Chief Justice CASTILLE.
In this direct capital appeal, which has yet to be briefed, appellant Andre Staton's court-appointed counsel Thomas N. Farrell, Esquire (hereafter "counsel"), filed a Motion to Withdraw on July 21, 2010, alleging that appellant sent correspondence to counsel "terminating" counsel's representation. Counsel believed that appellant's correspondence created an obligation to move to withdraw. On the merits of the motion, however, counsel forwards a novel and cogent argument against withdrawal, which occasions this Opinion, and which we will discuss below. For the reasons stated herein, we deny counsel's request to withdraw and direct him to file his brief.
Appellant was tried in the Court of Common Pleas of Blair County on homicide and related charges, with the Honorable Elizabeth Doyle presiding. On May 2, 2006, a jury found appellant guilty of first-degree murder and related crimes. The following day, the jury returned a sentence of death based on its finding that two aggravating circumstances outweighed four mitigating circumstances. See 42 Pa. C.S. § 9711(c)(1)(iv). On June 1, 2006, the trial court formally imposed the sentence of death. See Post-Verdict Motions Opinion and Order dated June 25, 2007. On July 25, 2007, appellant filed an appeal
The trial court entered an order appointing current counsel on June 30, 2009; counsel is appellant's seventh attorney in this case.
The Motion to Withdraw alleges that, on June 7, 2010, appellant attempted to file a pro se post-trial motion with the trial court, in which he purported to "terminate" appointed counsel's representation and sought leave to represent himself. Counsel attaches a copy of the motion as Exhibit 1, and notes that the trial court forwarded it to him pursuant to Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993), which forbids hybrid representation. The attached motion is titled "Post Trial Motion by the Defendant Andre Staton Terminating Counsel and Seek [sic] Leave to Represent Himself." The first two paragraphs of the motion express appellant's desire to terminate counsel's representation and proceed pro se by stating:
See Motion to Withdraw as Counsel, Exhibit 1. The remainder of appellant's pro se motion is confusing to say the least: appellant's primary complaint indicates a desire to litigate post-verdict motions, and complains that counsel merely filed a "statement of matters [complained of on appeal]." The motion thus reveals that appellant did not appreciate the procedural posture of the case. Appellant also does not specifically speak to whether he desires self-representation on appeal.
In his Motion to Withdraw, counsel also alleges that after appellant filed his motion, appellant sent correspondence to counsel confirming that he is purporting to
Although counsel submits his request to withdraw premised upon the indigent appellant's purported "discharge" of him and expressed desire to represent himself, counsel actually argues against granting the Motion, citing several reasons. First, according to counsel, the constitutional right to self-representation is grounded in the Sixth Amendment of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. Counsel argues that in 2000, the U.S. Supreme Court held that there is no Sixth Amendment right to self-representation for purposes of appeal. See Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). Counsel asserts that this Court's cases holding that there is a right to self-representation for purposes of appeal have consistently cited to the U.S. Supreme Court case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Faretta held that the Sixth Amendment established a right to self-representation
Second, counsel argues that even if this Court were to recognize a right to self-representation on appeal under the Pennsylvania Constitution, the right is not absolute. Instead, this Court has indicated that it will limit the right to self-representation when it would lead to unnecessary delay or disruption of the judicial process. See Commonwealth v. Rogers, 537 Pa. 581, 645 A.2d 223, 224 (1994) (no Grazier
Third, counsel makes a brief averment that even if this Court were to recognize a right to self-representation on appeal under the Pennsylvania Constitution, we should not extend the right to capital appeals. Counsel also asserts that he was prepared to submit a brief in this matter, as required, on August 11, 2010, again suggesting that allowing appellant to proceed
The Commonwealth has not filed a substantive reply to the issues raised by counsel. Instead, the Commonwealth has filed a No Answer Letter in reply to the Motion to Withdraw. In the letter, the Commonwealth states that it "believes that the first inquiry in this matter needs to be whether or not the Appellant has a right to represent himself on this appeal." The Commonwealth offers no view on the merits of that first inquiry.
Counsel's withdrawal motion presents an issue, novel in Pennsylvania, respecting the question of entitlement to self-representation on appeal. When an appellate court, including this Court, has been presented with a timely request to proceed pro se on appeal, the court generally has remanded for a "Grazier hearing" to determine if the waiver of counsel is knowing, intelligent, and voluntary. In Grazier, which was decided before Martinez, this Court indicated that a defendant-appellant in a criminal case has a right to self-representation on appeal, citing to Ellis and Faretta.
Counsel, however, has identified a legitimate question as to Grazier's continuing vitality in light of the U.S. Supreme Court's subsequent pronouncement in Martinez; this Court has not had the opportunity to squarely address the High Court's Martinez decision.
Based on Martinez, counsel argues that this Court's finding that there is a federal constitutional to self-representation on appeal, as reflected by the procedure set forth in Grazier, has proven to be erroneous. More specifically, counsel notes, our prior cases recognizing such a right was based on our understanding that the High Court's pronouncement in Faretta applied to appeals as well as trials, and Martinez now definitively establishes that this is not the case.
Counsel is correct to the extent that he argues that our cases recognizing a right to self-representation for purposes of appeal were largely based on Faretta, and therefore, the U.S. Constitution. See Grazier, supra; Ellis, supra. This Court has not considered or determined whether there is an independently secured right to self-representation on appeal under the Pennsylvania Constitution. Unlike the federal Constitution, the Pennsylvania charter specifically recognizes a right to appeal. PA. CONST. art. V, § 9. But, our Constitution is silent concerning the right to counsel on appeal,
Counsel, however, speaks too narrowly when he argues that this Court must recognize a right to self-representation for purposes of appeal under the Pennsylvania Constitution before we may determine to grant the Motion to Withdraw and permit appellant to proceed pro se. The Martinez Court's holding that the states are not required to permit self-representation on appeal as a federal constitutional matter, and its concomitant notation that the states can recognize such a right under state governing charters, does not mean that a state can only reserve or confer such a right via an explicit state constitutional provision. Instead, such a right could be recognized or conferred as a matter of policy or indulgence by statute, court rule, or decisional law.
Although counsel identifies an important and open question concerning the right to self-representation on appeal, we ultimately find that we need not resolve the question in order to decide the instant Motion to Withdraw. Rather, for purposes of decision, we may assume that there is a right to self-representation on appeal in Pennsylvania; yet, even so, as counsel recognizes in his alternative argument, the right, even if deemed constitutionally-based, is not absolute. See, e.g., Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d 849, 863 (1998).
In Rogers, supra, this Court considered whether the appellant Rogers could invoke a right to self-representation after counseled appellate briefs were filed. Rogers sought to waive his right to counsel on the basis of appellate counsel's alleged ineffectiveness. Rogers also filed a pro se supplemental brief purporting to amend the counseled brief and add new issues. The Superior Court denied the request and refused to consider the additional issues. Upon further review in this Court, we first noted that it was well-settled that "a criminal defendant or appellant has the right to proceed pro se at trial and through appellate proceedings." Rogers, 645 A.2d at 224 (citing Faretta, Ellis, and Pa.R.Crim.P. 121
Similarly, in the context of the right to self-representation for purposes of trial, this Court has noted that the right may be waived or limited when not timely invoked. See Jermyn, 709 A.2d at 863. In Jermyn, the appellant sought to represent himself for purposes of the penalty phase of a capital murder trial. The trial court denied the request as untimely. On appeal to this Court, Jermyn argued that he was entitled to forward his request during the pendency of the trial because the sentencing phase of a capital trial is distinct from the guilt phase. In finding that the lower court did not abuse its discretion, we indicated that there was a timeliness aspect to any such request; further, we noted, courts have refused such requests based on the need to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury. Id.
The instant case is one step removed from either Rogers or Jermyn, as the appellate briefs have not yet been filed and the concerns on appeal are different from those at trial. Nevertheless, the cases strongly and logically suggest that a request to proceed pro se, and a concomitant motion to withdraw, should be denied when forwarded at this late stage.
Accordingly, under the circumstances described above, we will deny counsel's Motion to Withdraw. Counsel is directed to file the brief in this matter within fifteen days from the date of this decision. Furthermore, counsel's Motion to File Briefs and/or to Present Oral Argument is also denied.
Justices SAYLOR, BAER, McCAFFERY, ORIE MELVIN join this opinion.
Justice EAKIN files a concurring opinion.
Justice TODD concurs in the result.
Justice EAKIN, concurring.
I join the finding that the motion to withdraw should be denied because of untimeliness, though counsel acted entirely properly in filing the motion. I do not join the discussion of a "right to self-representation";
Thereafter, in our Ellis opinion, we adverted to the fact that the Superior Court had cited to Article V, Section 9 and Article I, Section 9 of the Pennsylvania Constitution, as well as Faretta, in addressing the hybrid representation issue. Our independent analysis of the question, however, did not include any references to the Pennsylvania Constitution. Instead, we reiterated what we had previously stated in Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811, 821 (1985), wherein we merely cited Faretta for the general proposition that a defendant has the right to proceed without counsel. Ellis, 626 A.2d at 1139.