Commonwealth v. Shaffer ( 1977 )

OPINION OF THE COURT

PACKEL, Justice.

This case presents the issue of whether the rejection of the services of a public defender in purported reliance on the advice of a para-professional law clinic in a prison constituted a valid waiver of counsel. The issue is of importance because of the increasing use of para-professionals as still another method of assuring prisoners a meaningful access to the courts. “Among the alternatives are the training of inmates as paralegal assistants to work under lawyers’ supervision, the use of paraprofessionals and law students, either as volunteers or in formal clinical programs . . .” Bounds v. Smith, 430 U.S. 817, 831, 97 S.Ct. 1491, 1499, 52 L.Ed.2d 72 (1977).

The facts were developed at a post-conviction hearing of the appellant, who had been convicted of murder in the first degree and sentenced to life imprisonment. After a direct appeal from the sentence, the appellant followed the suggestion of the representative of the Para-Professional Law Clinic in Graterford Prison and several times demanded that the public defender send him the trial transcript. Notwithstanding the defender’s repeated remonstrances that he could not handle the appeal properly without the notes of testimony, the appellant insisted that he must have the notes even though he understood that his attorney could not continue to represent him. The appellant, in receiving the notes of testimony, signed the following statement:

“Knowing that the Public Defender’s Office would be handicapped without my records, I still desire to have them and specifically request they be forwarded to me with the understanding that the Public Defender’s Office will not be able to represent me in the future.”

The record shows that this Court had continued the argument on the direct appeal because no one appeared for the appellant. The appellant then asked for the appointment of counsel. The same public defender was reappointed. Thereafter, he requested the return of the notes of testimony. Because of non-compliance he requested this Court for leave to withdraw from the appeal. Permission was granted.

The appellant by letter to the trial judge again asked for the appointment of counsel for the appeal. Counsel was not appointed. The appellant did nothing further for some twenty-nine months and this Court, after the grant of three continuances during that period, filed a judgment of non pros. Subsequently, the post-conviction hearing petition was filed and the appellant was furnished independent counsel.

The right to counsel for an appeal is not unqualified. For example, an appellant entitled to free counsel is not necessarily entitled to counsel of his own choice. Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968). Without elaborating on other limitations on the right to counsel for an appeal, the appellant’s informed rejection of appointed counsel by virtue of his conduct did not entitle him to another counsel to continue with the appeal. Refusal, without good cause shown, to accept the counsel twice appointed by the court was properly treated as a competent and intelligent waiver of the right to counsel.

The deliberate disregard of the advice of appointed counsel which leads to the loss of his services, without good cause shown, is not to be excused because of a purported and unjustifiable reliance on the advice of non-lawyers. Therefore, a conclusion of ineffective assistance of counsel is unwarranted in this case.

A remaining question is whether the right of direct appeal has been improperly denied to the appellant. He chose not to deal with the public defender appointed for him and on December 31, 1970, asked this Court for a continuance, which was granted. A second continuance was granted by this Court on April 29, 1971, and again the public defender was appointed to help him. This help was again refused. This Court granted a third continuance on May 8, 1972. Finally on May 21, 1973, this Court entered a judgment of non pros.

An appellant who without justification chooses to refuse to deal with his appointed counsel is still subject to the orderly administration of justice. He cannot properly assert additional privileges because he chooses to be without counsel appointed for him in order to get other counsel. Even though he was a lay person, this Court acted properly in bringing the appeal to an end when, after three continuances, there was no further prosecution of the appeal. The record establishes no valid. reason for an attack of the judgment of non pros entered by this Court.

The dismissal of the post-conviction hearing petition is affirmed.

ROBERTS, J., filed a dissenting opinion in which MANDERINO, J., joined. NIX, J., dissents.