Commonwealth v. El

CONCURRING OPINION

Chief Justice CASTILLE.

I join the Majority Opinion on the primary issue presented, see Majority Op., at 181-38, 977 A.2d at 1160-66, but write to *143distance myself from footnote seven and the ensuing discussion of what is required of the trial court — and what is not required of the defendant — when the court is faced with a bald and untimely request to proceed pro se. I certainly agree that the trial court did not abuse its discretion here, but I respectfully disagree with the Majority’s formulation of the standard by which to measure that discretion both in this case and going forward. Specifically, unlike the Majority, I believe that the failure of appellant or his counsel to proffer any reason for the belated request, as well as their failure to suggest that the trial court was obliged to inquire further when the counseled appellant made the bald request, alone proves that the trial court did not abuse its discretion. Where, as here, the tardiness of the pro se request renders the “right” to self-representation non-absolute, the defense does not proffer a basis for the request, and defense counsel does not ask that the court make further inquiry of his client, I do not believe that the trial court has any obligation beyond issuing its ruling.

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. *144Thus, the Majority appears to hold that: (1) unless there is a basis to believe that the belated request will cause delay or disruption,1 “the best course is [for the trial court] to make some inquiry, however brief, into the reason for the request;” (2) notwithstanding that “best course,” an inquiry by the court “is not mandatory in all instances;” and (3) no inquiry was required here, because “the timeline of the proceedings and circumstances surrounding them provide ample support for denying the request to proceed pro se.” Id. at 142, 977 A.2d at 1167. Although the formulation is made unclear both by the qualifiers and by the application here, the Majority appears to approve the notion that whatever obligation of articulation and inquiry obtains in this area rests solely upon the trial judge, and not upon the counseled defendant. I respectfully disagree with this backwards “discretionary” construct. Where the defendant is counseled, defense counsel, not the trial judge, is the advocate for the defense. A lapse by counsel, of course, may then become the basis for a collateral attack premised upon counsel’s deficient stewardship.

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 *145represented himself), it returned a sentence of death. On direct appeal to this Court, the defendant argued that the trial court had erred in denying his request to proceed pro se without holding a colloquy pursuant to Pa.R.Crim.P. 121. The Commonwealth argued that the defendant had waived the Rule 121 claim by not objecting or requesting a colloquy in the court below, and that the claim was therefore best addressed as one of ineffective assistance of counsel. The majority rejected the Commonwealth’s argument, reasoning that Rule 121 “sets forth the procedure a judge must follow to determine whether the waiver of counsel was made knowingly, voluntarily, and intelligently” and therefore “it is up to the trial court, and not counsel, to ensure that a colloquy is performed if the defendant has invoked his right to self representation.” Id. at 437-38. The majority qualified this statement, however, by noting that the trial court only has the duty to insure that the colloquy is conducted if the defendant’s request to proceed pro se is “timely and unequivocal.” Id. at 438. If the request is not timely, the majority noted, the question of whether to permit the defendant to waive counsel is left to the sound discretion of the trial court. Id. Ultimately, the majority determined that the defendant’s invocation of the right to proceed pro se was not clear and unequivocal, and thus the trial court did not err in failing to conduct a Rule 121 colloquy. Id. at 439-40.

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 *146invite 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, Rule 121, which imposes the unusual sua sponte duty upon the trial judge that was discussed in Davido, does not apply. Davido (and Rule 121) stands as an exception to the general rule that it is up to the litigants and their counsel, and not the trial court, to flesh out objections and make necessary inquiries. There being no basis to find a duty upon the part of the trial judge to assume the role of defense counsel, I would make clear that, in a case involving an untimely request to proceed pro se, the obligation is upon the defense to make a proffer or supporting argument, or to conduct an inquiry on the record. I would place no obligation upon the trial court to make an inquiry, in place of the defendant and his lawyer.

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.”

. It is difficult to imagine a scenario where a belated request to proceed pro se (i.e., one by definition made after meaningful proceedings already have begun) does not cause delay or disruption. Thus, thankfully, there seems to be little practical room for the Majority's “best course,” court-should-sna-spoKte-inquire alternative.

. See Indiana v. Edwards, - U.S. -, -, 128 S.Ct. 2379, 2387-88, 171 L.Ed.2d 345 (2008) (holding that defendants who, though competent, nevertheless have mental problems that may affect their ability to proceed pro se, may be denied the right to proceed pro se).