THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART 1. GENERAL
[ 234 PA. CODE CH. 1 ]
Order Amending Rule 121; No. 360; Doc. No. 2
[38 Pa.B. 61]
[Saturday, January 5, 2008]
Order Per Curiam:
Now, this 19th day of December, 2007, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 36 Pa.B. 4597 (August 19, 2006), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 865), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the amendments to Rule of Criminal Procedure 121 are adopted in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective February 1, 2008.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART B. Counsel Rule 121. Waiver of Counsel.
(A) GENERALLY.
(1) The defendant may waive the right to be represented by counsel.
(2) To ensure that the defendant's waiver of the right to counsel is knowing, voluntary, and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant:
(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;
(e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and
(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.
(3) The judge or issuing authority may permit the attorney for the Commonwealth or defendant's attorney to conduct the examination of the defendant pursuant to paragraph (A)(2). The judge or issuing authority shall be present during this examination.
* * * * *
Comment Paragraph (A) recognizes that the right to self-representation is guaranteed by the sixth amendment to the Federal Constitution when a valid waiver is made, Faretta v. California, 422 U.S. 806 (1975).
Court decisions contain broad language in referring to the areas and matters to be encompassed in determining whether the defendant understands the full impact and consequences of his or her waiver of the right to counsel, but is nevertheless willing to waive that right. The appellate courts require, however, at a minimum, that the judge or issuing authority ask questions to elicit the information set forth in paragraph (A)(2).
Although it is advisable that the judge or issuing authority conduct the examination of the defendant, the rule does not prevent the attorney for the Commonwealth or an already-appointed or retained defense counsel from conducting all or part of the examination of the defendant as permitted by the judge or issuing authority. See Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504 (2002).
On the issue of waiver of counsel in general, see, e.g., Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Commonwealth ex rel. Fairman v. Cavell, 423 Pa. 138, 222 A.2d 722 (1966) (mere execution of a waiver of counsel form, without more, is insufficient to establish a valid waiver); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).
In referring to summary cases, paragraph (B) refers only to those summary cases in which there exists a right to counsel. See Rule 122.
While the rule continues to require a written waiver of counsel incorporating the contents specified in paragraph (B), in proceedings before an issuing authority, the form of waiver was deleted in 1985 because it is no longer necessary to control the specific form of written waiver by rule.
[In the state of the law existing at the time this rule was drafted, it is difficult to formulate a comprehensive list of questions which must be asked of the defendant in determining whether the defendant's tendered waiver of counsel is knowing, intelligent, and voluntary. Court decisions contain broad language in referring to the areas and matters to be encompassed in determining whether the defendant understands the full impact and consequences of his waiver of the right to counsel, but is nevertheless willing to waive that right. It is recommended, however, that at a minimum, the judge or issuing authority ask questions to elicit the following information:
(1) 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.
(2) That the defendant understands the nature of the charges against the defendant and the elements of each of those charges.
(3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(4) That the defendant understands that if he or she waives the right to counsel, the defendant will still be found by all the normal rules of procedure and that counsel would be familiar with these rules.
(5) That the 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.
(6) 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.
This area is presently one of some flux in the law; therefore, it is intended that what is set out above is only a beginning and, depending on the circumstances of the particular case, may not necessarily be sufficient to assure a valid waiver of counsel. On the issue in general, see, e.g., Commonwealth v. Tyler, 360 A.2d 617 (Pa. 1976); Commonwealth ex rel. Fairman v. Cavell, 222 A.2d 722 (Pa. 1966) (mere execution of a waiver of counsel form, without more, is insufficient to establish a valid waiver); Commonwealth ex rel. McCray v. Rundle, 202 A.2d 303 (Pa. 1964); Commonwealth ex rel. O'Lock v. Rundle, 204 A.2d 439 (1964).]
Under paragraph (C) of this rule, the colloquy relating to the defendant's attempted waiver of counsel must appear on the record. This requirement is not applicable to such waivers in proceedings under paragraph (B), because these proceedings are not in courts of record. However, the absence of such requirement is not intended to be construed as affecting the scope or nature of the inquiry to be made in a particular case.
It is intended that when the defendant has waived his or her right to counsel before the issuing authority for purposes of the preliminary hearing, such waiver shall not normally act as a waiver of the right to counsel in subsequent critical stages of the proceedings. Therefore, under paragraph (C) it is intended that a further waiver is subsequently to be taken by a judge of the court of common pleas.
[Although it is advisable that the judge or issuing authority should conduct the examination of the defendant, the rule does not prevent the attorney for the Commonwealth or an already-appointed or retained defense counsel from conducting all or part of the examination of the defendant as permitted by the judge or issuing authority.]
With respect to trials in court cases, when the defendant waives the right to counsel and elects to proceed pro se, it is generally advisable that standby counsel be appointed to attend the proceedings and be available to the defendant for consultation and advice. See Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 ( [Pa.] 1976). This is particularly true in cases expected to be long or complicated, or in which there are multiple defendants. See ABA Standards, The Function of the Trial Judge § 6.7 (Approved Draft 1972). The ability of standby counsel to assume control of the defense will minimize delay and disruption of the proceedings in the event that the defendant's self-representation terminates, e.g., either because such termination becomes necessary as a result of the defendant's unruly behavior, or because the defendant seeks to withdraw the waiver and be represented by counsel. With respect to pretrial proceedings or summary case trials it is intended that standby counsel may be appointed at the discretion of the presiding judicial officer.
Official Note: Rule 318 adopted October 21, 1977, effective January 1, 1978; amended November 9, 1984, effective January 2, 1985; renumbered Rule 121 and amended March 1, 2000, effective April 1, 2001[.]; amended December 19, 2007, effective February 1, 2008.
* * * * * Committee Explanatory Reports:
* * * * * Final Report explaining the December 19, 2007 changes to paragraph (A) concerning areas of inquiry for waiver colloquy published with the Court's Order at 38 Pa.B. 62 (January 5, 2008).
FINAL REPORT1
Amendments to Pa.R.Crim.P. 121
Waiver of Counsel Colloquy On December 19, 2007, effective February 1, 2008, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the amendments to Rule 121 to emphasize the minimum areas of inquiry that are required for colloquies into waiver of counsel.
As part of the Committee's continuing review of the rules and case law, the Committee considered Commonwealth v. Payson, 723 A.2d 695 (Pa.Super. 1999), which held that the waiver of counsel colloquy was inadequate, in part, because the trial court did not follow the requirement to inquire into the six areas listed in the Rule 121 Comment. The Committee also noted that Payson is another in a long line of cases in which judges have failed to inquire into these six mandatory areas.
At the time Rule 121 was promulgated in 1977, the case law was evolving concerning waiver of counsel colloquies and the information the court must have in determining that the waiver is knowing and intelligent. In view of this, the listed areas of inquiry were placed in the Comment rather than the text of the Rule. The Committee at the time thought it best to allow precedent to develop rather than attempting to codify all possible areas of inquiry by rule. Subsequently, the requirements became firmer as case decisions reinforced the six areas of inquiry as minimum requirements for the colloquies.
Although the case law is clear concerning the mandatory nature of the inquiry, the Committee acknowledged the continued lack of compliance by some courts, as demonstrated in the Payson case, and agreed that the mandatory nature of the inquiry requirements needed to be emphasized by moving the six areas of inquiry in the Rule 121 Comment into paragraph (A), which is the general application provision.
To conform with these proposed changes to paragraph (A), the Comment is reorganized by moving to the beginning of the Comment the provisions that address the areas of inquiry and the conduct of the colloquy.
Additionally, the Superior Court in Payson narrowly interpreted the language of Rule 121(C) to require that the colloquy must be conducted by the judge. This latter point was contrasted with the Supreme Court's decision in Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504 (2002) that concluded that someone other than the judge, such as the attorney for the Commonwealth or defense counsel, could actually conduct the colloquy so long as the judge was present.
Therefore, in addition to the six areas of inquiry, a provision is added making the rule clear that the attorney for the Commonwealth or the defendant's attorney may conduct the examination and that the judge must still be present. A cross-reference to the Supreme Court's decision in Commonwealth v. McDonough, which provides authority for a judge to permit someone else to conduct the examination of the defendant concerning the waiver, is added to the new third paragraph of the Comment.
[Pa.B. Doc. No. 08-4. Filed for public inspection January 4, 2008, 9:00 a.m.] _______
1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
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