Commonwealth v. Miller

366 A.2d 299, 244 Pa. Super. 26, 1976 Pa. Super. LEXIS 3005

Opinions

CERCONE, Judge:

This is a direct appeal from a judgment of sentence of the Court of Common Pleas of Allegheny County, Criminal Division, following a conviction of theft, forgery, uttering forged instruments, and possession of a controlled substance. Post-trial motions were timely filed and denied.

Appellant contends that his waiver of jury trial was invalid. The record indicates that an extensive colloquy was conducted, with the court and defense counsel (a public defender handling the case as private counsel) alternating the questioning. Counsel asked what would have been, except for the response, a concluding question:

“And notwithstanding what Judge Fiok and I have said, you are waiving your right to trial by jury?”

Appellant answered:

“Maybe I shouldn’t, maybe I should take a jury. I’d like to have a jury trial.”

Counsel reminded appellant that he could not represent him in a jury trial as he was taking the case as private counsel. (Public Defenders in Allegheny County are restricted, as a matter of office policy, to guilty pleas and non-jury trials in their private criminal practice.) Appellant reiterated that he wanted a jury. The court ordered that a jury be selected. A brief consultation between appellant and counsel apparently followed, whereupon a further exchange took place:

“Mr. Swem: Your Honor, Mr. Miller has something he’d like to say.

The Court: No, there’s nothing to discuss at this time. He made his selection, that’s, it.

Mr. Swem: He said he’d like to go non-jury now.

Mr. Miller: I have no money for another attorney. Mr. Swem said he can’t represent me if I go to a jury trial, and that means I’ll be without a lawyer. I made a mistake, anyway.”

After further questioning by the court to establish that appellant’s choice was not the result of any threats or inducements, his waiver was accepted.

The closest parallel we find to appellant’s dilemma is that of the defendant in Commonwealth v. Werner, 217 Pa.Super. 49, 268 A.2d 195 (1970), who was presented by counsel who had previously represented two of his co-defendants, both of whom had pleaded guilty. The court held that the circumstances of the case showed a conflict of interest and proceeded to examine the pretrial colloquy to ascertain whether the defendant had intelligently waived his right to have counsel unburdened by a conflict of interest. Our court stated at pages 57-59,268 A.2d at page 199:

“In order for an accused to intelligently evaluate his predicament, he should know what a lawyer representing him alone could do. He should know what a lawyer who represents another co-defendant may be hindered from doing. The court should tell the accused that if he cannot afford to hire another lawyer, then he will be represented by a court-appointed attorney. . . .

“We are convinced that appellant could not intelligently evaluate whether to waive counsel. The colloquy does not indicate that he was aware of the considerations that underlay his choice. . . .

“Apparently . . . appellant was concerned that he could not afford to employ counsel. He knew trial counsel and intended to ‘pay him in the future.’ It may indeed have been the case that appellant was reluctant to attempt to search anew for counsel. The court did not inform him that should he wish to change counsel and should he be unable to hire another, he would have counsel appointed to represent him.

“. . . The colloquy of the court is insufficient to establish a competent and intelligent waiver. Since we cannot tell what choice appellant would have made had he been informed and since a potential of harm existed from the dual representation, we conclude that error was committed below.”

The instant appellant was likewise uninformed of his right to have other counsel appointed if he wanted a jury trial and could not afford to hire new counsel. His belief, never corrected by the court, that he had to choose between the exercise of two fundamental rights — trial by jury and assistance of counsel — makes it impossible to conclude that his waiver of jury trial was a knowing one.¹

Judgment reversed and the case is remanded for a new trial.

SPAETH, J., files a concurring opinion. PRICE, J., files a dissenting opinion, in which VAN der VOORT, J., concurs in the result.

1 . This case is one of first impression in this Commonwealth, and we have no reason, presently, to believe that it will not remain unique. We hasten to add, however, that should the current policy of the Public Defender’s Office of Allegheny County lead to continued challenges to the voluntariness and intelligence of jury trial waivers in the future, that policy will have to be revamped. We also suggest that those public defenders who practice as private criminal defense attorneys consult the Canons of Ethics, Disciplinary Rule 5-101(A) which provides:

“Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.”

We believe that adherence to the spirit, as well as the letter, of that directive will help to obviate the problem posed in the instant case.