Com. v. Fountain, K. ( 2023 )

J-A13030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN SCOTT FOUNTAIN :
:
Appellant : No. 944 MDA 2022
Appeal from the Judgment of Sentence Entered January 27, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006836-2018
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED DECEMBER 14, 2023
I am constrained to agree with my esteemed colleagues that Fountain
did not expressly waive his right to counsel at any point in the proceedings,
though he did forfeit that right prior to commencement of his first and second
trials based on his dilatory and obstructionist behavior. I also acknowledge
that, pursuant to our caselaw as it relates to Pa.R.Crim.P. 121, the trial court’s
error in failing to colloquize Fountain before allowing him to proceed pro se at
the third trial entitles him to relief, despite his prior forfeiture. However, I
write separately to advocate that our High Court expand the “ongoing waiver”
rule, which we adopted in Commonwealth v. Phillips, 141 A.3d 512(Pa.Super. 2016), to apply to situations involving the forfeiture of the right to
counsel by a defendant’s actions. Doing so would prevent future scenarios
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* Former Justice specially assigned to the Superior Court.
J-A13030-23
where, like here, a defendant knowingly abuses the legal system and clogs
the administration of justice through misconduct serious enough to warrant
forfeiture of counsel, yet is rewarded with a new trial because of a technical
error despite no change in circumstances following the forfeiture.
I begin with a brief overview of the ongoing waiver doctrine. That rule,
which this Court adopted in 2016, states that “once a defendant has made a
competent waiver of counsel, that waiver remains in effect through all
subsequent proceedings in that case absent a substantial change in
circumstances.” Phillips, supra at 521. We expressly declined to delineate
the “facts under which we would find a substantial change in circumstances.”
Id. at 521 n.4. However, in that case, this Court did note that the passage of
a few months did not constitute such a change, and, therefore, a waiver of
counsel made at a suppression hearing endured through a later hearing on a
motion in limine. Id. at 521.
As the doctrine is a relatively new addition to Pennsylvania law, it
appears to have been applied exclusively to circumstances where there was
an explicit waiver of the right to counsel following a Rule 121 colloquy. My
review of the law does not reveal that it has been applied to circumstances
involving forfeiture of that right through a defendant’s actions. However, I
see no principled reason why it should not apply with equal force to loss of
counsel by forfeiture, and therefore call for its extension to any situation where
a defendant enters pro se status, whether through waiver or forfeiture.
Indeed, if the rule were not applied consistently in both types of cases, then
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the law would potentially penalize those who knowingly waive the right to
counsel by subjecting them to an ongoing waiver over those who, through
deliberate and serious misconduct, forfeit that right and then continue to game
the judicial system. In other words, it would reward and incentivize a
defendant’s improper conduct.1
If the doctrine applied to the instant case, I deem it clear that Fountain’s
relinquishment of the right to counsel, occurring prior to the second trial,
would remain steadfast through his third trial. There was no substantial
change of circumstances between the mistrial at the conclusion of Fountain’s
second trial and the beginning of his third that would entitle him to relief.
Although approximately ten and one-half months had elapsed during that
time, this lapse alone did not create any change in circumstance. See
Phillips, supra at 521.
Additionally, the certified record shows that Fountain never made a
request for counsel before his third trial began. Rather, he continued to assert
to the trial court that he wished to represent himself, noting only that he
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1 Additionally, this expansion of the ongoing waiver rule would not conflict with
our law stating that “a waiver of counsel colloquy must occur at every ‘critical
stage’ of a criminal proceeding.” See, e.g., Commonwealth v. Baker, 464
A.2d 496, 499 (Pa.Super. 1983). In my view, this colloquy requirement only
arises in situations where a defendant has not already waived or forfeited his
right to counsel. See Commonwealth v. Phillips, 141 A.3d 512 (Pa.Super.
2016) (stating that our cases do not mandate that “a waiver-of-counsel
colloquy must be repeated at every critical stage of the prosecution. Instead,
they highlight the fact that the question of waiver may arise for the first time
at various stages, and that when it arises, if ever, the court must conduct a
thorough waiver-of-counsel colloquy.” (emphasis in original)).
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wanted to have different standby counsel appointed. He also took no steps to
correct the court when it subsequently informed the potential jurors during
voir dire that he was proceeding pro se. Id. In the same vein, standby
counsel never objected to or clarified these remarks. In short, it was clear to
everyone that Appellant was continuing to represent himself without the
benefit of counsel throughout the third trial, just as he had in his prior two
trials based upon the forfeiture.
Under the facts before us, I see no “substantial change in
circumstances” between Appellant’s forfeiture of counsel and the
commencement of his third trial. Phillips, supra at 521. Hence, if
defendants who achieved pro se status through their own bad acts were
treated the same as, instead of better than, those who voluntarily relinquished
their right to counsel, Fountain would have no valid claim of error.
However, bound to faithfully apply the precedent that now constrains
me, I concur in the Majority’s disposition of this appeal. To prevent a situation
like this from arising again, I ask our Supreme Court to expand the ongoing
waiver doctrine so that it applies to pro se status generally, including a
defendant’s forfeiture of the right to counsel by his conduct.
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