Commonwealth v. Rogers , 537 Pa. 581 ( 1994 )

OPINION OF THE COURT

CAPPY^*, Justice.

The question before this Court today is whether the appellant, Alphonso Rogers, has a constitutional right to dismiss counsel and proceed pro se before the Superior Court after appointed counsel has filed appellate briefs. For the following reasons, we hold that Appellant has no such right and therefore affirm the order of the Superior Court.

Appellant was convicted of rape,¹ two counts of involuntary deviate sexual intercourse,² burglary,³ robbery⁴ and two counts of simple assault.⁵ A sentence of twelve to thirty years imprisonment was imposed. In 1985, Appellant filed a petition under the Post Conviction Hearing Act, 42 Pa.C.S. §§ 8541-9551,⁶ seeking a new trial and reconsideration of sentence. After a hearing, the request for a new trial was denied, but reconsideration of sentence was granted. A sentence of ten years and eight months to twenty-three years imprisonment was then imposed. Appellant filed a motion to modify this sentence, which motion was denied. The Superior Court affirmed. 426 Pa.Super. 641, 620 A.2d 1237. The present appeal, by allowance, ensued.

Appellant was represented by counsel when he appealed to the Superior Court. After counsel filed a brief for that appeal, Appellant filed a motion seeking to waive his right to counsel. The motion alleged that counsel was ineffective. Appellant also filed a pro se supplemental brief which purported to amend counsel’s brief and raise additional issues. The Superior Court denied the motion to waive counsel, and affirmed without considering any of the matters raised by Appellant pro se.

Appellant, proceeding pro se in the present appeal, contends that he has a constitutional right to dismiss counsel and proceed pro se before the Superior Court. He also claims that, when his 'pro se brief was filed in that court, appellate counsel should have petitioned for a remand to determine whether the waiver was a knowing and voluntary one. We disagree.

It is well settled that a criminal defendant or appellant has the right to proceed pro se at trial and through appellate proceedings. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993); Commonwealth v. Monica, 528 Pa. 266, 597 A.2d 600 (1991); Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978); Pa.R.Crim.P. 318. However, we do not agree that a criminal appellant may terminate counsel after the time of counsel’s filing of appellate briefs simply because he wishes to file pro se appellate briefs.

In Ellis, this Court upheld the Superior Court’s practice of not reviewing pro se briefs in cases where counseled briefs have been filed. Additionally, we noted that appellants who wish to proceed pro se can petition to terminate their legal representation. Although we did not reach the question of whether an appellant can terminate counsel after the appellate process has already begun, we stated:

A represented appellant may petition to terminate his representation; he may, acting pursuant to the rules of criminal procedure, proceed on his own behalf. Conversely, he may elect to allow counsel to take his appeal, but, should counsel not prevail, assert counsel’s ineffectiveness at a later time and, thus indirectly, assert the claims he would have made on direct appeal. The only thing he may not do is confuse and overburden the court by his own pro se filings of briefs at the same time his counsel is filing briefs on his behalf

Ellis, 534 Pa. at 183-84, 626 A.2d at 1141 (emphasis added).

Clearly, under Ellis, an appellant has the right to terminate appellate representation prior to the filing of an appeal. However, Ellis specifically condemns the practice of filing separate pro se briefs which “confuse and overburden the court.” Allowing Appellant in the case sub judice to terminate counsel and proceed pro se on amended and supplemented briefs would, we believe, result in just the confusion and overburdening of the court we proscribed in Ellis.

We therefore find that it is appropriate to prohibit such a tactic and to require an appellant to remain with counsel through the appeal, once counsel has filed briefs. We also emphasize that this policy would in no way undermine an appellant’s interest in adequate representation. As stated in Ellis, an appellant is always free to assert appellate counsel’s ineffectiveness at a later time. Ellis, 534 Pa. at 181-82, 626 A.2d at 1140.

Accordingly, the order of the Superior Court is affirmed.

MONTEMURO, J., did not participate in the consideration or decision of this case.^** FLAHERTY, J., files a dissenting opinion in which ZARPALA, J., joins.

* This case has been reassigned to this author.

1 . 18 Pa.C.S. § 3121.

2 . 18 Pa.C.S. § 3123.

3 . 18 Pa.C.S. § 3502.

4 . 18 Pa.C.S. § 3701.

5 . 18 Pa.C.S. § 2701.

6 . Repealed in part and modified in part and renamed the Post Conviction Relief Act, 42 Pa.C.S. 9541-9546, effective April 13, 1988.