‘s conclusion that appellant did not waive his claim of trial court error. At all relevant times, appellant was represented by presumptively competent counsel. Once counsel enter an appearance, they are not potted plants. Lawyers are obliged to present arguably meritorious issues to the trial judge, including issues involving the constitutional right to counsel and the coordinate right to self-representation first recognized in Faretta [Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)], even if such issues may
invite discord between attorney and client. Can it seriously be doubted on this record that if appellant and/or his lawyers had squarely invoked the right to self-representation, cited to Faretta, and then asked for a voluntariness colloquy that the trial court would have conducted the colloquy? In my view, the Commonwealth is correct to a mathematical certainty that there is no preserved claim of trial court error on this record; rather, the only claim possibly viable is one sounding in the ineffective assistance of trial counsel which, under this Court‘s precedent, should await collateral review under the PCRA.
868 A.2d at 447-48 (Castille, J., concurring) (footnote omitted).
This case is not governed by Davido because here, unlike in Davido, the request for self-representation was untimely. Therefore,
Appellant here forwarded a bald request, neither he nor his counsel made an argument explaining why the request should be indulged at that late hour in the proceedings, and counsel did not inquire further of his client or ask the judge to do so. In addition, the disruption and likely motivation for the request (appellant had nothing to lose having already lost the suppression motion) were obvious. There cannot have been an abuse of discretion, or a lapse, upon the part of the trial judge. Indeed, the court‘s response here was perfectly appropriate: “consult with your counsel.”
Notes
(a) that the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges;
(c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;
(f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.