Commonwealth v. Brazil

701 A.2d 216, 549 Pa. 321, 1997 Pa. LEXIS 1943

• Court: Supreme Court of Pennsylvania
• Decided: September 22, 1997
• Docket: 93 E.D. Appeal Docket 1996
• Status: Published

Opinions

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 presented 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 routine linen check. Appellant then left the cell peacefully, but Allen refused to cooperate. He struck a guard two or three times on the head with the filled pillow case.

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 Appellant’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 represents 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 “[ujnder 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. Pennsylvania Rule of Criminal Procedure 318 states, in pertinent part:

(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 accepted, 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.

Pa. R.Crim. P. 318(c), (d). Moreover, in Commonwealth v. Tyler, 468 Pa. 193, 198, 360 A.2d 617, 620 (1976), this Court stated that

[w]hile an accused may waive his constitutional right [to counsel], such a waiver must be the ‘free and unconstrained choice 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 trial.... ” 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 accused, 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 Rule 318(c) makes clear, when a defendant seeks to waive the right to counsel, the trial court is required to conduct, on the record, a full and complete waiver colloquy to determine whether the defendant’s waiver is knowing, voluntary, and intelligent. The provision in Rule 318(d) for the appointment of standby counsel does not eliminate or alter this requirement. Whether standby counsel is ultimately appointed or not, and irrespective of the quality of representation achieved at trial, when a defendant indicates a desire to waive his right to counsel, a full waiver colloquy must be conducted. See Pa. R.Crim. P. 318(c), (d); Monica; Tyler.

It being apparent that no such colloquy occurred in the instant case, we reverse and remand for a new trial. Jurisdiction relinquished.

CASTILLE, J., files a dissenting opinion in which NEWMAN, J., joins.

1 . Appellant gave no opening statement to the jury. See N.T., 7/20/95, at 10. He spoke briefly with standby counsel at only three points in the trial: twice during the cross-examination of Correctional Officer Anthony Calloway, and once during the cross-examination of the assault victim, Correctional Officer Martin Earhart, Sr. See id. at 54, 55, 83. Standby counsel presented a closing argument to the jury and discussed with the trial court the proposed jury instructions.

2 . Appellant was sentenced to 25 to 60 months in prison for the assault by a prisoner conviction, to be served consecutively to the sentence he was already serving. On the conspiracy charge, he was given a concurrent term of 4 to 24 months in prison. For sentencing purposes, the simple assault conviction merged with the assault by a prisoner conviction.